BREAKING: SAFE HARBOUR BILL INTRODUCED INTO PARLIAMENT AND 2017 IN REVIEW
5 December 2017
In October we launched the Economic Contribution of Australian Copyright Industries 2002-2016 by PwC. This is the fifth report of its type commissioned by the Australian Copyright Council (ACC). Once again it showed that copyright industries are a significant contributor to the Australian economy. For example, in 2016, copyright industries:
- Employed over 1 million Australians (approximately 1,022,000 people), which constituted 8.6 per cent of the Australian workforce.
- Generated economic value of $122.8 billion, the equivalent of 7.4 % of gross domestic product (GDP).
- Generated just over $6.6 billion in exports, equal to 2.7 % of total exports.
- Copyright industries are the 3rd biggest industry in the Australian economy.
And yet, the significance of our copyright industries is seldom reflected in Australian policy debate.
It is therefore pleasing that in introducing the Copyright Amendment Series Providers Bill 2017, today, the Minister acknowledged the significant contribution of Australian copyright industries. He stated:
“The Government will continue to work with stakeholders on reforms to the safe harbour scheme to ensure it is fit for purpose and reflective of world’s best practice, before looking to apply it to other online service providers.
In so doing, the Government will be mindful of the need to ensure the rights of creators are properly protected. Australia’s copyright framework ensures that creators can receive a fair return for their work. Australia’s copyright industries make a significant contribution to our economic and cultural life, including collectively generating approximately $122.8 billion in economic activity, $6.5 billion in exports and employing more than 1 million Australians.”
Safe Harbour Bill Introduced
The Copyright Amendment Series Providers Bill 2017 will extend the copyright safe harbour to include educational institutions as well as libraries and archives. It does not extend safe harbour to other kinds of service providers such as search engines and social media platforms.
The Bill is likely to be referred to the Senate Legislation Committee. Stay tuned for more detail. In the meantime, the Bill is available here.
Copyright Amendment (Disability Access and other Measures) Act 2017
The CADAM Act implements the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled, as well as making amendments to streamline the educational statutory licences and library exceptions, and to limit the duration of copyright in unpublished material. Most of the amendments commence on 22 December 2017 and we are updating all our materials to reflect those changes so stay tuned for more information. In addition, the Department of Communications and the Arts has published a series of fact sheets on the changes which are available here.Our 2018 seminars (to be launched in January) will cover the changes in detail. In the meantime, if you want to know more, I recorded a webinar on the changes a few weeks ago.
Australian Inclusive Publishing Imitative
The changes to the law are directed at accessibility as a matter of law. The ACC is proud to be part of the Australian Inclusive Publishing Intuitive, which is focused on practical measures to make published material accessible to people with print disabilities. It is worth noting that this initiative is unique in the world. You can read more about the initiative here and listen to my interview about the Marrakesh Treaty with Amanda Vanstone on RN’s Counterpoint program.
Government Response to the Productivity Commission Inquiry into IP Arrangements
The Government has been measured in its response to the Productivity Commission, committing to further consultation on a number of copyright issues, including copyright exceptions, extending the safe harbour scheme and orphan works.
As part of the Government’s response, the Bureau of Communications and Arts research is currently conducting a review of the Collecting Societies Code of Conduct. The ACC is part of the External Reference Group informing the review.
With the introduction of the Copyright Amendment (Service Provider) Bill 2017, the forthcoming report on the Collecting Society’s Code of Conduct and fair use, the stage is set for further robust discussions on copyright policy issues in 2018.
18th Biennial Copyright Law and Practice Symposium
A highlight of 2017 was the 18th Biennial Copyright Law and Practice Symposium. We were honoured to welcome the Hon Judge Pierre N Leval, famous for developing the doctrine of “transformative use” in US fair use jurisprudence, as our key note speaker. His Honour gave a very eloquent account of the development of fair use in the US. I had the privilege of asking Judge Leval some questions at the end of his keynote. Persuasive as he was, I was still left with some doubts. At its core, his Honour’s concept of “transformative use” is based on economic concepts of substitution. Whilst that might be a reasonable way of reconciling the objectives of copyright in providing incentives to creators while facilitating the dissemination of content, one cannot simply look at copyright through an economic lens.
As Throsby states in Making Art Work, recently published by the Australia Council for the Arts,
That is, copyright is as much about artistic control as it is about making a living. If you needed convincing, you need only look to Twitter, where just last week, Jimmy Barnes complained that the Government using his work to promote certain policies. Further evidence of artists' desire for greater control over their work is borne out in surveys conducted by both NAVA and the Arts Law Centre of Australia. Data collected in each of these questionnaires suggests that artists want permission to be sought before their work is used.
As far as I am concerned 'transformative use' fails to account for this part of the fairness equation.
The year began with controversy over the livestreaming of a boxing match on social media. However, as Australians are not litigious by nature, it has been a relatively quiet year when it comes to cases. Looking at the cases we’ve reported on this year, they have covered everything from site blocking, the ongoing matter between PPCA and Foxtel in the Copyright Tribunal, architectural plans to photos of chamomile flowers.
In November, Copyright Agency|Viscopy filed an application in the Copyright Tribunal for the determination of equitable remuneration payable by NSW under the government statutory licence. Expect to hear more about that in 2018.
The ACC is thrilled to welcome two new members to its ranks, taking its total membership to 27.
Australian Institute of Architects
Australian Screen Association
What’s in Store for 2018
2018 will mark the 50th anniversary of both the ACC and the Copyright Act 1968. Stay tuned for a year of celebrations.
To kick things off, we have launched our 2018 book subscription and will be launching our national seminar series in January, so stay tuned.
Finally, Sarah Hilyard, the ACC’s indefatigable office manager, and I are finishing our time at the ACC at the end of the year. It has been an honour and privilege working with you all. Grant McAvaney will take over the reins in the New Year. I wish him and the Council every success for the future.
With best wishes for a happy and safe festive season.
Fiona and the ACC Team