ALRC inquiry into copyright and the digital economy

By Libby Baulch

The Australian Law Reform Commission (ALRC) is inviting submissions on copyright and the digital economy. There is an issues paper containing 55 questions: submissions are due by 16 November.

The ALRC sees the ‘digital economy’ as covering social as well as economic activities, and refers in the issues paper to the government’s significant investment in infrastructure, and its cultural policy.

The terms of reference for the inquiry focus on ‘exceptions’: situations where you can use other people’s content without the permission usually required. These encompass both ‘free’ exceptions (e.g. for research, criticism and parody) and ‘statutory licences’ (no permission, but fair payment). Statutory licences include those for educational use and government use of text and images, administered by Copyright Agency, that deliver payments to publishers and authors. The ALRC is looking at whether some uses that currently generate payments to content creators and publishers should instead be allowed without any payment.

There is also scope for limiting or removing exceptions that are not working fairly, for example because there are now efficient licensing solutions that enable easy access to content.

The ALRC is interested in how the copyright environment is currently working in practice, including for authors and publishers, to get a better idea of whether there should be any changes.  It also wants to know how the copyright environment affects the creation, development and dissemination of new content. For example, what is the role of terms of use that set out how people can and can’t us the content, and what is the role of anti-piracy processes such as website takedown notices.

It is particularly interested in whether there should be changes to encourage activities enabled by digital technology, such as ‘sharing’ other people’s content on social networking sites, ‘mashing up’ up people’s content to make new works and storage in the ‘cloud’.

Another issue whether Australian copyright law should include a ‘fair use’ exception similar to that in US copyright law. This was previously considered and rejected, but is back on the agenda. Google’s book digitisation project in the US was founded on an argument that it was allowed under the fair use exception, a view given some support in the recent HathiTrust case.

Other areas for which exceptions are being considered are:

  • text and data mining (e.g. of scholarly journal articles)
  • ‘orphan’ works (where the rightsholder can’t be found)
  • contractual provisions that conflict with activities allowed by exceptions.

There have been a number of similar inquiries recently in other countries, including the Hargreaves inquiry and subsequent review by the Intellectual Property Office in the UK, and the inquiry by the Copyright Review Committee in Ireland.

You can make an online submission to the ALRC, and view the submissions made to date.

Following its consideration of submissions on the issues paper, the ALRC will release a discussion paper in 2013, and then its final report by November 2013.