Government backs copyright industry code

The Federal Government has also moved ahead with public consultation on potential changes to copyright legislation.

Federal Attorney-General Robert McClelland

The laws were last amended in 2006 to include safe harbour provisions that brought Australia into line with provisions of the free trade agreement with the United States.

In his keynote to the symposium, Federal Attorney-General Robert McClelland announced progress to two of three measures he had proposed on copyright amendments in February.

These included a discussion paper [pdf] proposing a broadened definition of safe harbour provisions to include online content providers such as Google in addition to internet service providers.

The discussion paper had initially proposed streamlining the process required by copyright owners to identify an internet subscriber thought to have infringed copyright.

However, the initial document posted Friday appears to have been removed with its replacement no longer mentioning the streamlining aspect.

The Attorney-General's department told iTnews that the the original version of the document had been "mistakenly posted" on Friday and immediately withdrawn.

The department did not clarify whether the discovery process proposal would be introduced at a later date.

McClelland said any changes to copyright legislation required the Government to "effectively balance" protections for both copyright owners with internet user rights.

But Michael Fraser, director of the Communications Law Centre at the University of Technology, Sydney, disputed the notion that previous uses of balance had been effective in past amendments to the Copyright Act, which had nearly tripled in size over several decades.

"There has been insufficient public policy explanation and justification of amendments to the Copyright Act," he said.

"This circumstance has perhaps inadvertently led to a process of copyright law reform predicated on a so-called 'balance' where the meaning of the term 'balance' has sometimes been reduced to mean a 50-50 split between the claims of the interests which are sitting at the law reform negotiation table.

"It is fair in its way in that it is not biased to any interest [but] reform becomes more piecemeal and incoherent, the Act gets closer - three times longer than when I first read it - more complex and it lacks integrity."

Concerns on the ineffectiveness of copyright legislation in the current technological climate had led Fraser and other copyright experts to form part of an advisory group to the Australian Copyright Council to back the notion of an industry-led code.

The code, they suggested, would be legislated into future amendments to the Copyright Act in order to set out clear definitions of repeat infringers and provisions for dealing with such subscribers.

Default standards built into the Act would function as a "fallback" to the code, requiring any service provider or eligible party who did not agree with the code to still be liable for requirements under safe harbour laws.

The Communications Alliance's Stanton said he hopes an agreement can be reached by the first quarter of next year but is uncertain that can be achieved.

"We're in this position partly because the copyright legislation in this country and many other [countries] has failed," he said.

"Things will continue to move fast in this space and whatever regime we're able to agree to put in place, I think we ought to be prepared to continually review that, test its effectiveness and modify it as necessary so that it remains an effective means of addressing what is a very complex and fast-moving problem."

ALRC review update

McClelland also announced initial terms of reference provided to the Australian Law Reform Commission on potential amendments to the Copyright Act would include determining whether current exemptions to legislation are "adequate and appropriate".

The terms are set to be released for public consultation before being passed onto the commission by the end of the year.

Attempts to reform legislation are likely to coincide with ongoing litigation between film studios and service provider iiNet as the parties begin appeal hearings in the High Court this December.