Rights holders' big win in copyright review terms

The scope of the Australian Law Reform Commission’s (ALRC) review of copyright exceptions in providing greater access to copyright materials online will be hobbled if it has to operate under the Federal Government’s draft terms of reference [pdf].

Announced over a year ago, the review is meant to consider whether exceptions to the operation of the Copyright Act remain "adequate and appropriate in the fast-paced digital environment".

General exceptions in the Act cover issues such as fair dealing, content time-shifting and making copies of a computer program for backup purposes. 

While the draft terms state there should be an “appropriate balance” between the rights of content creators and consumers, the review will duck many of the issues relevant to ensuring that balance.

The draft terms expressly directed the ALRC not to “duplicate” issues concerning:

• unauthorised distribution of copyright materials using peer-to-peer networks;
• the scope of the safe harbour scheme for ISPs;
• a review of exceptions in relation to technological protection measures; and
• increased access to copyright works for blind and visually impaired people.

Under the terms the ALRC is required to defer to “related reviews” including the Government’s Convergence Review and presumably the Government’s Cyber White Paper being run from the Department of Prime Minister & Cabinet and due for release in the latter part of this year.

It must also defer to existing international treaties such as the Australian-US Free Trade Agreement, and have regard to all “proposed international obligations” such as the proposed ACTA and Trans-Pacific Partnership (TPP) treaties.

Text for the latter treaty remains secret and the Department of Foreign Affairs and Trade has given no assurances that its terms won't require changes to Australia's copyright regime.

The draft terms offer little direction on how the ALRC will determine which international obligations are given primacy in case of uncertainty - for example, world trade and intellectual property boards TRIPS and WIPO, versus ACTA and TPP.

Further, the terms require the ALRC to “take into account the impact of any proposed legislative solutions on other areas of law and their consistency with Australia’s international obligations”.

Exceptions to consider

The two exceptions the ALRC is expressly requested to consider are:

• the legitimate use of copyright works to create and deliver new products and services of public benefit;  and
• allowance of legitimate non-commercial use of copyright works for uses on the internet such as social networking.

The first exception seems to restate what an exception is under the Copyright Act.

The second is more promising; theoretically, it deals with caching of copyright materials by search engines and ISP services.

Yet even this avenue may be trumped by reports of a strong push in the TPP drafts to extend copyrights to cover temporary usage.

No love for orphans, fair use

Missing also from the terms is any discussion of what will be done with copyright material where the originator can no longer be traced - the so-called “orphan” works issue.

Any possibility of promoting the US-style 'Fair Use' arrangement of offering a more flexible approach to access also seems unlikely under these very narrow terms of reference.

Interested parties are invited to comment on the proposed draft terms of reference. Submissions will be accepted until April 27.