The Attorney-General has released a Copyright Enforcement Review: Issues Paper.
The Issues Paper begins with a welcome recognition that copyright plays an important role in “Australia’s creative ecosystem and broader economy”:
Copyright infringement may harm Australia’s creative ecosystem and broader economy by reducing or diverting income that creators of, and investors in, original material rely on for their financial sustainability. Copyright owners need to be able to take reasonable steps to protect and enforce their rights as part of a well-functioning copyright system. To this end, the current system includes a range of enforcement mechanisms (including industry-driven and statute-based mechanisms) to address unauthorised uses of copyright material. At the same time, it is important that consumers, service providers and other businesses are clear about when they can use copyright materials and in what circumstances.
Having noted the interests of both the creators and investors and consumers and others, the Issues Paper then declares the Government’s commitment to ensuring that copyright protects Australian artists through a fit-for-purpose enforcement regime:
The Government is committed to copyright laws that protect Australian artists and enable them to earn a living from their creative works. The Australian copyright enforcement regime must remain fit-for-purpose.
Accordingly, the Issues Paper states that the purpose of the review is to investigate whether the enforcement regime is working effectively or there are matters requiring attention:
The Australian Government is undertaking this review to:
• understand current and emerging enforcement priorities and challenges
• gather views from all parts of the copyright system – including owners, users, institutions and service providers – on whether Australia’s copyright enforcement regime remains relevant, effective and proportionate, and
• seek feedback on whether there is any need to supplement or strengthen existing enforcement mechanisms, and if so, how this could be done without imposing unreasonable administrative or economic burdens.
It appears that the background to the review is the increasing prevalence of online copyright distribution and consumption. Thus, the Issue Paper refers to the findings of a 2021 Consumer Survey on Online Copyright Infringement which revealed that 71% of survey respondents had “consumed” copyright material online in the 3 months to April 2021.
Further, the Issues Paper refers to industry data company, MUSO’s statistics for access to online piracy sites from 2017 to 2021 which appear to disclose “no strong upward or downward trend in copyright infringement overall” but, while declines in piracy of TV, films and music since 2017 have been observed, there have been increases in pirating of publishing materials.
The Issues Paper also reports that there is still a significant amount of IP-infringing material in the form of counterfeit goods – defined as goods infringing trade marks or copyright – citing the seizure by Customs of 145,000 counterfeit goods worth more than AUD 66 million in the last 12 months.
Against this background, the Issues Paper asks 3 questions directed to identifying the nature and scale of copyright infringement challenges in Australia:
- What challenges have you been facing in relation to copyright infringement in recent years? Are you seeing any changes or trends (including any forms or methods of infringement that are emerging or particularly concerning, or conversely, are becoming less prevalent or concerning)?
- Can you provide any data on the scale of current copyright infringement, or the estimated economic impact of such copyright infringement on you, your organisation or your industry more broadly?
- Are there any particular drivers of copyright infringement that you see as noteworthy or significant? Have these drivers changed in recent years?
Next, the Issues Paper asks 4 questions directed to ascertaining the extent to which people are using “industry-driven mechanisms”, the costs and weaknesses of such mechanisms and the scope for developing such mechanisms. Such mechanisms include “cease and desist letters” and tools like YouTube’s content ID and Facebook’s Rights Manager schemes.
Turning to “statute-based mechanisms”, the Issues Paper reports that the website blocking scheme introduced in 2015 has resulted in more than 30 cases with more than 1600 sites blocked and some 330 extensions of the “whack-a-mole” variety.
According to the 2021 Online Copyright Infringement Survey, 11% of respondents had encountered blocked websites in the previous 3 months. Of those, 59% gave up trying to access the material and 18% sought lawful access instead. On the other hand, “almost 1 in 5” had used alternative tools to navigate around the block.
Accordingly, the Issues Paper asks:
8 How effective and efficient is the current website blocking scheme as a way of combating copyright infringement and steering online consumers towards legitimate sources of content? For example, is the application process working well for parties, and are injunctions operating well, once granted?
9 Could the way the website blocking scheme operates be improved in any way (for example to address the use of new and emerging technologies to navigate around or through website blocks), including through changes to how the current scheme is practically implemented, or potential amendments to legislation?
(a) What impact would any such changes have on you or your organisation?
(b) Are there any potential broader or unintended consequences (for example, on other aspects of internet traffic management) that should be taken into account when considering changes that may be suggested through this consultation process?
The Issues Paper notes that the “safe harbour scheme”, which introduced a notice and take down scheme modelled on the DMCA, applies only to “carriage service providers” and key cultural institutions such as libraries, archives and organisations assisting people with a disability but does not extend generally to digital platforms.
The Issues Paper then asks:
10 How effectively and efficiently are the authorisation liability provisions and/or safe harbour scheme (and associated notice and take-down process) currently operating as mechanisms for addressing copyright infringement? For example:
(a) How clear are the circumstances in which a party may be considered to have authorised another person’s copyright infringement, given the courts’ interpretation of the authorisation liability to date?
(b) How effective and efficient is the safe harbour scheme (and associated statutory notice and take-down process) in striking the right balance between combatting copyright infringement and protecting the legitimate interests of service providers?
11 Are there ways in which these provisions could be amended to improve their effectiveness or efficiency?
(a) How would such changes affect you or your sector?
(b) Are there any potential broader or unintended consequences that should be taken into account when considering changes that may be suggested through this consultation process?
In its last section, the Issues Paper reports than 150 copyright matters “were brought before the courts” between 2019 and 2021. Of these 60% were brought in the Federal Court and 40% in the court formerly known as the Federal Circuit Court. The Issues Paper also refers to what it describes as the Federal Court’s “expedited claims process” and developments overseas such as the Copyright Claims Board in the United States for disputes up to USD 30,000 and the Intellectual Property Enterprise Court in the UK for claims up to GBP 10,000.
This leads to three final questions:
12 What factors influence your decisions on what action(s), if any, to take through the legal system and/or law enforcement in relation to suspected or alleged copyright infringement?
(a) For example, have you found mechanisms such as mediation, alternative dispute resolution and other non-court remedies to be preferable as ways to resolve disputes?
13 Are the various avenues available through the legal system and law enforcement to address copyright infringement suitable and effective? For example:
(a) Have you sought to engage with the courts or law enforcement in relation to suspected or alleged copyright infringements? If so, please provide (if possible) any data or examples in relation to your experiences.
(c) Are the current civil and criminal remedies under the Copyright Act appropriate?
(d) What barriers (if any) do you face in engaging with the legal system? Could any models introduced in other international jurisdictions to streamline consideration of copyright matters be potentially relevant in an Australian context?
(e) Were you previously aware of the ABF’s Notice of Objection border enforcement application process?
14 Are there any ways in which the current system could be improved? How would such changes affect you or your sector?
In a very welcome move, we have been granted an extended period to make our submissions: they should be submitted by 7 March 2023.
- No. I did not inadvertantly miss out (b). ?