2012 has been a very busy year in Copyright. So before we take a well earned Summer break, lets review some of this year’s developments.

Cases

There have been a number of landmark copyright decisions this year. Notable has been the Optus TV Now litigation. Justice Rares of the Federal Court handed down his decision in February, holding that Optus was able to rely on the time shifting exception in s 111 of the Copyright Act to operate its TVNow service. See our news alert here.

Leave to appeal was immediately granted and in April the Full Federal Court overturned this decision. See our news alert here. Optus sought leave to appeal to the High Court, but this was refused in September. The speed with which the litigation was resolved is striking and indicates the significance of the interests at play. While the litigation may be over, the controversy continues in copyright circles.

The role of Internet intermediaries continues to pose difficult issues for copyright law. In April the High Court held that iiNet had no direct means of controlling the activities of its customers and therefore was not liable for authorising the infringements occurring on its network. See our news alert here.

Online infringements continue to pose a huge problem for copyright creators and producers. It is hoped that 2013 will see the content and communications industries arrive at a workable solution for all.

It is also worth mentioning a decision of the Federal Magistrates Court which contributed to our limited case law on moral rights. As reported in February, the case involved an Australian DJ who had remised the song of another artist. At a time when exceptions to copyright are being debated, this case raises some interesting issues. See our news alert here.

And recently, the Full Federal Court provided some more guidance on the level of originality required for copyright protection. Holding that copyright subsisted in a compatibility chart for printer and computer consumables. Tonnex International Pty Ltd v Dynamic Supplies Pty Ltd [2012] FCAFC 162 https://jade.barnet.com.au/Jade.html#article=286327

In this newsletter we also discuss the recent plain packaging decision of the High Court. See our news article here. While not directly relevant to copyright, it raises some important issues about intellectual property rights as property.

There have also been a number of significant decisions in other jurisdictions. In July we reported on a group of decisions of the Supreme Court of Canada in relation to fair dealing. See our news alert here. The reading down by the Court of the fair dealing purposes marks a distinct shift from Australian law on fair dealing.

The doctrine of fair use has continued to be tested in the American courts. Recently, the Authors Guild has appealed the controversial decision of Justice Baer of the US District Court that mass digitisation of books for indexing amounted to transformative use and was therefore fair use. We will be following the case with interest and providing updates to you in 2013.

Policy

While no new copyright legislation has been introduced in 2012, there is certainly a lot going on the policy front.

The much awaited Beijing Treaty was concluded in July and it can be expected that the Government will commence consultations on its implementation in the New Year. See our news alert here.

The Report of the Convergence Review was released in April. See our news alert here. While the report does not focus on copyright issues, it is likely to have significant issues for copyright law and policy. The first package of reforms was announced by the Government last week. http://www.minister.dbcde.gov.au/media/media_releases/2012/193

And in the UK, Richard Hooper released a report on the establishment of a digital copyright exchange. We were lucky enough to have Mr Hooper visit Australia in October and make a presentation to the Copyright Society of Australia. His work certainly provides food for thought. See our news article here.

The Attorney-General’s Department is currently conducting inquiries into extending the legal deposit requirements to digital material and on exceptions to technological protection measures. The Council’s submissions are available below:

• Apr 2012 Submission to AG on Extending legal deposit click here

• Aug 2012 Submission to AG on TPMs click here

• Oct 2012 Submission to AG on TPMs click here

The main focus this year has been on the Australian Law Reform Commission’s inquiry into Copyright and the Digital economy. The inquiry is looking at the adequacy and appropriateness of the exceptions to copyright and existing statutory licences and the digital economy. The ALRC released a lengthy Issues Paper in August and at the time of writing, submissions have just closed. The Copyright Council’s submission is available here. The ALRC is due to report in November 2013.

Business Models

2012 has also been notable for the proliferation of new business models. In this newsletter, we take some time to look at this, see article here.

PwC report

In 2012, the Copyright Council was pleased to commission a new report from PwC looking at the economic contribution of Australia’s Copyright Industries. In case you didn’t realise, copyright industries are a really significant part of the Australian economy.The report is available here.

And for those of you who weren’t at the launch, you can watch a video of the event, including the speech by the Hon Mark Dreyfus QC MP and vox pops with Australian creators. View here.

As I write this, we have just published two new educational books, see our bookstore. We are also getting ready to launch our 2013 National Seminar Program view dates here.

The Copyright Council is always happy to receive feedback so let us know if you have any suggestions.

In the meantime, have a happy, healthy festive season. And go out and enjoy some Australian copyright material!