Copyright and common sense: draft Copyright Act reforms to keep up with an increasingly digital age

The Australian Government has released an exposure draft of the Copyright Amendment (Access Reform) Bill 2021 for public feedback, which aims to update and simplify provisions within the Copyright Act 1968 (Cth) to respond to an increasingly digital environment.

The exposure draft seeks to update copyright laws to suit the digital environment, and simplify existing copyright laws around the non-commercial use of copyright material. The reforms are primarily targeted at non-commercial use by the cultural, education, research and government sectors, but also seek to open up access to "orphaned" copyright material and introduce a new fair dealing exception for quotation.

There are five main reform measures in the draft Bill:

• Schedule 1: limitation on remedies for use of orphan works
• Schedule 2: new fair dealing exception for non-commercial quotation
• Schedule 3: update and clarify library and archives exceptions
• Schedule 4: update and restore education exceptions
• Schedule 5: streamline the government statutory licensing scheme

The Government is also undertaking a review of the technological protection measure exceptions in regulation 40 of the Copyright Regulations 2017 (Cth).

Wider use of orphaned copyright material

Schedule 1 of the draft Bill allows for the use of copyright material in circumstances where the copyright owner cannot be found ("orphan works"). The purpose behind the scheme is to avoid situations where cultural and educational institutions are unable to use orphan works productively due to the fear of copyright infringement. The scheme will limit relief in situations where:

• a reasonably diligent search has been undertaken for the copyright owner within a reasonable time (what constitutes a reasonably diligent search pursuant to new section 116AJA is dependent on the circumstances, including who conducted the search, whether the use is for commercial use and the search technologies available at the time);
• the copyright owner cannot be identified or contacted; and
• if reasonably practicable, the author of the copyright material has been attributed.

The draft Bill also aims to balance socially beneficial use of orphan works with the interests of the copyright owners of orphan works, by setting out a method for the copyright owner to negotiate terms for ongoing use of their work if the copyright owner is identified at a later stage (new section 116AJB). If an agreement is unable to be reached, the copyright owner may apply to the Copyright Tribunal to fix reasonable terms.

A new fair dealing exception for non-commercial quotation

The amendments in Schedule 2 of the draft Bill introduce a new fair dealing exception to permit the quotation of copyright material. The exception will permit fair dealings for non-commercial purposes (or for commercial purposes where the quotation is immaterial to the value of the related product or service) where the author and title of the copyright material is identified (if it is reasonably practicable), and the material has been lawfully made public. Libraries, archives, educational institutions and governments may use the exception to support their functions, whilst for other persons and organisations the dealing must be for the purpose of "research" – a term which is not defined in the exposure draft.

In addition, the new subsection 113FA(2) sets out the following four standard fairness factors to determine whether a dealing constitutes fair dealing:

• the purpose and character of the dealing;
• the nature of the copyright material;
• the effect of the dealing upon the potential market for, or value of, the material;
• if only part of the material is dealt with – the amount and substantiality of that part.

The new stand-alone fair dealing exception is proposed to apply uniformly to all copyright material and across all technology. It is intended to reduce administrative burden and cost, in particular for academics, universities, government and researchers.

Enabling libraries and archives to perform their roles in a digital era

There are current exceptions within the Copyright Act which allow for libraries and archives to make certain copyright material available online at their premises, supply certain published works for research purposes and allow access to older unpublished copyright material and unpublished theses. The reforms in Schedule 3 of the Draft Bill seek to do away with excessively prescriptive retention and destruction requirements, and extend current exceptions in order to allow these institutions to adjust to a digital environment. New section 113KD will allow libraries and archives to supply copies of all types of copyright material to a person (including audio-visual and unpublished material) and for the purpose of private and domestic use (in addition to research or study purposes).

The new section 113KC of the draft Bill will allow for libraries and archives to make all copyright material held in the collection (including unpublished material, and material acquired in hardcopy or acquired form) available online for browsing. This will also have the positive effect of increasing access to resources beyond the premises of libraries and archives in capital cities. Online access to copyright material will assist people living in regional and remote areas or people who cannot physically attend the premises of the institution, due to COVID-19 lockdowns or otherwise.

This exception to make copyright material available online is only available if an electronic copy cannot be obtained within a reasonable time at an ordinary commercial price (new section 113KD(9)-(11)). It is also subject to the library or archives taking reasonable steps to ensure copyright is not infringed (new section 113KC(1)(b)). The draft Bill does not prescribe what would be "reasonable steps", although the discussion paper notes this may include limiting access to registered library users with password protection and for viewing only, as well as providing an appropriate attribution to the author and copyright notice.

Education exceptions and remote learning

The COVID-19 pandemic has caused a massive shift in the way that education is provided to students in Australia, with schools forced to implement remote and online learning. Existing section 28 of the Copyright Act allows teachers and students to perform copyright material in a classroom setting, but the extent to which this exception applies to remote lessons is unclear. In order to keep up with these changes, Schedule 4 of the draft Bill proposes various reforms.

New section 113MA will extend the existing classroom teaching exception to apply to the use of all types of copyright material and certain digital uses of the material, including performance of copyright material, as well as copying, communication or recording to facilitate performance in the course of giving or receiving lessons. A person giving or receiving lessons includes not only teachers and students, but also family members or friends assisting, tutors or work placement supervisors, and guest speakers.

The draft Bill also allows for the temporary recording of lessons where copyright material is presented as part of a lesson, however the recordings are not to be further copied, downloaded or shared beyond delivery to the intended audience for the necessary time period. Proposed section 113MA(2)(d) of the draft Bill allows for educational institutions to make material available online if they "take reasonable steps to limit access to the material to persons taking part in the giving or receiving of the educational institution" and the material is only used for the purposes of the lesson.

Additionally, section 106 of the Copyright Act currently provides an exception for "registered charities" (including non-government schools and other charitable bodies) to play sound recordings. The draft Bill would extend this exception to government educational institutions and other public, not-for-profit bodies.

Government use of copyright material in a digital era

Part VII, Division 2 of the Copyright Act contains the government statutory licensing scheme which allows for Crown or government use of copyright material if that use is for the services of the Commonwealth or State. This is a remunerated licence, with declared collecting societies able to collect fees or royalties from the government as "equitable remuneration" for distribution to rights holders under the scheme. The draft Bill would simplify the scheme for both the government and collecting agencies, such as:

• removing the current sampling survey requirements to determine equitable remuneration, payment arrangements and related inspection powers (pursuant to subsections 183A, 183B and 183C of the Copyright Act) and instead allow for government to reach agreement directly with copyright owners or have terms determined by the Copyright Tribunal; and
• extending the licensing arrangements, which are currently limited to government copying, to include the communication (making available online or electronic transmission of copyright material) of copyright material (new section 183B(1)(b)(ii)), thereby accommodating government usage of material in the online environment.

Governments will also be able to use material provided to them (such as correspondence, submissions) for internal purposes and, as necessary or otherwise reasonable, make that incoming material available to the public. Under this new exception (proposed section 183G) the use must be reasonable having regard to the purpose for which the material was provided, and is not for the purpose of the government obtaining a commercial advantage or profit.   

Review of Technological Protection Measures exceptions

Technological Protection Measures (TPM) are technical locks used by copyright owners to prevent access or copying of copyright material, for example, passwords and encryption software. Australia’s TPM scheme allows for both civil actions and criminal actions in response to unlicensed circumvention of TPMs. However, the Copyright Act has a number of exceptions to liability for circumventing an access control TPM.

The Australia-United States Free Trade Agreement (AUSFTA) requires a review of exceptions to the TPM provisions made under the Copyright Act every four years. The government is seeking submissions on the appropriateness of the current TPM exceptions set out in regulation 40 of the Copyright Regulations, as well as possible new TPM exceptions.

A number of the TPM exceptions are based on broad copyright exceptions within the Copyright Act, including the Part IVA exceptions for use of copyright material for educational institutions, libraries, archives and other cultural institutions, and certain use by or for persons with a disability.

Industry bodies have previously raised concerns about the broad uses of material that these exceptions cover and whether these should automatically extend to an exception which permits circumvention of TPMs. The proposed amendments in the draft Bill may also impact the TPM exceptions in the Copyright Regulations as they assist copyright material being made available online by educational and key cultural institutions. This makes the replication and dissemination of copyright material easier than ever before. Copyright owners may be concerned that the type of uses which fall within exceptions are increased, and that basing the TPM exceptions on these same provisions will increase the instances where TPMs can be avoided.

Making a submission on the proposed changes to copyright

Consultation on the draft copyright reform legislation is open until 25 February 2022. Individuals and organisations can have their say on the proposed reforms by making a submission to the Department of Infrastructure, Transport, Regional Development and Communications here.

If you have any questions about the implications of the draft copyright reforms, please get in touch.