tpm

It’s Christmas – so it must be time for copyright reforms

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At long last and just in time for Christmas, the Communication Branch of the Department of Infrastructure, Transport, Regional Development and Communications has published the long awaited exposure draft Copyright Amendment (Access Reform) Bill 2021 and – a bit of a surprise – a Review of Technological Protection Measures Exceptions.

To quote from the “have your say” page, the exposure draft amendment bill includes 5 main reform measures:

  • Schedule 1—Limitation on remedies for use of orphan works
  • Schedule 2—New fair dealing exception for non-commercial quotation
  • Schedule 3—Update and clarify library and archives exceptions
  • Schedule 4—Update and restore education exceptions
  • Schedule 5—Streamline the government statutory licensing scheme.

There are also five, 5!, schedules of “additional minor and technical amendments”!

What follows is a very rough and ready summary of a couple of “bits”.

Quotation

The exposure draft posits a new fair dealing defence in respect of public copyright material for the purposes of either non-commercial quotation or quotation for a commercial purpose in relation to a product or service if the quotation is immaterial to the value of that product or service.

The defence would be available only to libraries, archives, educational institutions, the Commonwealth or a State, or someone authorised by them, or a person or organisation for the purpose of research.

There are also other conditions.

The discussion paper includes some examples of things which might fall within or without the defence.

Orphan Works

The exposure draft would introduce a new defence to infringement where someone reproduces etc. copyright material after a reasonably diligent search has failed to identify the copyright owner or, if the owner be identified, they cannot be contacted.

If the author is known, he or she or they must also be identified in the reproduction etc. where that is reasonably practicable.

Then, if the copyright owner pops up, either the owner or the user can apply to the Copyright Tribunal for orders to fix the terms of use. The Tribunal may make orders only to the extent it considers them reasonable.

TPM Review

Under the Australia-US Free Trade Agreement, Australia is required to review its laws relating to technological protection measures every four years.

Apparently, the last review was in 2017. So it’s time for another one.

The discussion paper does say the review is to look at whether the existing exceptions are fit for purpose, need to be repealed or modified and whether new exceptions are required.

If you want a new exception, s 249 sets out criteria that need to be satisfied before the Minister could implement it. These include provision of credible evidence about the matters set out in that provision.

If you are moved to provide submissions, they should be sent in by 11 February 2022.

Have your say page

Exposure draft  Copyright Amendment (Access Reform) Bill (pdf)

Discussion paper (pdf)

There are also Word versions of the exposure draft bill and the discussion paper available via the Have your say page.

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TPM exceptions review

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Following my post on the ALRC’s reference re exceptions in the digital environment, a couple of people kindly pointed out the Attorney General’s department is also conducting a review of the exceptions to technological protection measures.

A technological protection measure is … well, anyway, since the Sony v Stevens stuff up, the definition has been “fixed up” to close that gulf by adding access control technological protection measure as well.

Section 116AN provides for a number of exceptions – e.g. interoperability, encryption testing, security testing, online privacy, law enforcement and national security, libraries – and s 116AN(9) provides a regulation making power to create additional exceptions.

The existing “additional” exceptions are found in Schedule 10A of the Copyright Regulations.

The US Copyright Office is currently a large way through its 5th 3 year “ad hoc” rulemaking exercise for the counterpart arrangements under the US Act.

The review’s home page is here and the pdf of the issues paper is here.

Submissions about the exceptions should be in by 17 August 2012

Responses to those submissions should be in by 5 October 2012.

(Congratulations to the AGD for a sensible, structured approach to submissions which recognises that some people will definitely have something to say about what other people submit!)

Lid dip:

Alison Bradshaw

@ADA_ellenbroad

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Copyright reform agenda

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The Commonwealth Attorney General’s opening address to the Blue Skies conference is here.

Some excerpts:

International reforms:

While recognising that the challenges of the digital era are a global, not just national, issue, the Attorney General identified access to cultural works by the visually impaired as an area for early action:

An example of one area in which I am particularly keen to see a result this year in the international arena is overcoming copyright barriers for visually impaired people in accessing copyright works in suitable formats. I understand that internationally, only five per cent of all works are available in accessible formats for the visually impaired.  This is an unacceptable statistic and an acute problem for developing countries.

If there were hisses and boos from the audience, let’s hope it was for the right reasons!

On the domestic front:

  • a straight bat played to yesterday’s iiNet decision
  • a consultation paper will be released soon on who should be the beneficiaries of the ‘safe harbour‘ regimes, currently limited to the indecipherable “carriage service providers“

For example, the definition excludes entities that do not provide network access but provide online services – Google and Yahoo are obvious examples of this category.

(That is the Attorney General’s example, not mine.)

  • possible introduction of a new “ad hoc” exemption to the technological protection measures (see e.g. s 116AN(9))

The Copyright Advisory Group has approached me for an additional exception to allow circumvention of technological protection measures for certain education purposes.

In particular they have sought an exception that would allow schools to change the format of films from DVD to MP4 for teaching purposes.

It would seem that what is to be referred still involves considerable clarification. One area flagged:

I believe there would be merit in examining some exceptions under our law in the context of the online environment and whether the correct balance exists.

Another which the ALRC will not be allowed to cut across:

It will be important to not duplicate work undertaken by Government on various policy issues, or in the course of related reviews -for example the Government’s Convergence Review.

So, it seems the Convergence Review will not just be “regulatory”.

Lid dip: Jane Treleaven

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New DMCA exemptions

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The Librarian of Congress has announced 6 new categories of exemption from the prohibitions under US law against circumventing DRM mechanisms (what we call TPM and ERMI).

The (Australian) Copyright Council has a nice bullet point summary.

Jonathon Bailey, at Plagiarism Today, looks at the politics and the ramifications from a practical perspective. I wouldn’t be at all surprised if he didn’t spend a fair bit of time on the issue in his weekly podcast, so check back to his site on, say, Monday.

Now, the Librarian of Congress’ exemptions are applicable under US law only. Our law does contemplate the introduction of additional, so-called “ad hoc” exemptions against circumventing access control tpm, by means of the Regulations: s 116AN(9), Sch. 10A of the regs has 6 nice categories of exemption. These were added way back in 2006 around the time we had a review to find out if we should have some more. Wonder if someone, somewhere is thinking we should investigate some more?

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