ALRC’s Copyright and Digital Economy Issues Paper

The ALRC has published an Issues Paper for its inquiry into Copyright and the Digital Economy.

In an attempt to provide some structure to the anticipated submissions, the Issues Paper propounds some 55 questions over a range of topics including:

  • should (maybe that should include “can”) Australia adopt a “fair use” exception (questions 52 – 53) – an earlier assessment by the CLRC (pdf – see p.7 for the recommendations);
  • is there a need for greater freedom for “transformative uses” such as ‘sampling’, ‘remixes’, and ‘mashups’ (questions 14 – 18)
  • to what extent should copying for private and domestic use be permitted more freely, including should Optus be able to provide its Optus TV Now service (questions 7 – 13);
  • orphan works (questions 23 & 24);
  • library and archive exceptions (questions 19 – 22);
  • data and text mining (questions 25 – 27);
  • educational institutions (questions 28 – 31);
  • Crown use (questions 32 – 34);
  • retransmission of free-to-air broadcasts (questions 35 – 39);
  • do the statutory licensing schemes work efficiently in the digital environment and are new licences needed (questions 40 – 44);
  • should there be any other free use exceptions and should any existing exceptions be done away with (questions 48 – 51);
  • to what extent should people be able to “contract out” of copyright exceptions (questions 54-55) – see what the CLRC thought (pdf).

The Issues Paper is available on the web, as a pdf, an ePub and also in rtf components. (So far as I can see, it does not appear to be available in “dead tree” form.)

Submissions are sought by 16 November 2012. The ALRC itself is required to report by November 2013.

If you are looking for an overview of what is already in place, the Australian Copyright Council’s take is here (pdf).

Optus TV Now (no more)

The Full Court (Finn, Emmett and Bennett JJ) has unanimously allowed the appeal from Rares J’s finding that Optus TV Now did not infringe the copyright held by the AFL, the NRL and Telstra in broadcasts (or films) of the footy.

Based on the summary, the Full Court has found that Optus either made the copies of the broadcast and films or Optus and the subscriber did so jointly.

As Optus was the (or a) maker, it could not rely on the “home taping” defence provided s 111 as the copy was hardly for “private and domestic use”.

This is, of course, the opposite result to that reached by the Second Circuit in the US in the Cartoon Network case in different legislative setting.

The second point would seem to follow necessarily from the first, but the first could render the protection of s 22(6) largely nugatory to those who carry transmissions of infringing material across their networks. The reasoning on this point will need closer consideration. Of course, Optus was storing the copy longer than may be the case of an ISP whose network is used to download some infringing material. Wonder what this provision means?

National Rugby League Investments Pty Limited v Singtel Optus Pty Ltd [2012] FCAFC 59

Lid dip Australian Copyright Council