Copyright modernisation downunder – a consultation paper

The Australian government has issued a consultation paper on copyright modernisation: Copyright modernisation consultation paper.

The three main issues on which consultations are being undertaken are:

  1. flexible exceptions
  2. contracting out of exceptions; and
  3. access to orphan works.

The consultation paper arises from the Government’s response to the Productivity Commission’s final report into Intellectual Property Arrangements indicating that these matters required further consideration.

Following the Productivity Commission’s report, the consultation paper sets out an interesting framework for considering how to approach these matters. According to the consultation paper, the proposals “recognise copyright’s role as part of a wider intellectual property system that is:

  • effective—The system should be effective in encouraging additional ideas and in providing incentives that ensure knowledge is disseminated through the economy and community.
  • efficient—The system should provide incentives for IP to be created at the lowest cost to society.
  • adaptable—The system should adapt to changes in economic conditions, technology, markets and costs of innovating.
  • accountable—The policies and institutions that govern the system, and the way that changes are made to them, need to be evidence-based, transparent, and reflect community values.” [1]

The consultation paper proposes seven questions:

Flexible exceptions

Question 1
To what extent do you support introducing:
• additional fair dealing exceptions? What additional purposes should be introduced and what factors should be considered in determining fairness?
• a ‘fair use’ exception? What illustrative purposes should be included and what factors should be considered in determining fairness?

Question 2
What related changes, if any, to other copyright exceptions do you feel are necessary? For example, consider changes to:
• section 200AB
• specific exceptions relating to galleries, libraries, archives and museums.

Contracting out of exceptions

Question 3
Which current and proposed copyright exceptions should be protected against contracting out?

Question 4
To what extent do you support amending the Copyright Act to make unenforceable contracting out of:
• only prescribed purpose copyright exceptions?
• all copyright exceptions?

Access to orphan works

Question 5
To what extent do you support each option and why?
• statutory exception
• limitation of remedies
• a combination of the above.

Question 6
In terms of limitation of remedies for the use of orphan works, what do you consider is the best way to limit liability? Suggested options include:
• restricting liability to a right to injunctive relief and reasonable compensation in lieu of damages (such as for non-commercial uses)
• capping liability to a standard commercial licence fee
• allowing for an account of profits for commercial use.

Question 7
Do you support a separate approach for collecting and cultural institutions, including a direct exception or other mechanism to legalise the non-commercial use of orphaned material by this sector?

In a final section of the consultation paper, a number of “ongoing concerns raised by federal cultural and collecting institutions”[2] are identified for consultation. Apparently, these “arts portfolio agencies” are concerned that copyright is being used to inhibit their ability to “provide broad-based access to their collections”. The consultation paper explains:

This includes concerns over exceptions being tied to an institution’s physical location, and thus preventing offsite supply of material. At other times, exceptions permit digitisation of content but not providing digitised content to users. Some arts portfolio agencies expend a disproportionate effort on copyright due diligence, especially when identifying and locating authors of works. This can discourage institutions from digitising, promoting or providing access to their collections. As a result, copyright law may inhibit them from adopting modern cultural institution practices and engaging with Australians online. The Department notes that, at least in some cases, better online access would involve non-commercial use or the use of copyright material with low commercial significance.

Accordingly, the consultation paper questions whether the Copyright Act 1968 should be amended by:

  • adding a fair dealing exception for libraries and archives, which may provide scope for ‘off-site access’ to be provided to those wishing to use and access certain digitised collections;
  • expanding the scope of the current fair dealing exception for ‘research or study’ to include situations where a person has a family connection to the work;
  • refining the current s 200AB flexible exception for libraries and archives, including by removing existing restrictions on the provision only applying to ‘special cases’ and where another provision of the Copyright Act could not otherwise be relied on;
  • broadening the range of libraries to which document supply provisions can apply to libraries outside Australia—this would accommodate the prevalence of overseas Australians seeking access to library material.

Submissions should be provided to the Department of Communications and the Arts by 5pm on 4 June 2018.


  1. Productivity Commission, Intellectual Property Arrangements – Final Report p. 61ff.  ?
  2. These include the National Library of Australia, the National Film and Sound Archive, the National Gallery of Australia, the National Portrait Gallery, the Australian National Maritime Museum, the Museum of Australian Democracy and the Bundanon Trust. The consultation paper does point out, in addition, that there are many state and territory institutions of similar nature which may well have similar concerns.  ?

Selected links from the last week (or so)

Here is a selection of links to IP-related matters I found interesting this week:

Patents

Trade marks

Copyright

Designs

Not categorised

I hope you find something interesting. If you did or have a question, leave a comment or send me an email

The Canadian copyright ‘pentalogy’

Last year, the Supreme Court of Canada handed down 5 decisions on the same day relating to fair dealing and other issues arising from digital transmission of copyright material.

In a number of respects, its decisions are directly opposite to conclusions that have been reached by our High Court (one example – but it appeared to turn on different statutory language). In others, such as the ‘digital taxi’ theory, the issue may well be regarded as still highly controversial here.

Anyway, a number of Canadian experts have published  a book looking at the ramifications of these wide ranging decisions.

In an interesting experiment, you can buy it in the traditional way through the publisher or you may also download an ebook version for free. For more details, see the 1709 blog post.

No copyright in newspaper headlines

Bennett J’s reasons for ruling that Fairfax does not hold copyright in the Australian Financial Review’s headlines have now been published.

In conclusion, Bennett J stated:

159 As to the subsistence of copyright in the contended works, I have reached the following conclusions:

  • None of the ten selected headlines are capable of being literary works in which copyright can subsist.
  • Fairfax has failed to prove that any of the ten selected Article/Headline Combination is a discrete work of joint authorship in which copyright can subsist.
  • Copyright subsists in the Article Compilation and the Edition Work in each of the June and November editions as original literary works and this copyright is owned by Fairfax.
160 Reed takes the whole of each headline. As to whether Reed, in reproducing and communicating headlines of the AFR as part of the Abstracts, takes a substantial part of any of the contended works:
  • Even if the Article/Headline Combination constitutes a copyright work, Reed does not take a substantial part of such a work.
  • Reed does not take a substantial part of either the Article Compilation or the Edition Work.
161 Although it is not necessary to decide whether Reed is entitled to rely on the defences claimed, I nonetheless consider that:
  • Reed’s conduct in reproducing and communicating the AFR headlines as part of the Abstracts is a fair dealing for the purpose of reporting news such that Reed’s conduct would not constitute an infringement of copyright by reason of s 42(1)(b) of the Act;
  • Fairfax is not estopped from asserting that Reed’s reproduction and communication of AFR headlines in the Abstracts as part of the ABIX service amounts to infringement of its copyright in the contended works.
162 It follows that Fairfax’s application should be dismissed.

[160] is strikingly reminiscent of her Honour’s ruling at first instance in IceTV. As you will see from [161], her Honour also addressed the fair dealing defence and rejected Reed’s argument that Fairfax was estopped.

While the courts have been careful not to say there can never be copyright in film titles and the like, one wonders, if there wasn’t copyright in The Man Who Broke The Bank at Monte Carlo, whatever were they thinking?

The Australian (rather ironically given News Corp’s campaign) has some fun at Fairfax’ expense picking out some key points and repeats Alan Kohler’s question what would they have achieved commercially even if they succeeded?

Fairfax Media Publications Pty Ltd v Reed International Books Australia Pty Ltd [2010] FCA 984

How much to pay for a music download?

The Canadian Federal Court of Appeal has ruled that no royalty is payable for downloads (should that be “streaming”?) of those 30 second previews of music. Apparently, it falls with the fair dealing provisions for “research”. The “1709” blog has the story.

Meanwhile, last year, the Australian Copyright Tribunal accepted that music download services such as iTunes, Bigpond Music, Sony and Universal should pay composers a royalty of:

  • the higher of 9% of retail price or 9 cents per track, for music downloads; and
  • the higher of 8% of retail price or 8 cents per track,

for single track downloads. There is a sliding scale for the track rates where an album, rather than a single track, is downloaded.

As the price on iTunes is typically $1.69 per “song”, I guess the % rate will usually apply for single track downloads.

(This is just what the composers get paid for the transmission and reproduction on the ‘buyer’s’ computer; not what the record companies or performers (will) get.

The composers’ collecting societies, APRA and AMCOS, had started out trying to get 12% but, in the end, the monopolies and the monopsonistic buyer(s) wound up reaching agreement. Even the ACCC, after some twisting and turning seems to have gone along with the deal, perhaps in recognition of the fact that the Copyright Act specifically gives the Copyright Tribunal power to fix these rates.

By way of comparison, the Copyright Tribunal reported that the corresponding rates were:

• United Kingdom – 8%.
• Canada – 11%.
• United States – 9.1 cents.
The rate in the United States is a fixed monetary rate. The vast majority of single track downloads in the United States at present are supplied at a price of 99 cents per download. Thus the monetary rate is equivalent to 9.1% of the sale price.

Australasian Performing Right Association Limited and Australasian Mechanical Copyright Owners Society Limited [2009] ACopyT 2

AP charges for quotes

Another round in AP’s war on the internet:

Associated Press would like to charge you for any extracts you take from its website.

Starting price is US$12.50 for 5 – 25 words.

For example.

Apparently, it’s the (iCopy)right thing to do!

I guess that means “they” think that now you can pay for the “service” easily it won’t be fair use (USA only) or fair dealing.

Lid dip: priorsmart

Reblog this post [with Zemanta]