The final report of the Australian Law Reform Commission’s inquiry into Copyright and the Digital Economy has been released.
The ALRC was asked to consider whether the current exceptions and statutory licences in the Copyright Act are adequate and appropriate in the digital era.
The Report contains 30 recommendations for reform. The key recommendation is for the introduction of a fair use exception to Australian copyright law.
Copyright infringement defences
The key recommendation is to replace the nearly 30 current prescriptive exceptions with “fair use” as a general defence to copyright infringement.
Because “fair use” is flexible, the Report notes concerns that fair use uncertainties may harm rights holders.
Fair use is technology neutral, and it is not confined to particular types of copyright material, nor to particular rights.
The use of legally-acquired copyright material for the purpose of back-up and data recovery will often be fair use, and the ALRC recommended it should be considered under the fair use exception.
An alternative exception, should fair use not be enacted, the ALRC also recommended a ‘new fair dealing’ exception that consolidates the existing fair dealing exceptions and provides that fair dealings for certain new purposes do not infringe copyright.
The ALRC recommended that the statutory licensing schemes for education and the Crown continue.
To encourage the use of ‘orphan works’ when a copyright owner cannot be found, the ALRC recommends that the remedies available for copyright infringement be limited where a reasonably diligent search for the rights holder has been made and, where possible, the work has been attributed to the author.
The ALRC suggests approaches to reform of broadcasting exceptions, including changes to the retransmission scheme and the statutory licensing scheme applying to broadcasting of music; and the extension of some other exceptions to the transmission of linear television or radio programs using the internet.
The Government is considering its response.