Submission to the Federal Government’s review of fair use and other copyright exceptions

Although copyright law has a role to play in fostering innovation in the arts, Australian law has not kept pace with the technological changes of the last few decades. Current technology provides consumers with many new ways to enjoy copyrighted works, and the law should recognise this by not prohibiting them from using legally acquired works in the manner they wish.

I support the introduction of fair use provisions into Australian copyright law, containing broad principles of fair use rather than specific terms. Specific exemptions, as in the CLRC proposal, would become out of date as new technologies emerge. Rather, the law should enshrine the rights of consumers to use content they have acquired lawfully in a variety of ways, while protecting consumers from attempts by foreign-owned content firms to restrict their ability to do so. For instance, many consumers are prevented from copying music from CDs to their MP3 players by anti-copying technology introduced by American music companies fearful of losing revenue to online file-sharing systems. Under any new fair use provisions, copying from a work’s original medium to another device should be clearly permitted.

In other words, time-shifting and format-shifting must not remain illegal. These activities have been common ever since the invention of VCRs and photocopiers, so without an updated Copyright Act the majority of Australians will continue to infringe the Act. New provisions must use broad terms to allow time-shifting and format-shifting as fair use, or else they too will become out of date over time. In addition, consumers should be entitled to make back-up copies of any copyrighted work they have purchased – not just computer programs – given that many content producers sell their works on cheap and unreliable physical media.

The most damaging form of copyright infringement has always been the selling of unauthorised copies of commercial content. This should remain illegal, and should be the primary target of the Copyright Act’s prohibitions. Aside from this, there is no reason for the law to harshly punish individuals who create copies for their own personal use. There are many instances where individuals might have valid reasons to make unauthorised copies – for instance, in ‘burning’ a compilation CD from individual tracks of music CDs they have already purchased. This form of copying can be a form of backup, as many consumers create such CDs to avoid damaging their original copies during a holiday or while their car is parked in the sun. In making small-scale copies like this, individuals are not causing any undue harm to the copyright owners, so there is little point in prohibiting this activity. Rather, the law should focus on those who attempt to mass-produce illegal copies in a manner detrimental to content businesses.

This said, fair use is not the only area in which current copyright law needs amending. Measures prohibiting the circumvention of electronic copyright protection must not interfere with fair use rights. Generally, when government is asked to strengthen such measures, it is almost entirely a knee-jerk reaction by major content producers afraid of a new technology. Yet historically, new technologies have only ever improved their businesses – for example, the VHS cassette created new opportunities for movie companies, despite their strong initial fears. Thus, it is far more important to protect consumers’ entitlement to enjoy works they have lawfully acquired in a variety of ways. In a general sense, it is almost never necessary to legislate for the protection of corporate interests from new technologies.

In addition, copyrights should expire a reasonable time after an author’s death, and this time should not be increased. Without reasonable provision for the expiry of copyrights, works do not enter the public domain, which limits the cultural heritage enjoyed by all Australians and hampers the ability of artists to create derivative works. Although the Australia-US Free Trade Agreement creates a need to extend this expiry time, any further extensions cannot be tolerated. If a copyright owner cannot make a reasonable profit in the author’s lifetime plus a further 70 years, it is unlikely they will gain anything from any further period of copyright. In that same time, the Australian artistic community will suffer from not having free access to the ideas and techniques in that work. Modern music, for instance, often draws on harmonies and structures from earlier public-domain works.

In conclusion, the current Copyright Act has been detrimental to Australian consumers, by prohibiting the copying actions that new technologies depend on. Thus, copyright law reform is necessary and urgent. Without it, Australian consumers will not be able to fully enjoy the benefits of new content technologies, as copyright owners will be encouraged to put in place anti-copying measures. If they do not do so, individuals will simply disregard the law and make copies anyway. In addition, Australian artists and businesses need copyright reforms to be able to compete in the modern ‘information age’ cultural marketplace. Broad fair use provisions, interpreted by the courts, must be the central aspect of any such reforms.

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Tuesday, 28 June 2005

Hourann Bosci

2005-06-28T00:51:08