Legislative reform takes time. This is not something that is unique to copyright policy. One only needs to look at the history of the manage equality debate in Australia to see that. In this, the 50th anniversary year of the Copyright Act 1968, the Government is seeking to resolve some longstanding copyright controversies and to bring about legislative reform.
19 March 2018 signalled what may be the end (for the time being) of the debate about the extension of the copyright safe harbour. The Senate Standing Committee on the Environment and Communications tabled its Report on the Copyright Amendment (Service Providers) Bill 2017. As discussed previously the Bill extends the copyright safe harbour to cultural and educational institutions as well as organisations assisting people with a disability. In recommending passage of the Bill, the Committee noted:
“Given the divergence of stakeholder views and the complexity of the issues being considered, the committee supports the Government’s incremental approach to safe harbour reform.” [para 2.56]
While the Greens tabled a minority report advocating the extension of the sae harbour to service providers generally, query whether this will present any obstacle to the Bill’s passage.
And with one issue (almost ) off its “to do” list, the Department of Communications and the Arts published a Discussion Paper seeking views on three outstanding copyright policy issues: flexible exceptions, contracting out and orphan works.
These issues have been around for a long time and have been amongst the most controversial . What is interesting is the tone of the Discussion Paper, which seems focused on fostering common ground between stakeholders.
As a sign of its intention to encourage stakeholder engagement, the Department has invited submissions on “flexible exceptions”. Sure, fair use is one of the options put forward, but it also invites stakeholders to comment on extending the existing fair dealing exceptions (as per the ALRC’s second option).
What is also significant about the Department’s fair use proposal, is that it uses the same factors as currently exist for fair dealing for research and study. That is, it includes a fifth factor of “commercial availability” that is not part of fair use jurisprudence in the US. This may provide some comfort to those (such as myself) who believe that getting the factors right is critical to any introduction of flexible exceptions and rights holders who are concerned about the impact that fair use may have on their business models.
As readers may recall, when section 200AB as introduced in 2006 it was said to respond to the need for flexibility. In 2017 sub-section 200AB(4) was abolished and replaced by the new fair dealing execution for people with a disability. The Discussion Paper also canvasses views on what changes should be made to section 200AB.
Another issue that has been around for a long time is contracting out of exceptions. The policy issue is whether contractual practices frustrate the operation of copyright exceptions. It was canvassed in detail by the Copyright Law Review Committee in its 2002 report Copyright and Contract and has been examined by a range of inquiries since, most recently by the Productivity Commission.
The Discussion Paper puts forward two options: making unenforceable contracting out of prescribed purpose exceptions or alternatively, making unenforceable contracting out of exceptions in general. It asks stakeholders what exceptions should be protected again contracting out and the extent to which they support amending the Copyright Act to make contracting out of exceptions unenforceable.
As some will know, I was the Director of the Copyright Law Review Committee Secretariat back in 2002 and had responsibility for the Committee’s Copyright snd Contact Report. However, this is an issue about which my thinking has evolved as I have become less of a theorist and more of a pragmatist. Back in 2002 we could scarcely imagine what “e-commerce” would look like today. The International marketplace for copyright material leaves me wondering about the utility of a domestic law rendering contracts unenforceable.
Orphan works are works where the copyright owner is unknown or cannot be found. This can lead to such works remaining unused because there is no means of obtaining a licence. This issue has not been around for as long as fair use or contracting out and seems to be an area where there is genuine willingness to find solutions. However, as the Discussion Paper makes clea, the Government has some reservations about some of those solutions.
The Discussion Paper puts forward three options: a direct exception, a limitation on remedies or a combination of these approaches. In doing so, it states that non-leiglsative solutions previously put forward such as risk management or extended collective licensing only provide partial solutions to the issue. It will be interesting to see what stakeholders come up wth in response to the Discussion Paper.
Submissions are due to the Department on 4 June. The lengthy consultation period is another sign that the Department wants stakeholders to reflect on the issues and to engage. So there you are, a pre-Easter gift from the Government, but if you get your submission in on time, you will be able to relax and enjoy the Queen’s Birthday long weekend!