The vexed issue of Australian copyright law reform: Government undertakes further consultation

On 19 March 2018, the Department of Communications and the Arts released its Copyright Modernisation Consultation Paper addressing key proposals for the reform (or rather "modernisation") of Australia's copyright laws and regulations.

What is the purpose of the Consultation Paper?

The Consultation Paper begins the Department’s consultation on reform options following the Australian Government’s response to the final report of the Productivity Commission Inquiry into Australia’s Intellectual Property Arrangements (PC Report).

What are the issues for consultation?

The Consultation Paper asks for views on three areas of the Copyright Act that may benefit from modernisation:

• the expansion of flexible exceptions to copyright infringement in order modernise the circumstances in which access to copyright material is permitted. In particular, the Department is seeking views on whether an open-ended "fair use" exception similar to that in the United States should be introduced in Australia or, alternatively, if the existing list of "fair dealing" exceptions should be expanded to accommodate changing community, technology and business standards (such as non-commercial private use, library and archive use, educational uses, quotations, text and data mining, certain incidental or technical use by online service providers and government uses in the public interest).
• identifying current or proposed exceptions that should be protected against "contracting out". The Department seeks views on whether parties to an agreement "contracting out" of copyright exceptions should be unenforceable for all exceptions or limited to some exceptions for a prescribed purpose.
• reforming access to orphan works (ie. copyright material where an owner cannot be identified or located). In particular the Department seeks views on whether remedies for copyright infringement of orphan works should be limited when the user has conducted a "diligent search".

What has been previously said on these issues?

The Consultation Paper is the latest in a series of publications addressing copyright law reform in Australia. In the last five years, the Australian Law Reform Commission published its report on Copyright and the Digital Economy in 2013, Australia's Productivity Commission published the PC Report in 2016 and the Australian Government provided its response to the PC Report in 2017.

The position of each on the topics discussed in the Consultation Paper is:

It appears that, at the very least, a consensus is forming around the limitation of remedies for infringement of orphan works, in certain circumstances.

The light at the end of the tunnel - when will reforms finally be proposed?

The issues discussed in this Consultation Paper have already had a lot of scrutiny, yet the Government is keen to obtain further input from stakeholders. The Government's caution with respect to these issues demonstrates the difficulty in managing the competing interests of rights holders and copyright users, particularly on the controversial issue of a proposed fair use exception.

Submissions are due by 4 June 2018.

Also, the Department will hold a series of roundtables on specific reform issues in late April through to the middle of May, which multiple stakeholder groups can attend. The Department expects to contact stakeholder groups with details of these roundtables in April.