Copyright vision: copyright jails

Fair dealing and fair-use provisions allow people to, for example, reproduce and communicate material in certain circumstances without permission from the copyright owner. They are seen by many as an engine of free expression as well as a driver of creative innovation.

The Australian fair dealing provisions are very narrow (when compared to their US counterpart) and one might have thought that by not adopting a broader fair use provision we further disadvantage ourselves in the new knowledge economy. US creators and innovators are not restricted in this way - why should we?

To make it even worse, the new provisions actually tighten Australia’s existing fair dealing provisions for research and study in relation to the reproduction of literary, dramatic and musical works, taking away the flexible provisions that currently allow researchers to copy material in ways that are “fair” and replacing them with strict rules that limit copying of most hardcopy and electronic documents only to specific amounts. One page more than this amount, no matter how obscure or difficult the book is to obtain, and you risk liability.

Once again this puts Australian researchers at a disadvantage in comparison to researchers in the US and in many other countries worldwide. It also puts them at a disadvantage in relation to Australian lawyers, news reporters and even film critics, who all keep their flexible fair dealing provisions under the new legislation.

This amendment has not been widely discussed and was something of a surprise when it appeared in the Exposure Draft. It is a major break with the tradition we are used to in Australia, and subverts the spirit of the Backing Australia’s Ability agenda by increasing the barriers to students and researchers accessing the knowledge that is necessary for further innovation.

The Federal Government has granted consumers some latitude by introducing some new exceptions, including exceptions that will legalise time shifting (for example, recording a television program to watch later) and format shifting (for example, copying a CD onto a computer). However, even these exceptions only apply in very specific circumstances, and are so complex (each exception is over a page long) they will not be easily understood by anyone other than copyright lawyers.

One subset of the new exceptions, which includes the long-overdue exception to allow parody and satire, adopts almost verbatim the wording of the nebulous and controversial “three-step test” created under the international Berne Convention. This means they will only apply where the person is able to prove that their actions are a “special case”, that they do not conflict with normal exploitation of the copyright material, and that they do not unreasonably prejudice the legitimate interests of the copyright owner.

Whether this test is rightly suited for the fast-paced world of Internet innovation is something for further debate. The more immediate concern is that we have been lumped with a parody and satire provision that really needs to be taken before the courts before we have any sense of what it will mean. In a liberal democracy this level of censorship of social commentary is lamentable.

Technological protection measures

Under the AUSFTA, Australia agreed to expand liability for circumventing technological measures that are designed to protect copyright. Previously activities such as making, dealing and providing devices that allow you to circumvent these technical locks had been the focus of liability; now the act of breaking a technological protection measure (TPM) could lead to a significant fine.

The 2005 landmark High Court case of Stevens v Sony highlighted that anti-circumvention law (as it stands before these proposed amendments) requires that to receive protection under copyright law a TPM has to “prevent or inhibit copyright infringement”.

When the Exposure Draft of the proposed amendments was circulated three weeks ago it retained the important notion that a TPM is a device that prevents or inhibits copyright infringement. However when the legislation was introduced to parliament last week that requirement had disappeared. Now any technology used by a copyright owner “in connection with the exercise of copyright” will be protected - even if it does nothing to stop infringement.

This has enormous consequences for Australian consumers. What the High Court decided in Stevens v Sony was that copyright owners should not be able to invoke copyright law to enforce TPMs that control the “use” of lawfully acquired copyrighted material in ways that do not amount to copyright infringement. In doing so the High Court highlighted the importance of ensuring Australians have the liberty to use their legally acquired property as they wished.