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26 February, 2014

 

Legal News & Analysis – Asia Pacific – Australia – TMT

 

ALRC Releases Report On Copyright In The Digital Economy 


The Australian Law Reform Commission (ALRC) has released its final report from its inquiry on the adequacy of existing copyright laws in the digital economy. 


The ALRC recommended a general “fair use” exception to copyright infringement, which would permit the unlicensed use of copyright material where this would be “fair”. The recommendation is based on the desirability of a more flexible, broad standard based on principles, rather than the existing prescriptive “fair dealing” exceptions. The flexibility of the “fair use” exception would allow it to be technology neutral and would not be confined to particular types of copyright material. The ALRC noted that “fair use” has been applied by the courts in the United States, and it has not hindered the production of copyright material. 


The ALRC also recommended inter alia:

 

  • specific exceptions to copyright infringement where there is a clear public interest (such as preservation copying by libraries and archives, and the unlicensed use of protected material by parliamentary libraries, in judicial proceedings, royal commissions and statutory inquiries); 
  • promoting wider use of “orphan works” by introducing an exception to copyright infringement where a reasonable search for the rights holder has been conducted (and the rights holder has not been found), and where possible, the work has been clearly attributed to the author; and 
  • the unenforceability of any term that “contracts out” of the exceptions to copyright infringement, only where the unlicensed act would otherwise be permitted under the libraries and archives exceptions.

 

  • View ALRC report here.

Attorney-General Commits To Copyright Law Reform And Calls For A Crackdown On Internet Piracy 


In a speech to the Australian Digital Alliance forum on copyright, the Federal Attorney-General, Senator George Brandis QC, committed to simplify the Copyright Act, after noting that the existing legislation is “overly long, unnecessarily complex, often comically outdated and all too often, in its administration, pointlessly bureaucratic”.He also committed to ensuring that a reformed Copyright Act will be technology neutral and will allow appropriate protection of copyright material in the digital age.


The Attorney-General also addressed concerns about the illegal downloading of copyright material. Noting the High Court’s decision in Roadshow Films Pty Ltd & Ors v iiNet Ltd [2012] HCA 16, the Attorney-General called for reform to the “authorisation” provisions under section 101 of the Copyright Act. Senator Brandis said that the government would consider providing a “legal incentive” for internet service providers to prevent copyright infringement on their systems, or to require them to issue warnings to their customers who are using websites that facilitate the illegal downloading of protected content. The Attorney-General nevertheless emphasised that any law reform would not put Australian internet service providers at a disadvantage to their counterparts overseas, and that he would prefer industry self-regulation over government regulation.

 

  • View the speech here.

A Safer Internet For Younger Victorians 


As part of Safer Internet Day on 11 February 2014, the Queensland Police Service, Western Australia Police and Neighbourhood Watch Australasia promoted the responsible use of online technology. The three parties entered into a Memorandum of Understanding to join the ThinkUKnow cyber safety program that was launched in 2009. ThinkUKnow delivers on-site interactive training at school and organisations across Australia, educating parents, care and teachers on ensuring online safety for children.

 

  • View the press release here

ACCC Calls For Online Retailers To Stop “Drip Pricing” 


In a speech to the Committee for Economic Development of Australia (CEDA), the Chairman of the ACCC, Rod Sims, outlined the ACCC’s compliance and enforcement priorities for 2014. One of the ACCC’s priorities is addressing “emerging consumer issues in the online marketplace”. Mr Sims noted that enforcement action in this area will be forthcoming. He also indicated that the ACCC:

 

  • will be prioritising its scams disruption by working with money remitters to stop the fraudulent transfer of funds; 
  • will work with industry to improve standards around comparator websites that allow consumers to compare offers from different providers, noting that the information displayed on these websites could mislead consumers; and 
  • is particularly concerned about “drip pricing” because of its propensity to mislead consumers. “Drip pricing” occurs during the online booking process (for airfares and sporting event tickets, for example), when additional fees and charges are revealed and added to headline price that is advertised at the start of the booking process.

 

  • View the speech here.

 

European Court Of Justice Finds That Linking To Free Content Does Not Infringe Copyright 


The Court of Justice of the European Union has ruled that linking to protected content on a free website does not constitute copyright infringement under the Copyright Directive (2001/29/EC) – a piece of legislation that must be transposed into the local laws of member states: (ECJ) (Case C-466/12 Svensson decided on 13 February 2014). While linking involves a “communication to the public” – something that requires the copyright holder’s consent – that consent is implicit in the copyright holder’s original publication of the material on a free and unrestricted site. The case clears up an area of confusion in EU law and provides clarity to website operators who link to third party sites. The Court’s conclusions are practical, given the realities of how the internet works – although the decision will not be welcomed by providers of free online content who use their sites to generate advertising, sell subscriptions or promote their print newspapers. 


In Australia the position is that linking will generally not amount to a “communication to the public” because section 22(6) of the Copyright Act 1968 (Cth) provides that a communication is made by the person responsible for determining the content – that is, the linked website (analysed in the MP3s4FREE case: Universal Music Australia Pty Ltd v Cooper [2005] FCA 972). Linking may still involve a risk of authorising infringement if it is to infringing content.

 

  • View Ashurst’s article on the ECJ’s decision here.

 

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For further information, please contact:

 

Gordon Hughes, Partner, Ashurst
gordon.hughes@ashurst.com

 

Ashurst TMT Practice Profile in Australia

 

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