Government eyes more copyright exceptions

The federal Attorney-General's office is considering a more flexible approach around exceptions to copyright measures in response to increasing access to digital content.

The department is now leading two separate reviews of the Copyright Act that may see the Federal Government allow individuals and organisations to reproduce and use copyright material in limited cases.

The largest of the reviews, Australian Law Reform Commission’s (ALRC) copyright reform inquiry, is due to report by November 30 next year.

It is set to overhaul the Copyright Act with a finalised terms of reference delivered by the Attorney-General's office last week indicating a wider scope for the review than initially proposed.

The final ALRC review terms now cover consideration of “fair use” exceptions, instead of current "fair dealing" approaches currently used. A fair use approach is considered more closely tied with US-based copyright practices, permitting exceptions on a case-by-case basis.

Exceptions allowed under current legislation, such as the time-shifting exception introduced in 2006, have been confined since the high-profile case between Optus, Telstra and the sporting bodies in April. The case is subject to a High Court appeal.

Technical protections management

However, a second — and less well known review — has also been undertaken by the Attorney-General's office into “technological protection measures” exceptions, or digital locks that otherwise obstruct access to copyrighted content.

The scope of the review is more narrow, as it only focuses on "additional" exceptions related to bypassing, disabling or otherwise circumventing access controls on certain technologies.

The measures are allowed in specific circumstances under Schedule 10A of the Copyright Regulations.

iTnews sought clarification from the department about its scope but did not receive a response at time of writing.

However, the review does not appear to cover matters such as digital rights management.

Currently included in exceptions for review:

• software reproduction to make interoperable products;
• use of copyright material for educational purposes and assisting people with disabilities;
• use of copyright material by libraries, archives and cultural institutions for certain purposes;
• reproduction of sound recordings for broadcasting purposes;
• access where an access control is not operating normally and a replacement control is not reasonably available; and
• access where a measure damages a product, or where circumvention is necessary to repair a product.

The review of technical measures can also include consideration of whether any of those exceptions will be revoked.

“We are very excited about the review that is being undertaken and pleased the [Attorney-General is] taking some action on this,” Ellen Broad, executive officer of the Australian Digital Alliance, told iTnews.

However, the disconnection of the two reviews was disappointing, she said.

The review of technical measures will report before the wider inquiry into copyright reform, and would not take into account any new exceptions the ALRC might recommend.

She said the technical measures review focused solely on existing exceptions In the Copyright Act, and would not be able to account for something more flexible like “fair use”.

Broad also criticised the review for being "quite narrow” in scope, as it did not take into account a lot of consumer activities.

“We are unclear, for example, whether it takes into account format shifting and the need to circumvent TPM for format shifting. They are usually copy control measures," she said.