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2013: A Copyright Odd-yssey
21/01/2013
In recent weeks, a number of commentators have made predictions about Copyright in 2013. Here at the Australian Copyright Council, we thought it useful to do some crystal ball gazing from an Australian perspective.
ALRC Inquiry
It doesn’t take the powers of Madame Zelda to know that the Australian Law Reform Commission’s (ALRC) Inquiry into Copyright and the Digital Economy will be central to the Copyright policy debate in Australia.
The ALRC received 280 submissions [1] in response to its Issues Paper. [2] Pleasingly, many stakeholders made a genuine attempt to grapple with questions posed by the ALRC on evidence about the way in which copyright law is affecting the digital economy and about the adequacy and appropriateness of existing exceptions.
At a high level, the Inquiry is about two different paradigms: copyright licensing and free-use exceptions. This in turn raises fundamental public policy issues about a copyright owner’s ability to control and earn a living from their work and how this should be reconciled with the public interest in access to content.
In 2013 this is likely to be played out around a number of specific issues: flexible exceptions to accommodate new technological uses of copyright material (such as social media, search and mass digitisation), how to deal with copyright material when the creator cannot be located and free use of copyright material for educational purposes.
The ALRC is likely to release a Discussion Paper in the first half of 2013, with a period of consultation prior to delivering its Final Report on 30 November 2013.
Convergence
2013 is also an election year in Australia. This means that the Federal Government is likely to want to deliver on some of its longer-term commitments. For example, the first tranche of the Government’s response to the Convergence Review was announced in November 2012. This related to content on Australian TV, an issue close to those working in the film and TV industries. It is expected that the Government’s response to other issues raised in the Convergence Review will be announced during the first half of 2013. [3]
National Cultural Policy
It is also likely that the Government will release its much-awaited National Cultural Policy in the first half of the year. The National Cultural Policy will set the framework for Government support for arts, culture and creativity for the next decade. It is therefore of key importance to those of us working in creative industries.
TPMs
The Government is also currently working on a number of copyright-specific issues. In 2012 the Attorney-General’s Department sought submissions on whether there should be any additional exceptions to the provisions in the Copyright Act which prohibit the cracking of technological protection measures (TPMs). TPMs are technological locks which can be applied to copyright material to prevent unauthorised access. This is distinct from other types of digital rights management, such as geo-blocking, which blocks access to an IP address rather than specific copyright material. It is expected that the outcome of that review will be announced during 2013. [4]
Safe Harbours and Intermediary Liability
In 2011 the Government also sought submissions on amending the definition of Carriage Service Provider so that the Safe Harbour Scheme (which provides immunity from liability for copyright infringement in certain circumstances) applies to those other than Internet Service Providers. For example, social media platforms and search engines.[5] No progress was made on this issue in 2012. The Attorney-General’s Department has indicated that it is considering this issue in light of the High Court’s decision in Roadshow Films Pty Ltd & ors v iiNet Ltd which held that iiNet was not liable for the infringing conduct of its customers.[6]
In parallel with these developments, there have been efforts to achieve a cooperative response to the issue of intermediary liability through the development of an industry code of conduct. Late in 2012 it was reported that iiNet had walked away from discussions between the content and communications industries being brokered by the Attorney-General’s Department.[7] This has caused some stakeholders to call for legislative intervention. It is expected that intermediary liability will continue to be a hot issue in the lead up to the Federal Election later this year.
Cases
2012 was distinctive for the number of landmark copyright decisions delivered by Australian courts. While not about copyright directly, we are eagerly awaiting the High Court’s decision in the Google adwords litigation. This involved an action by the Australian Competition and Consumer Commission against Google for misleading and deceptive conduct. [8] The case is likely to have broader implications for online platforms hosting third party content. It is expected that the decision will be handed down in February, prior to the retirement of Justice Heydon.
International Developments
2013 is also shaping up to be a busy year on the international stage.
WIPO Beijing Treaty on AudioVisual Performances
In June 2012 the WIPO Beijing Treaty on Audiovisual Performances was concluded. The treaty will give screen actors additional rights in their performances. It is expected that ratification of the treaty will be a policy issue in the lead up to the Federal Election.
WIPO Diplomatic Conference for A Treaty to Facilitate Access to Published Works by Persons with Print Disabilities
The World Intellectual Property Organisation is to convene a diplomatic conference with a view to concluding a Treaty to Facilitate Access to Published Works by Persons with Print Disabilities in Marrakech in June 2013. Australia already has well- developed provisions which facilitate access to copyright material by people with a print disability. It is expected that the Australian Government will take an active role in the negotiations.[9]
Anti-Counterfeiting Trade Agreement (ACTA)
In its response to the Joint Standing Committee on Treaties Report on ACTA in November 2012, the Government announced that it had commissioned an independent analysis of the economic and social benefits and costs to Australian business, the not-for-profit sector and the community that would result from the ratification of ACTA.[10] We understand that analysis was due to be completed by the end of 2012. It is therefore likely that the Government will publish the results of that analysis early in 2013 pending a decision about ratification of ACTA.
Trans-Pacific Partnership Agreement (TPP)
The TPP is a trade agreement currently being negotiated by Australia and other regional trading partners such as New Zealand, Malaysia, Vietnam, Singapore and the US. Like most trade agreements, it will include an intellectual property chapter. The deadline for completion of TPP negotiations is October 2013. While the Government has stated that the TPP will not require amendment of Australian copyright law, some stakeholders have expressed concerns about an apparent lack of transparency in negotiations.
In our view such criticisms downplay the reality of Australian democracy. Government officials have engaged in significant public consultation in relation to the TPP, as they do with all treaties. Furthermore, no treaty is ratified in Australia without parliamentary scrutiny.
It might also be observed that such criticisms could be equally levelled at any international agreement outside the United Nations or World Trade Organisation systems.
The public interest in transparency needs to be balanced against other factors. Perhaps it is worth considering what progress could be made in international negotiations without some level of confidentiality?
Conclusion
2013 is looking like it is going to be another busy year in the Copyright world. We look forward to some informed debate on these complex issues.
[1] http://www.alrc.gov.au/inquiries/copyright-and-digital-economy/submissions-received-alrc
[2] http://www.alrc.gov.au/publications/copyright-ip42
[3] http://www.dbcde.gov.au/digital_economy/convergence_review
[5] http://www.ag.gov.au/Consultations/Pages/RevisingtheScopeoftheCopyrightSafeHarbourScheme.aspx
[6] http://www.copyright.org.au/news-and-policy/details/id/2060/
[7] http://blog.iinet.net.au/iinet-withdraws-notice-notice-scheme/
[8] http://www.copyright.org.au/news-and-policy/details/id/2147/
[10] http://www.dfat.gov.au/ip/government-response-to-jscot-report-on-acta.html