Copyright in the digital age: Australia, ACTA and the Trans-Pacific Partnership Agreement

In February this year, Attorney-General Nicola Roxon announced the Australian Law Reform Commission (ALRC) would conduct an inquiry into copyright law to make sure it was keeping pace with the digital age.

The inquiry was initially flagged by former Attorney-General Robert McLelland in 2011.

"Fifteen years ago no one used Google as an internet search engine, viewed YouTube videos on iPads or listened to music on their mobile phones," McLelland told the 15th Biennial Copyright Symposium on 14 October in Sydney.

"Electronic copies of legal texts were become available but these were usually in disk form rather than available online. The challenge for industry and government is how to deal with the ever-growing pace of the development of digital technology…

"The [ALRC] inquiry will seek a review of whether the exceptions in the Copyright Act are adequate and appropriate in the digital environment. Currently the Copyright Act has general exceptions to the rules regarding infringement of copyright … in a fast changing, technologically driven world it is vital for us to see whether existing statute is appropriate and whether it can be improved.”

There are currently several general exceptions in the Copyright Act regarding infringement of copyright. These include: fair dealing, the 10 per cent rule and private copying when format-shifting, time-shifting or for special purposes.

There are also specific exceptions such as allowing making a copy of a computer program resulting from the process of normal use of the program or for back-up purposes. However, in a fast changing, technologically driven world it is vital for us to see whether existing statute is appropriate and whether it can be improved.

Draft terms of reference for the inquiry into the Copyright Act 1968, which was amended in 2006, were released in March. Under the draft terms of reference, the inquiry won't look at issues raised by P2P file sharing and ISP safe harbour provisions. Instead, it will focus on whether further exceptions should be added to "facilitate legitimate use of copyright works to create and deliver new products and services of public benefit" and "allow legitimate non-commercial use of copyright works for uses on the internet such as social networking".

The ALRC inquiry is also likely to examine exceptions such as fair dealing, the 10 per cent rule and private copying when format-shifting, time-shifting or for special purposes, says Australian National University College of Law associate professor Matthew Rimmer. It could also contemplate new exceptions, such as a defence of fair use, access to orphan works and protection for transformative uses and mash-ups, Rimmer says.

Websites such as YouTube could also potentially be in the firing line due to content such as mash-ups being considered copyright infringement, but Rimmer says he would like to see content such as this fall under a defence of fair use.

“The US social networks like Facebook and YouTube and Google and Twitter have been allowed to flourish in part because there is a flexible defence of fair use in the US," Rimmer says. "I think the digital economy in Australia has been somewhat unduly constrained by a very fierce copyright regime.

“A defence of fair use is also important in terms of allowing for a wide range of consumer uses, such as time shifting and space shifting and format shifting.”

While copyright law can have the biggest impact on consumers and end users, Kim Heitman, secretary of Electronic Frontiers Australia, says that they have been locked out of discussions over copyright laws. He says copyright law reform has generally failed to take into account how the changing digital landscape has changed the concept of copyright and copyright owners are failing to adapt themselves to changing requirements from consumers.

For example, he says, Australian consumers have to resort to illegally downloading music, movies and television shows because they are restricted from legally downloading them from US sources.

“The people who are making the rational decisions who use piracy are doing so in the absence of a legal alternative. If they had a legal alternative, I think that would drive out piracy very quickly indeed,” Heitman says.

“So we end up with the situation where other parts of the world are doing a much better job on copyright from a consumer’s perspective than we are."

The ALRC inquiry coincides with the international debate about two transnational agreements - the Anti-Counterfeit Trade Agreement (ACTA) and the Trans-Pacific Partnership Agreement (TPPA).

ACTA was finalised 15 April, 2011 and signed by Australia, Canada, Japan, Morocco, New Zealand, Singapore, South Korea and the US in October 2011, requiring each party to ensure there are procedures for civil and criminal enforcement against infringement breaches.

The treaty aims to combat copyright and IP issues on an international level, particularly when it comes to enforcing breaches, and not only covers the digital environment, but also targets counterfeit goods and generic medicines.

The agreement covers 45 articles in six chapters, including: legal frameworks for enforcing IP rights, including civil and criminal enforcement and border controls for customs; institutional arrangements; and provisions which outline principles and procedures in respect of the treaty’s status and execution.

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Rimmer says that while ACTA is concerned with intellectual property enforcement, it avoids dealing with exceptions, which is the area being examined by the ALRC.

There are myriad concerns with ACTA. Rimmer says the main concern is that “secretive international negotiations [like] ACTA and the TPPA will run rough-shod over domestic law reform processes, like the ALRC inquiry, and trammel the ability of the Australian Parliament to make 'Australian-made' intellectual property law.”

Heitman also says the IP prohibitions in the agreement are not balanced, compared to those in the US.

“In Australia, we only have a limited set of exceptions for ‘fair dealing’ which are very out of date. For example, you can copy a video tape but not a DVD,” Heitman says.

“When technology changes, the US exception of ‘fair use’ immediately kicks in to allow consumers to use the devices they’ve bought – in Australia we have to wait until Parliament gets around to legislating for a new permitted use.

“So, under Australian law we presently have a right to back-up computer software and computer programs, but can’t breach any digital locks inserted by the IP owner to do so.”

He says ACTA also sets out guidelines but does not prescribe what and how penalties should be enforced for breaches.

“Depending on the strength of character of the government that’s entered into this agreement, you can ... take the position that it does nothing more than confirm our existing obligations under the Australia-US Free Trade Agreement,” Heitman says.

Heitman is particularly critical of the role rights owners have played in moulding ACTA. “The rights owners are absolutely rapacious in what they want the copyright law to do for them,” he says.

Copyright owners are also trying to make ISPs, schools and businesses liable for what their users do on their network, Heitman says. “So effectively, if you don’t monitor your users, you’ll be liable for whatever they do. This is quite an anathema to any sort of criminal law and to the civil process,” he says.

“Secondly, they want to have all of the law enforcement about copying done by the internet service providers and by the police – they’re not making any attempts to present themselves as part of this market."

Meanwhile, the TPPA is a proposed Pacific Rim free trade agreement with high level commitments across several areas, including intellectual property. Australia, Brunei, Chile, New Zealand, Singapore, Malaysia, Peru, Japan, Vietnam and the US have all signed the agreement.

While the text of the TPPA has not yet been disclosed, Heitman says it is likely to cover temporary copies, such as internet caches and RAM in computers. It is also seeking to end parallel imports, presume guilt in copyright infringement claims and introduce a three-strike rule to throw offenders off the internet.

“The IP owners are really shameless now; seeking royalties for temporary copies is likely to really harm internet services," Heitman says. "Under these rules, Google, Facebook and YouTube would be heavily taxed by IP owners and zone marketing would be cemented in international criminal law.”

The TPPA has been dubbed 'ACTA on steroids'. “I think the description of the Trans-Pacific Partnership Agreement as ACTA on steroids is a fair one," Rimmer says. "The theme is that there needs to be a change in the way in which we negotiate copyright law reform instead of having these international Trojan horses being used to push industry agendas.”

The ALRC is due to hand down its report on copyright law reform no later than 30 November 2013. Rimmer says how recommendations can take years to enact and how quickly they are are followed up can largely depend on which government is in power at the time. For example, he says the last inquiry by the ALRC was carried out in 2004 and took eight years to implement recommendations.

“My hope is that the ALRC inquiry will be an opportunity for evidence-based policy making in relation to copyright law. There’s been a big problem with copyright law reform being driven by ideological agendas or corporate agendas,” Rimmer says.

Follow Stephanie McDonald on Twitter: @steph_idg

Follow Computerworld Australia on Twitter: @ComputerworldAU


Copyright © 2012 IDG Communications, Inc.

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