2012 has seen a rapid evolution in the way that copyright material is being made available in Australia.

Subscription Services

Subscription-based services are a broad category of service allowing users to access a whole catalogue of content that they can watch or listen to on-demand.

Unlike the traditional model, in which consumers would obtain music, film and other types of content by buying specific movies or films, subscription-based services let customers watch or listen to anything they want to at any time - without having to specifically purchase it.

Music

Several companies have begun offering music-orientated subscription services in the local market; these include MOG (launched June 2012), Spotify (launched May 2012), JBHiFi Now (launched December 2011), Rdio (launched February 2012), and Deezer (launched August 2012).

Most operate in a similar way: customers pay a monthly subscription fee and are given streaming access to a catalogue of licensed music online. In many cases, the service allows paid subscribers to also download music to mobile devices like tablets and phones for offline listening (useful for when there is no internet connection or when a user is on the move).

A user can listen to any music contained within the service’s catalogue at any time with the added benefit that they do not need to back up content as this is all stored remotely by the subscription music platform and delivered on demand. Users can usually access their music and synchronise playlists on desktops, laptops as well as mobile devices and tablets.

Some services offer a free account with limited functionality but most are based on a range of different monthly or yearly fees that determine what features are available to the user.

Such services provide a legal and licensed alternative to the unauthorised file sharing that takes place online, but also with the added flexibility of available music and use on multiple devices that unauthorised file sharing has previously facilitated. However, in a general sense, the remuneration to the songwriter from use of their music in a subscription service is usually less than the remuneration from a traditional sale of that single or album.

Film & TV

BBC iPlayer

BBC launched its iPlayer service in Australia in late September 2011. It runs on iPad, iPhone and iPod and Android devices and gives users on-demand access to a wide range of BBC programming ranging from older material to newer material.

Free users may watch material from a changing collection of free programming on a streaming-only basis. Paid users pay a monthly or yearly subscription that enables on-demand access to the complete iPlayer catalogue and may either stream programs directly to their device or download programs to their device (for example, to watch when an internet connection is not available).

As the content is available on-demand, a user can, at any time of their choosing, re-watch material or re-download material for viewing.

An article[1] published in The Age on February 27th, 2012 reported that Australia had the highest adoption rates for the iPlayer service, accounting for 20% of its global revenue.

Quickflix

Quickflix runs a subscription service that allows users paying a monthly subscription fee to access an on-demand catalogue of licensed movies and TV shows that can be streamed to the user at any time they chose. The streaming service does have a more limited catalogue than Quickflix’s DVD rental service at present, but this is expected to increase over time.

Quickflix can be accessed via a web interface on a desktop or laptop, on mobile devices, tablets, Xbox and Playstation 3 gaming consoles and some smart TVs from Sony, Panasonic and Samsung.

Similarly to the music services, the film and TV-based subscription services offer licensed material in a flexible way that takes away the removes the need to buy individual items.

Licensed catch-up TV services

The nature of broadcast TV means that there will be times when a viewer missed a show or misses one part of a multipart series. Short of buying the series on DVD, there were not many legal or licensed options to view missed programming unless it was directly purchased on a DVD, purchased through a digital vendor like iTunes or recorded at the time of broadcast by the viewer themselves.

Several networks began to implement “catch up” TV services, which each operate differently, but in most cases feature programs that have already been broadcast for a period of time (often two weeks) upon which they are taken down and replaced with more recently broadcast episodes.

ABC iView & other free to air networks

ABC’s iView is a video streaming service that allows users to watch programming that has been broadcast on the range of ABC TV channels (and in some cases before programs are broadcast on the ABC). Such a service allows users to view any programming that they may have missed and replaces the need for the user to have to make their own recording of that material at the time it is initially broadcast.

iView was initially launched in 2008 for access via the web – which left it largely confined to desktops and laptops. 2010-2012 has seen the broadening of the iView service across to other platforms that include Apple’s iPhone, iPad and iPod devices with an Android app also expected.

The ABC has also integrated iView apps into internet-connected TVs from Samsung, Sony and Panasonic (which allow iView to be watched directly from the TV with no other devices needed) and also integrated iView apps into the Xbox 360 and Playstation 3 console platforms.

The end result is that users can view the material on a variety of platforms and devices without needing to do any of their own format shifting or conversion because the ABC has enabled licensed access to the content across multiple platforms and devices. Such services also solve the issue of missing a program - the viewer often has a two-week window in which to watch the content online after its been broadcast.

Other free to air networks are implementing similar “catch up” services – for example SBS On Demand may be watched on its website as well as on the iPhone and iPad and the Seven Network’s Plus7 catch up service is available via its website as well as viewable on Playstation 3 and as an integrated TV app. There have been reports that the commercial networks will be extending beyond their catch-up TV websites into streaming content to apps on devices [2].

Foxtel

Foxtel operates a catch up TV service that allows users to select from a list of programs that have already been broadcast and download these to their Foxtel set top box for later viewing.

Foxtel also launched its Foxtel GO app for iPads in November 2012. The app allows Foxtel subscribers to receive a live stream of selected channels or select from a list of catch up programs to watch on-demand. The content can only be accessed via iPads at present, but the indication is that devices and features will be broadened in the future.

Licensed Content for Social Media

Many users of social media or people running a personal blog like to share what they may be listening to or watching with their friends or followers for various reasons.

This year has seen several services launch in Australia that offer licensed commercial content that users are able to embed or share on their social media profiles, blogs and websites.

Vevo

Vevo is jointly operated by several music companies and hosts music videos from a range of acts signed to Sony, Universal and EMI for free viewing online. Vevo launched in Australia in April 2012.

Vevo has its own website which allows sharing through Facebook or Twitter. Vevo also has a YouTube channel that enables users to watch music videos through Youtube as well as link to or embed the videos on their own pages.

Videos can be watched for free and in high quality HD video via the aforementioned social media platforms, but also through apps for iPhones, iPads, Android, Xbox and Windows Phone platforms.

In this case, music companies are making legal high-quality free versions of their video clips for popular artists available and allowing linking to and sharing of that content via several social media platforms.

Movieclips.com

Movieclips.com is a website that hosts thousands of licensed clips from movies from all the major film studios. Access is free and movie clips are tagged by mood, character, actor, director, year made and other elements that enable very specific search and discovery of film clips.

Any clips on the site can shared via links with other users on social networking sites like Twitter, Facebook, Gmail, Tumblr, Youtube or screenshots pinned to Pinterest or embedded by users into their own sites or PowerPoint presentations for personal, non-commercial uses.

Users can trim clips to get the exact part of the scene they want and create virtual greeting cards featuring scenes from movies.

Clips may be watched in standard or high definition and links to purchase the full movie are provided with the clip. Movieclips.com has its own YouTube channel facilitating viewing and sharing of clips through that platform.

The site also contains a number of “licensable” clips that can be licensed online via the site by users that want to use clips in a commercial setting. If a clip is licensable, then a ‘”licence clip” button becomes visible. The button leads to a page with several options that determine the licence fees for permission.

A similar site called Anyclip.com also operates an similar service that enables viewing of clips and sharing on social media.

Personal use of Vevo and Movieclips.com is free and the existence of high quality licensed sources of the content means users can rely on such a service as their source of content and avoid the legal issues raised by sourcing unauthorised content from online or making their own copies of the video clips and posting these online.

Digital Newspapers & Magazines

Devices in form factors such as 9 inch and 7 inch tablets are particularly conducive to reading digital magazines and newspapers. This provides an interesting new platform for publishers to deliver content on.

Until the arrival of such devices, content was usually in print form or on a traditional website – a different and less natural reading experience than printed magazines and newspapers.

Tablets and smart phone devices allow digital editions of magazines and newspapers to be read in a way more familiar to their print-based incarnations and offer an interesting hybrid for the user, with the benefits of digital but with the portability and form factor of print.

Several publishers now offer digital versions of their magazines specifically formatted for tablets or phones. Usually, these may be directly purchased by the consumer on an issue-by-issue basis or, automatically delivered to the customer as part of a monthly or annual subscription. New editions are available for download as they are released and in most cases, subscribers can re-download any magazine they were eligible to access during their subscription period. Digital newspaper apps will often automatically update the content daily.

One example in the magazine sector is the New Yorker magazine app, which allows users to either buy digital issues on a pay-per issue basis or purchase a monthly or yearly subscription that enables access to every issue in a given time period. Purchased magazines are downloaded to the device(s) and users are able to re-download any issues they have previously purchased but since removed from their device. The New Yorker’s publisher Conde Nast also has similar apps for its other magazines like Wired, Vogue and Vanity Fair.

Another example is Australian magazine publisher ACP Magazines, which in October 2012, launched digital editions of its magazines (such as the Australian Women’s Weekly, Rolling Stone, Harper’s Bazaar, Australian Personal Computer and Australian Geographic) on the Google Play platform.

Google Play is the content delivery hub for Android-based tablets and smart phones (akin to Apple’s iTunes Store) and features a magazine section whereby users can subscribe to and read digital editions of magazines across their devices. Magazine purchases are synchronise across the devices associated with a user’s account.

Additionally, print subscribers to well known magazines and newspapers like the Economist, Time, The Monthly, Sydney Morning Herald, the Australian are being given access to the digital editions of those magazines such as the website or specially formatted tablet version.

Where to next?

Many new services allow the user to access content on a variety of devices or platforms at any time or to access content in broad ways that weren’t previously possible as act as a disincentive to obtaining unauthorised copies material online.

Given than many of these models are still in their initial stages, it is too early to make any conclusions or broad statements about their success. More time is needed to survey the longer-term impacts, consumer uptake and financial viability of these models for creators.

Nonetheless, given faster internet speeds, increasing ubiquity of smart devices and increasing consumer willingness to buy digital content, the foundations are in place for future innovations to be set in motion to reach the goal of consumers being able to access content in the way they wish, but in a way that is viable for the creators of that content.

[1] http://www.theage.com.au/digital-life/computers/blogs/gadgets-on-the-go/aussies-flock-to-bbc-iplayer-20120225-1tv1b.html

[2] http://www.theaustralian.com.au/media/australians-love-to-watch-tv-online-and-pay-for-it-too/story-e6frg996-1226492991548

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2012 has seen the European Union, UK and the US all making attempts to address the issue of how to deal with “orphan works”.

What are orphan works?

“Orphan works” is a term applied to material that does not have an identifiable copyright owner. Orphan works are in something of a limbo state as there is uncertainty surrounding their use (given that it’s not possible to obtain permission to use them and that working out whether copyright has expired often requires knowledge of when the creator died).

The question of what to do with such works is relevant for a range of institutions such as libraries, museums, galleries and others that have large collections of material. Orphan works are also relevant for any individual wanting to use an orphan work in his or her project.

Interested parties should read our “Orphan Works” information sheet for an outline of key issues. This is available at http://copyright.org.au/find-an-answer/browse-by-a-z/.

The European Directive

The European Council adopted its directive on certain permitted uses of orphan works [1] in October 2012. The directive was published in the Official Journal of the European Union on October 27, 2012.

Directives are effectively a statement of the end-goals that should be achieved in a given area. Each member state must work toward implementing the same end-goal, but it is up to each member state to amend and structure its domestic law to achieve the broader goals set out by a particular directive. EU member states have until 29 October 2014 to implement the directive into their domestic laws.

The directive primarily applies to cultural institutions such as libraries, educational institutions, archives, galleries and public broadcasters. Organisations have to identify potential orphan works and then conduct a “diligent search” to ascertain the copyright owner. When conducting the search, appropriate sources must be consulted (sources vary depending on the type of material being assessed and a list of relevant sources is included in the directive’s annex).

If after conducting a diligent search, no owner is identified, then the material is considered an “orphan work”. Once categorised as an orphan work, eligible institutions may then use the orphan work for purposes that “achieve aims related to their public interest mission” [2] without needing permission. Article 6(2) states that such uses include “in particular the preservation of, the restoration of, and the provision of cultural and educational access to, works and phonograms contained in their collection”.

Once a work is declared an orphan work in one member state, it is considered an orphan work in all other member states. However, the directive states that provisions should be put in place for rightsholders to end the orphan works status on material they later discover has been granted that status [3] and that some mechanism for fair compensation to rights holders be implemented [4].

The full text of the directive can be accessed at http://ec.europa.eu/internal_market/copyright/orphan_works/index_en.htm

UK Orphan Works Reform

The UK government has a proposed orphan works reform as part of its Enterprise and Regulatory Reform Bill (HC Bill 7). The orphan works components of the bill are primarily in provision 68(3) and if passed, will set in place the foundation for the scheme.

Under the scheme, authorised bodies will be able to grant licenses to people or companies wishing to use orphan works – in effect, stepping into the place of the copyright owner as licensor. An up-front payment would be taken and the money set aside for copyright owners that reveal themselves down the track.

The bill states that “for a work to qualify as an orphan work, it is a requirement that the owner of copyright in it has not been found after a diligent search made in accordance with the regulations” [5]. Material that has satisfied the “orphan works” requirement may be then be licensed for both non-commercial and commercial uses. This is in contrast to the European Directive, which does not permit licensing of orphan works for commercial purposes.

The UK’s proposed scheme also contains an “extended collective licensing” component that will allow a collecting society authorised for a certain class of materials “to grant copyright licences in respect of works in which copyright is not owned by the body or a person on whose behalf the body acts” [6]. The means that an approved collecting society will be able to provide a licence to use any orphaned material for commercial and non-commercial purposes – whether or not the creator is a actually member of that society.

Whilst there are expected to be “opt-out” provisions for creators that do not want to have their material licensed by the collecting society, the proposed UK scheme reverses usual copyright licensing practice (in which creators opt-in to licence or have their material licensed by another party).

This, particularly in light of the commercial uses allowed, has proven unpopular with a number of creator groups, particularly photographers (photographs are particularly susceptible to being “orphaned” online). US photographer groups have argued [7] that the scheme will allow a vast amount of non-UK material to be used without permission or compensation to the rightsholders, which will affect the value of the material as well as being uncertainty into licensing use of foreign works in the UK.

The bill has passed through the House of Commons, is currently before the House of Lords after receiving its second reading on November 14 and is next scheduled for a House of Lords committee hearing on December 3. We will have to wait and see whether arguments from stakeholders both for and against the scheme will lead to further amendments.

Read the full text of the bill at: http://www.publications.parliament.uk/pa/bills/lbill/2012-2013/0045/lbill_2012-20130045_en_8.htm#pt6-pb1-l1g65

The US Issues Paper

October saw the US Copyright Office announce an inquiry into orphan works, stating that it “has long shared the concern with many in the copyright community, that the uncertainty surrounding the ownership status of orphan works does not serve the objectives of the copyright system”[[8] The Notice of Inquiry was published on October 22 and submissions are being accepted until January 4, 2013.

The Copyright Office expressed an interest in whether relevant changes in the legal and business environment may foster a resolution of the issues and whether the most appropriate form of addressing the issue would be legislative, regulatory or voluntary.

The Notice of Inquiry frames the issues in two broad areas: the first being use of orphan works on an occasional, isolated or ad-hoc basis (for example, this may include a publisher, individual or filmmaker wanting to use orphan works material).

The second broad issue is how to address orphan works issues in the context of mass digitisation, projects such as preservation projects in museums or galleries or commercially run projects like the Google Books project.

For further information on the inquiry, as well as a list of US-based orphan works resources see: www.copyright.gov/orphan/

Relevance to Australia

Domestically, orphan works have been the subject of past enquires as well as the current ALRC Enquiry into copyright and the digital economy and several organisations such as SBS [9] and the National Film & Sound Archive [10] (which both hold significant amounts of orphan works material) have released statements about their policies on use of orphan works.

Issues under consideration in the ALRC review include (i) whether the current legal treatment of orphan works affects the use, access to and dissemination of copyright works in Australia and (ii) whether domestic copyright law should be amended to create a new exception or collective licensing scheme for use of orphan works.

Australian stakeholders will be monitoring international attempts at developing a solution to orphan works issues in light of the insight such implementations may bring to orphan works–related reform in Australia, if a future need arises.

[1] Directive 2012/28/EU

[2] Article 1(1)

[3] Article 5

[4] Article 6(5)

[5] Proposed provision 166A(3) in Enterprise and Regulatory Reform Bill (HC Bill 7)

[6] Proposed provision 166B(1) in Enterprise and Regulatory Reform Bill (HC Bill 7)

[7] See joint letter of 8/11/2012 to Dr Vince Cable from organisations representing photographers

- http://asmp.org/pdfs/US_UK68ERRB.pdf

[8] http://www.copyright.gov/orphan/

[9] http://www.sbs.com.au/aboutus/corporate/view/id/541/h/SBS-Statement-on-Orphan-Works-1.0-February-2011

[10] http://www.nfsa.gov.au/

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Sharing recorded TV broadcasts on Clickview Exchange

Readers from any educational institution with a Part VA licence (administered by Screenrights) will be happy to know that Clickview Exchange has been classified as a resource centre.

This means that you can share your recorded TV programs on Clickview Exchange with other Part VA-licensed educational institutions.

For a full list of all the resource centres, see http://www.screenrights.org/content-users/australian-services/educational-license/resource-centres

Using digital music from iTunes and other stores in primary & secondary schools

Readers from primary and secondary schools with an APRA|AMCOS/ARIA Schools’ Music Recording and Access Licence, did you know that you can now use music obtained from legitimate online sources (for example, iTunes or Bigpond Music) for your school’s educational purposes?

For more information, see http://www.apra-amcos.com.au/musicconsumers/musicineducation/schools.aspx

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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!

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The issue of how copyright is operating in the digital age is being reviewed not only in Australia, but also at an international level. In July this year, Richard Hooper CBE and Dr Ros Lynch released a report, Copyright Works – Streamlining copyright licensing for the digital age, which discusses options for improving licensing processes in the digital era. Hooper was appointed by the UK Government to lead a review into the feasibility of establishing a cross-sectoral Digital Copyright Exchange following recommendations made by Professor Ian Hargreaves in the 2011 Hargreaves Report [1].

The first phase of the Hooper Review was completed earlier this year and involved investigation into whether copyright licensing is presently fit for the digital age. In the report Rights and Wrongs published in March this year, Hooper concludes that on the whole, it is not [2]. The report states that in comparison with other countries, the UK’s licensing processes fare well. However, it also says that much could be improved. In particular, some of the outstanding issues identified with current licensing processes include:

• Complexity of licensing processes

• Complexity in terms of the organisations that provide licences

• Imbalance between what is available in digital formats, and what is available in physical formats

• Difficulty in obtaining information about who owns what rights in which country

• A lack of common standards in terms of expressing, identifying and communicating rights information across sectors and between nations [3].

The recently released second phase report then poses some suggestions for improvement to the way copyright licensing is carried out. It states that while there have been improvements in this area since the release of the Hargreaves review, there is “no room for complacency. The drive to streamline licensing processes further will be a constant for the creative and internet industries in the years to come” [4].

In particular, the Report emphasises the importance of improving rights data management in order to better facilitate the licensing process [5].

The Report is also supportive of the establishment of a UK-based “Copyright Hub” where copyright owners can choose to register their works if they wish, and where copyright licensees can go (as a first point of call) to obtain licences. It’s proposed that the Hub will link to national and international copyright exchanges, rights registries and other rights related databases so that information is centrally available through one source.

The Report also states that a focus of the Hub will be on facilitating a high volume of low value copyright transactions (as opposed to larger end, high value deals which are negotiated independently). Examples of the sorts of transactions envisaged that the Hub might facilitate include a user posting a video on YouTube, a small start-up wanting to use text and images, or a publisher wanting to use a diagram in a publication [6]. The idea behind facilitating smaller transactions is that many of these situations may not be licensed due to difficulties faced in obtaining licenses for small values. Yet, in theory, if such licenses could easily be obtained, the volume of licensing should amount to a worthwhile return for rights holders.

The Hub will also, amongst other things, be the place to go for copyright education and to assist people with direction on where they can obtain further information if necessary.

In the addition to making improvements to rights data information, and facilitating small cost transactions, the Report also encourages the copyright industries to continue efforts to develop new, streamlined licensing models. The Report discusses the concept of “Repertoire Imbalance” – the idea that if a particular work is not available online, the temptation will be to locate an illegal copy. It suggests that if the imbalance between what is available in physical formats and what is available digitally is rectified, the perception by users that there is a problem in terms of availability (such that copyright infringement can be “justified”) will be counteracted.

The Report notes that going forward, the creative industries have agreed, in principle, to fund an office to continue work on coordinating cross-sector and cross-boarder licensing initiatives for one year at the first instance [7]. It will be interesting to watch this space to see what further developments ensue.

This is not the only project of its kind to suggest a centralised system for copyright licensing and rights information storage. In Australia, for example, Professor Michael Fraser has carried out extensive work into investigating his idea for a National Content Network [8].

The idea behind a centralised system for copyright licensing is in theory very attractive. In particular, if fully operational, centralised licensing hubs could serve to improve the volume of licensing carried out, particularly where no pre-existing licensing mechanism is available in relation to the exercise of the particular rights.

Such systems are also often posited as a solution to orphan works problems. It is the practicality of coordinating the interests of rightsholders both across sectors and across jurisdictions that poses the biggest challenge to such recommendations being implemented.

Read the second phase Report here:

http://www.ipo.gov.uk/dce-report-phase2.pdf

[1] Professor Ian Hargreaves. Digital Opportunity: A review of intellectual property and growth, May 2011. http://www.ipo.gov.uk/ipreview-finalreport.pdf

[2] Richard Hooper CBE. Rights and Wrongs: Is copyright licensing fit for purpose in the digital age?, March 2012. http://www.ipo.gov.uk/dce-report-phase1.pdf

[3] Rights and Wrongs, at 7

[4] Richard Hooper CBE and Dr Ros Lynch. Copyright Works – Streamlining copyright licensing for the digital age, July 2012, at 1.

[5] Copyright Works, at 10

[6] Copyright Works, at 2 and 20

[7] Copyright Works, at 5

[8] http://clcuts.blogspot.com.au/

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The Australian Law Reform Commission (ALRC) today released the Issues Paper for its current inquiry into Copyright and the Digital Economy.

Headed by Professor Jill McKeough (Dean of Law at the University of Technology, Sydney), the review is focusing on the suitability of current exceptions and statutory licences in the evolving digital marketplace.

The ALRC seeks comment on a wide range of issues, some of these include:

Time-shifting exceptions and private online use of material

Australian copyright law contains an exception allowing individuals to record TV broadcasts on their own devices for later private and domestic viewing.

Technological developments now allow third-parties to record the broadcasts and store these online in the cloud for the user to then remotely access and view on his or her connected devices. This issue is being considered by the courts in litigation relating to the Optus TV Now service.

There is some debate as to what extent private users can utilise third-parties to record material on their behalf and then communicate this to them via online platforms when relying on the private use exceptions.

Question 9 asks:

(a) should it matter who makes the recording, if the recording is only for private or domestic use; and

(b) should the exception apply to content made available using the internet or internet protocol television?

The increasing pervasiveness of social networking and user–generated online sites and the use of copyright-protected material on such sites gives rise to Question 12 that asks “Should some online uses of copyright materials for social, private or domestic purposes be more freely permitted?” and if so, what limits should be placed on such an exception?

Technical activities such as caching, back-up, data mining and cloud computing:

A number of websites and other online enterprises reproduce and communicate copyright material for technical reasons such as operational, data security or data integrity purposes. Australian law is presently unsettled on aspects of such copying.

For example, a search engine may store temporary reproductions (referred to as “caching”) content to power its search platform, or a company that backs up their data or stores it on a cloud-based platform (which involves storing both the data itself as well as copies of that data on various servers in different locations).

Question 4 asks whether copyright law should be “amended to provide for one or more exceptions for the use of copyright material for caching, indexing or other uses related to the functioning of the internet?” If so, how should such exceptions be framed?

Question 6 asks whether copyright law should “be amended, or new exceptions created, to account for new cloud computing services, and if so, how?”

The law is also currently unsettled on the issue of individual users uploading and storing their copyright-protected material with third-party online services. Question 10 asks whether copyright law should “be amended to clarify that making copies of copyright material for the purpose of back-up or data recovery does not infringe copyright, and if so, how?”

Fair Use

At present, Australian copyright law contains “fair dealing” exceptions, which allow copyright material to be used for a number of specified purposes (such as parody or satire and criticism or review).

US law contains a “fair use” provision which allows copyright material to be used without permission but differs from Australian “fair dealing” in that it has a broader, but less certain application that isn’t limited to use for a particular purpose.

Question 52 asks whether domestic law should “be amended to include a

broad, flexible exception? If so, how should this exception be framed? For example, should such an exception be based on ‘fairness’, ‘reasonableness’ or something else?”

Transformative Uses

Transformative use occurs when a pre-existing work (such as a song, film or image) is integrated into a new work in such a way that it seen in a new light or recontextualised in a new and original way. Some “mashups” are an example of a transformative use. The doctrine is associated with US copyright law relating to “fair use”.

Digitisation of media along with more powerful software tools for manipulating such material has allowed people to create and widely distribute their own mashups, remixes and other works involving manipulation of sound, images and film created by others.

There is no specific “transformative use” exception under Australian law. Rather, those using pre-existing source material must look to general copyright principles and other exceptions (such as fair dealing) or if none apply, then seek permission to use the source material.

Question 15 asks whether “the use of copyright materials in transformative uses should be more freely permitted?”

Contracting out of exceptions

There is some debate about the role of contract and copyright exceptions. Question 55 asks whether copyright law should “be amended to prevent contracting out of copyright exceptions, and if so, which exceptions?”

Other issues

Additionally, the paper contains questions relating to the efficacy of the current statutory licensing schemes for educational institutions and the special exceptions for libraries and archives, particularly in regard to the evolving digital context.

Submissions to the ALRC are due on 16 November 2012. The ALRC is expected to release its report by the end of November 2013.

The Issues Paper can be downloaded from the ALRC’s website at http://www.alrc.gov.au/publications/copyright-ip42

For a comprehensive table of the exceptions and statutory licences in the Copyright Act, see our information sheet “Exceptions to Copyright” available under “E” from our website at http://copyright.org.au/find-an-answer/browse-by-a-z/

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