The British Prime Minister, David Cameron, has announced a review of the country’s intellectual property law – focusing on copyright – with review recommendations due in April 2011.

In making the announcement the PM pointed to the ‘fair use’ copyright provisions in the United States as a possible model for reform: “Over there, they have what are called ‘fair use’ provisions, which some people believe gives companies more breathing space to create new products and services.

“So I can announce today that we are reviewing our IP laws, to see if we can make them fit for the Internet age. I want to encourage the sort of creative innovation that exists in America.”[1]

Some Internet groups have welcomed the review, saying it provides an opportunity to redress the balance between copyright owner and user interests set by the Digital Economy Act of 2010 (which underpins the introduction of a system of ‘graduated response’ by ISPs, to prevent online copyright infringement).

Other commentators have accused the Government of being too much in the thrall of major IT corporations such as Google and Facebook. In a feature article in The Guardian[2], commentator Charles Author said, “Sometimes there’s a temptation to think that because a big, successful company tells you something is wrong, that it really must be. So when Google tells [David Cameron] it doesn’t like our laws on copyright, he believes Google’s right and the law is wrong…

“Well I have some news for Cameron. The ‘fair use’ provisions in the US are very similar to ‘fair dealing’ ones in the UK, and the US ones don’t allow for what Google does, either. Nor did they allow for Google’s book-scanning project, which created a massive copyright row.”

The review will examine a range of access questions in relation to copyright, including what were described in the announcement as “the high costs” associated with obtaining permission to use copyright works.

The UK Publishers Association said it would work closely with the UK Intellectual Property Office during the review, “to ensure rights holders’ interests are not regarded as an obstacle to creating internet-based business models, as some believe, but rather as the foundation of the UK’s world-beating creative, cultural and educational publishing industries”.[3]

[1] BBC News: http://www.bbc.co.uk/news/uk-politics-11695416

[2] guardian.co.uk: http://www.guardian.co.uk/commentisfree/2010/nov/06/google-david-cameron-copyright

[3] BBC News: http://www.bbc.co.uk/news/uk-politics-11695416

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A New Zealand parliamentary committee has recommended that the country’s Copyright Amendment Bill be revised so that repeat online infringers cannot have their Internet accounts suspended (without Ministerial intervention).

Bringing New Zealand a step closer to the introduction of a so-called ‘graduated response’ policy to combat online infringement of copyright works, the New Zealand Commerce Select Committee has recommended that infringers will be sent warning notices at first instance. If infringing behaviour continues after a number of warnings, then the user will receive a notice to appear before the Copyright Tribunal, which has the power to award fines of up to $15,000.

The parliamentary committee has also proposed a review after two years to assess how successfully the Copyright Tribunal approach works and whether it will be necessary to introduce the penalty of Internet account suspension.

The recommendations also state that neither party should be allowed representation at Copyright Tribunal hearings (unless it can be demonstrated that a person will be unfairly prejudiced by this) and that infringement notices sent by rights holders should be deemed to be evidence of an infringement (unless a person accused has valid reasons to rebut this).

New Zealand first introduced graduated response provisions as part of amendments to its Copyright Act in 2009. Whilst receiving support from rights holder groups, protests from the internet industry and other groups led the Government to submit an amended Bill in February 2010. Following the latest recommendations of the Commerce Select Committee, the new Bill will again be put before Parliament for consideration.

The full report and full text of the Bill are available from: http://www.parliament.nz/en-NZ/PB/SC/Documents/Reports/8/3/6/49DBSCH_SCR4901_1-Copyright-Infringing-File-Sharing-Amendment-Bill.htm

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The federal Attorney-General, Robert McClelland, is in favour of a review of copyright by the Australian Law Reform Commission (ALRC), while the Greens have included copyright reform as a key element in their arts policy.

In late September the Australian Financial Review quoted the Attorney-General as saying that Australia would benefit from an ALRC review of copyright legislation[1]: “It is very complex. There are obviously competing interests between consumers, service providers and networks…I think the best way to approach it is with genuine expert advice.”

The Attorney-General’s office has since confirmed his interest in a review by the ALRC, adding that cross-portfolio consultation and agreement on terms of reference would be required before the Government announced such a review.

The ALRC makes recommendations to government so that government can make informed decisions about law reform. While its recommendations do not automatically become law, over 85 per cent of its reports have been either substantially or partially implemented[2].

From the copyright owners’ side, ISP responsibility for online copyright infringement [see this month’s feature article] is one of the issues under discussion with the Government and would most likely be a focus of the review. On the copyright users’ side, there is a range of questions about the adequacy of the exceptions in the Copyright Act.

The interest in copyright reform is also coming from another direction. Under the heading “Cleaning Up Copyright”, the arts policy released by the Greens just prior to the recent election stated[3]: “Our copyright system is struggling to keep pace with the times. A system that is meant to be about nurturing creativity by rewarding it is at risk of stifling such creativity in complexity. At the same time we need to recognise that copyright protects the intellectual property of an artist and provides an important income stream. We need a copyright structure which rewards creators while respecting fair use and avoiding administrative complexities.

“There may be no need for wholesale change but it will certainly require political engagement for any kind of reform to take place.”

The Greens, whose counterparts in Europe also have copyright on their agenda, have committed to hosting a series of round-table discussions with a cross-section of representatives from the creative industries to discuss the future of copyright in Australia. The first of these is scheduled to take place before the end of 2010.

[1] Australian Financial Review, James Eyres, 24/9/10, p. 18.

[2] http://www.alrc.gov.au/about

[3] Australian Greens Policy Initiative, August 2010; authorised by Senator Bob Brown Parliament House Canberra ACT.

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A recent study of professional artists in Australia reports that they are increasingly aware of the value of copyright and are also more likely to be a member of a copyright collecting society than they were in 2002, when a similar study was undertaken.

Do You Really Expect To Get Paid[1] is an economic study of professional artists undertaken by David Throsby and Anita Zednik for the Australia Council. It reports that one-third of artists are now members of one or more of Australia’s collecting societies (e.g. APRA-AMCOS, CAL, Screenrights, Viscopy) – up form one-quarter in 2002. Composers show the most likelihood to join, with almost 90 per cent belonging to a collecting society.

“Awareness of the importance of intellectual property as a means of providing remuneration to creators and of allowing consumers orderly access to creative work has grown in recent years,” the report states.

Fifty-one per cent of all artists believe that the current provisions for copyright protection are adequate, or very effective – up from 42 per cent in 2002[2]. Copyright infringement is an issue on the radar for many. One-quarter of all artists have experienced infringements of copyright or moral rights, in particular, visual artists and craft practitioners.

To download a copy of the full report, go to the Australia Council’s website at: http://www.australiacouncil.gov.au/research/artists/reports_and_publications/artistcareers

[1] Do You Really Expect To Get Paid?, David Throsby & Anita Zednik, published by the Australia Council, August 2010. P. 10.

[2] Ibid, P. 61.

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In response to recommendations of the 2008 Gershon ICT Review, the Government has revised its policy on ownership of the intellectual property in software supplied by contractors.

The Government’s revised Statement of IP Principles[1] instructs that, when an agency negotiates an ICT procurement contract, there will be a default position in favour of the ICT supplier owning the IP it created under the contract. The new principle includes a list of exceptions in the public interest and is contingent on the supplier licensing the Commonwealth to use the relevant IP.

The aim of the new policy is to:

- encourage ICT suppliers, particularly small and medium enterprises, to contract with Government agencies

- encourage commercialisation of IP by the private sector

- foster innovation

In order to assist the process the Attorney-General’s Department has developed model standard contract clauses, which reflect the default position and the licence back to the Commonwealth. Agencies subject to the FMA Act are expected to comply with the new principle by 1 October 2010.

[1] Click here to see the AG Statement of IP Principles for Australian Government Agencies

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Musician and United Nations Messenger for Peace, Stevie Wonder, attracted international media attention in Geneva in September when he urged member states of the World Intellectual Property Organisation (WIPO) to work towards a consensus on better access for the visually impaired to copyright materials.

Wonder addressed the opening of WIPO’s 2010 annual meeting of member states with the following call to action: “While I know that it is critical not to act to the detriment of the authors who labour to create the great works that enlighten and nourish our minds, hearts and souls, we must develop a protocol that allows the easy import and export of copyright materials so that people with print disabilities can join the mainstream of the literate world.”

It is estimated that even in the wealthiest countries (including Australia), less than five per cent of published books are available in formats accessible to the reading disabled. Digital technologies are providing the means to improve access at a lower cost, however, reaching an international consensus on how this should be achieved is proving elusive. The security of digital files as they travel across national borders is at the heart of copyright owners’ concerns.

The United States and the European Union have each put forward proposals requiring member states to make provision for the import and export of accessible digital formats through ‘trusted intermediaries’ only. The term ‘trusted intermediaries’ is defined differently by the parties but in essence refers to governmental or non-profit organisations which control the creation of accessible formats – authorised under exceptions in national copyright law – and then ensure that they are distributed only to bona fide persons with a print disability.

The requirement for control by trusted intermediaries is absent from a treaty proposal by the World Blind Union (WBU), which has been put forward at WIPO by Brazil, Ecuador and Paraguay.

Another proposal, from the African Group, addresses the issue through a much broader draft WIPO treaty, calling for a wide range of exceptions and limitations encompassing people with a disability, educational and research institutions, libraries and archive centres.

With the very significant disparities between these proposals in mind, UN ambassador Wonder challenged WIPO delegates to strike an agreement on improved access within a year. “There are many proposals on the table that will create a safe clearing house for the exchange and translation of books, please work towards a consensus,” he said.

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