This post was contributed by Stuart Efstathis for Creative Commons Australia.

Image by Sierra_Graphic, CC0

The Australian Productivity Commission has recommended important changes to Australian copyright law that support content creators and users in the digital age. On 29 April 2016, the Commission released a Draft Report on reforms to Australia’s intellectual property laws based on the principles of effectiveness, efficiency, adaptability and accountability. Creative Commons Australia strongly supports the passage of the Copyright Amendment (Disability and Other Measures) Bill 2016, as recommended by the Commission. That Bill will introduce extensions to copyright safe harbours and simplify the existing statutory license provisions. We also support the Commission’s draft recommendation to introduce a fair use exception into Australian law.

The Commission’s Recommendations

The Productivity Commission concluded that “Australia’s IP system is out of kilter, favouring rights holders over users and does not align with how people use IP in the modern era”. The Draft Report contained a number of useful recommendations that would make Australia’s outdated copyright laws relevant in the digital age:

• Australia should introduce a fair use exception to copyright. Fair use should replace the current fair dealing exceptions and ensure copyright laws regulate “only those instances of infringement that would undermine the ordinary exploitation of a work at the time of the infringement”;
• Under current Australian law, copyright in unpublished works lasts forever. This should be removed, allowing full use of orphan and out of print works;
• Circumvention of technologies designed to control geographic markets for digital content should not be unlawful. The law requires clarification;
• All publications funded by State and Federal governments, directly or through university funding, should be free to access through an open access repository within 12 months of publication; and
• Copyright safe harbours should be expanded to include all online service providers without an expansion of liability for copyright authorisation.

Creative Commons Australia’s Submissions

Creative Commons Australia made submissions in response on 3 June 2016, supporting many of the Productivity Commission’s recommendations. CCAU’s submissions were guided by three key principles: to ensure access to and use of content is not unnecessarily restricted; that creation and innovation is encouraged; and that open access and open licensing is supported.

Fair Use

Australia needs a fair use exception to address the needs of consumers and creators of content in a digital market. Consumers and creators need support for new expression, which necessarily builds upon existing knowledge, culture, and expression. CCAU fully supports the implementation of the replacement of fair dealing with a fair use exception. Fair use is a flexible exception more suited to the digital age and is likely to align better with consumer and creator expectations for reasonable content use. Fair use encourages the use of content for innovative purposes, reflecting the primary objective of copyright. The Australian Law Reform Commission has issued an extensive report recommending the introduction of fair use and the Productivity Commission has supported this.

Copyright Term and international law reform

Australian copyright law has steadily increased its focus on protecting rights holders over the last two decades. The Productivity Commission suggests that this is reflected in the recent extension of copyright terms from life of the author plus 50 years, to life plus 70 years. The Commission notes that this move imposed a significant cost on consumers with no corresponding public benefit. The difficulty in reforming this area is due to an overlapping web of international agreements that entrench the minimum term of copyright protection (including the Berne Convention, TRIPS, the Australian-US Free Trade Agreement, and the Trans-Pacific Partnership Agreement). As a result, Australia does not have the ability to independently determine the appropriate extents of our national copyright law. CCAU recommends a start to the difficult process of disentangling intellectual property laws from international agreements that do not advance national interests.

Unpublished Works

CCAU supports the recommendations of the Productivity Commission removing the perpetual copyright protection afforded to unpublished works under Australian law. A significant amount of Australian cultural heritage remains unjustifiably locked up in unpublished work. This content cannot be digitised, archived, preserved, or reused. This can be rectified by the passage of the Copyright Amendment (Disability and Other Measures) Bill 2016.

Geo-Blocking and the ‘Australia Tax’

Australian consumers experience higher prices, long delays, and a lack of competition in digital content distribution markets. This is known as the ‘Australian Tax’. Under current law, it is not always clear whether Australians have the right to circumvent geoblocking technology to access media goods and services sold in other markets. CCAU recommends that Australian law be clarified in this regard, and supports an amendment to the Copyright Act to include exemptions for all types of media, in the encouragement of a competitive digital market in Australia.

Open Access

CCAU supports open access to articles, research and data. Open access improves research efficiency, provides assurance of greater scientific integrity, and reduces the overall costs of research infrastructure. For information to be useful, rights to re-use this content need to be clearly detailed through the use of open licensing. This can be achieved through the use of Creative Commons licensing.

Safe Harbours

Australian creators are currently disadvantaged by safe harbour exceptions that are too narrow to allow distribution of content in the digital market. Safe harbours provide the legal certainty required for content hosts to distribute creator content. Enacting laws which promote legal access and broader use of copyright content is also the most effective way to reduce infringing activity. CCAU supports the extension of safe harbours to all online service providers.

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This post was contributed by Stuart Efstathis for Creative Commons Australia. Image by Sierra_Graphic, CC0 The Australian Productivity Commission has recommended important changes to Australian copyright law that support content creators and users in the digital age. On 29 April 2016, the Commission released a Draft Report on reforms to Australia’s intellectual property laws based … Read More "CC Australia Supports Commission Recommendations for User-friendly Copyright Reform"

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Law, by Woody Hibbard, CC BY 2.0 Uruguay is in the process of updating its copyright law, and in April a bill was preliminarily approved in the Senate. The law introduces changes that would benefit students, librarians, researchers, and the general public by legalizing commonplace digital practices, adding orphan works exceptions, and removing criminal penalties … Read More "Uruguayan rights holders seek to roll back progressive copyright reform"

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Science! by Alexandro Lacadena, CC BY-NC-ND 2.0 A few weeks ago we wrote about how the European Union is pushing ahead its support for open access to EU-funded scientific research and data. Today at the meeting of the Competitiveness Council of the European Union, the Council reinforced the commitment to making all scientific articles and … Read More "Council of the European Union calls for full open access to scientific research by 2020"

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Science! by Alexandro Lacadena, CC BY-NC-ND 2.0

A few weeks ago we wrote about how the European Union is pushing ahead its support for open access to EU-funded scientific research and data. Today at the meeting of the Council of the European Union, the Council reinforced the commitment to making all scientific articles and data openly accessible and reusable by 2020. In its communication, the Council offered several conclusions on the transition towards an open science system:

• ACKNOWLEDGES that open science has the potential to increase the quality, impact and benefits of science and to accelerate advancement of knowledge by making it more reliable, more efficient and accurate, better understandable by society and responsive to societal challenges, and has the potential to enable growth and innovation through reuse of scientific results by all stakeholders at all levels of society, and ultimately contribute to growth and competitiveness of Europe;

• INVITES the Commission and the Member States to explore legal possibilities for measures in this respect and promote the use of licensing models, such as Creative Commons, for scientific publications and research data sets;

• WELCOMES open access to scientific publications as the option by default for publishing the results of publicly funded research;

• AGREES to further promote the mainstreaming of open access to scientific publications by continuing to support a transition to immediate open access as the default by 2020;

• ENCOURAGES the Member States, the Commission and stakeholders to set optimal reuse of research data as the point of departure, whilst recognising the needs for different access regimes because of Intellectual Property Rights, personal data protection and confidentiality, security concerns, as well as global economic competitiveness and other legitimate interests.

You can read the rest of the conclusions here. Crucially, the Council said that “open access to scientific publications” will be interpreted as being aligned to the definition laid out in the Budapest Open Access Initiative: free availability on the public internet, permitting any users to read, download, copy, distribute, print, search, or link to the full texts of these articles, crawl them for indexing, pass them as data to software, or use them for any other lawful purpose, without financial, legal, or technical barriers. The only constraint on reproduction and distribution, and the only role for copyright in this domain, should be to give authors control over the integrity of their work and the right to be properly acknowledged and cited.

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