ALRC terms of reference finalised

The Government has announced the finalised terms of reference for the Australian Law Reform’s inquiry into copyright:

I refer to the ALRC for inquiry and report pursuant to subsection 20(1) of the Australian Law Reform Commission Act 1996 the matter of whether the exceptions and statutory licences in the Copyright Act 1968, are adequate and appropriate in the digital environment.

Amongst other things, the ALRC is to consider whether existing exceptions are appropriate and whether further exceptions should:

  • recognise fair use of copyright material;
  • allow  transformative, innovative and collaborative use of copyright materials to create and deliver new products and services of public benefit; and
  • allow appropriate access, use, interaction and production of copyright material online for social, private or domestic purposes.

As one might expect, the ALRC is directed not to duplicate work being undertaken by other inquiries and the like. It turns out that, amongst other things,  these include

not duplicate work being undertaken on: unauthorised distribution of copyright materials using peer to peer networks; the scope of the safe harbour scheme for ISPs; a review of exceptions in relation to technological protection measures; and increased access to copyright works for persons with a print disability.

Anyone know what that work is?

The ALRC is required to deliver its report by 30 November 2013.

Terms of reference here.

ALRC to get new copyright reference

The Commonwealth Attorney General has announced the appointment of Prof. Jill McKeough to lead a review by the Australian Law Reform Commission into the operation of copyright in the digital environment.

Prof. McKeough is Dean of the University of Technology Sydney and a well known IP luminary.

According to the Press Release:

“The Gillard Government is determined to get the balance right between providing incentives for creators and innovators and encouraging new opportunities within a digital economy including via the National Broadband Network.

“The inquiry will consider whether the exceptions in the Federal Copyright Act are adequate and appropriate in the fast paced digital environment,” Ms Roxon said.

Draft terms of reference are to be released soon, for consultation.

The ALRC has famously produced the excellent Designs report which led to the Designs Act 2003 and also a report into Gene Patenting. Hopefully, this inquiry will get the resources and the time to meet the high standard set by those efforts.

Lid dip: Peter A. Clarke

The Digital Economy Down Under

Minister Conroy released on 14 July a report Australia’s Digital Economy: Future Directions, which he has described as a road map for Australia’s digital economy future.

Amongst other things, in (sort of, kinda, a bit) similar vein to the EU’s Commissioner Neely, the report notes:

The digitisation trend is changing customer habits and expectations. Increasingly, they expect an on demand experience, that is, the ability to enjoy what they want, when they want, on the device they want. This has been facilitated by digital video recorders and music and video sites that offer on–demand content for streaming or downloading.

The digitisation trend is changing customer habits and expectations. Increasingly, they expect an on demand experience, that is, the ability to enjoy what they want, when they want, on the device they want. This has been facilitated by digital video recorders and music and video sites that offer on–demand content for streaming or downloading.

but has attracted attention in the press for foreshadowing a crack down on file sharing.

Certainly, at p 19 (of the Snapshot), the report states:

Several rightsholder groups in Australia argued that a role for Government exists in addressing the apparent popularity of peer–to–peer file sharing of music and movies, without the necessary permissions of the relevant copyright owners. File–sharing is cited by the content industry as a barrier to further investment in sustainable and innovative content initiatives in Australia. However, some of the solutions proposed by rightsholders to address file-sharing have been criticised as raising issues of due process and consumer rights.

The Australian Government recognises a public policy interest in the resolution of this issue. The Government is currently working with representatives of both copyright owners and the internet industry in an effort to reach an industry–led consensus agreement on an effective solution to this issue.

Earlier, a pp 12-3, the Snapshot foreshadows further consideration of the scope and availability of the ‘safe harbours’ from copyright infringement:

At present it is unclear whether the present scheme works effectively for some types of online service providers that have subsequently grown in popularity since the scheme’s introduction. The platforms provided by newer online service providers allow social engagement, content distribution and political communications, through features frequently referred to as user–generated content and Web 2.0. This includes social networking sites such as MySpace, Bebo and Facebook (which launched in 2003–05), the online photo sharing site Flickr (which launched in November 2004), and video sharing sites like YouTube and Vimeo (which launched in 2004–05). ….

The limited availability of the safe harbours to those who qualify under that legislative triumph of drafting encompassed in the definition of “carriage service provider” has been under review now almost since before it was enacted. One wonders what there can be left to consider!

Also, with reference to Gov 2.0, the report does encourage Government to open access to appropriate categories of public sector information. I guess the devil lie in the detail of what is “appropriate”. For example. (Trying very hard not to mention that Senator Conroy is also the Minister responsible for the Government’s plans to censor the internet.)

In a positive move, consistent with the Gov 2.0 approach, the report has been released under a creative commons licence.

You can find the Snapshot (a 35 page synopsis) and the full report here in various formats.

Digital Economy – Future Directions consultation

The convolutedly named The Department of Broadband, Communications and the Digital Economy has issued a consultation paper for industry on the Digital Economy Future Directions.

Apparently, the consultation draft arises from workshops held in August and September 2008.

There is considerable useful detail about the state and composition of the digital economy in Australia and questions on a range of important issues are posed.  In connection with the regulatory framework issues, the following questions are raised:

Should the existing copyright safe harbour scheme for carriage service providers be broadened?  

Does Australia’s copyright law unreasonably inhibit the operation of basic and important internet services? If so, what are the nature of such problems and practical consequences?  How should these be overcome? 

Is there non-copyright legislation that is directly relevant to digital economy businesses that create uncertainty or barriers? 

One might have thought, at a minimum, that the scope of the so-called copyright ‘safe harbors’ should be expanded from the indecipherable ‘carriage service providers’ at least to the extent of ‘service providers’ permitted under the Free Trade Agreement (see art. 17.11.29).  One might also speculate that it would be preferable to adopt a global framework for such service provider liability rather than adopting inconsistent and contradictory regimes for different subject matter such as copyright and defamation etc.

The paper specifically excludes from its scope questions about the National Broadband Network.

The consultation paper is available in pdf or Word format via here.

Better hurry, you have until 11 February 2009 to get your pearls in.