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Why tech innovators could benefit from recommended changes to copyright law

Why tech innovators could benefit from recommended changes to copyright law

Productivity Commission recommends introduction of "fair use" clause

Aussie software developers and technology innovators could benefit from proposed copyright law changes recommended by the Australian Productivity Commission.

The Australian Productivity Commission delivered its final report on intellectual property on 20 December, following a 12-month inquiry and has recommended the government introduce a “fair use” clause in the the Copyright Act.

Minister for Industry, Innovation and Science, Greg Hunt, and his assistant minister, Craig Laundy, have given industry until 14 February, 2017, to provide feedback on the recommendations, or 35 working days from the report's release.

In its report, the Commission found that Australian law which permits the use of copyrighted works only in specific circumstances - under a provision known as ‘fair dealing” - should be replaced by a broader provision similar to the US’ “fair use” clause.

“The Commission considers there are firm grounds now, and even stronger grounds looking to the future, for amending the Copyright Act to replace Australia’s current exceptions with a broader fair use exception,” it said in the report.

Such a provision would allow for the use of copyrighted material in circumstances that can be proved to be fair such as parody, education, and the creation of certain derivative works.

Google won a recent court case in the US brought by Oracle after invoking the “fair use” clause. Oracle argued that Google had used its Java platform to create its Android operating system but lost the latest round of the court battle because the use of copyrighted material was deemed to be fair in the creation of the derivative work.

“Importantly, fair use would not replace payment for copyrighted works that are commercially available to users, but reinforces that user interests should also be recognised by Australia’s copyright system.

Adopting fair use would benefit follow on creators and innovators, Australian consumers, schools, other education institutions, libraries and archives,” the report stated.

The inquiry was told that under the existing law, Australian companies would have been unable to develop new technologies because the current “fair dealing” clause requires that special exemptions be made to the law which allow the use of copyrighted material in specific circumstances.

“Australia’s current exceptions for fair dealing are too narrow and prescriptive, do not reflect the way people today consume and use content in the digital world, and do not accommodate new legitimate uses of copyright material,” the report stated.

Educators strike back

In a submission to the Productivity Commission, The Council of Australian Governments’ Education Council (CAG) - which represents Australian public, private, and catholic schools - claimed the current system was ineffective, inefficient, not adaptable, and not accountable.

“While education and innovation policy is focused on increasing Australia’s digital and STEM [science, technology, engineering, and mathematics] capabilities, copyright is operating as a roadblock,” it said.

The CAG sighted prohibitive costs and administrative duties associated with complying to current copyright law when obtaining material for educational purposes.

Universities Australia made similar criticisms in its submission and said its members were unable to compete effectively with overseas institutions due to the time required to obtain copyright permissions which were not needed in countries like the United States.

In reaction to the submissions from educators, the Commission recommended the government extend to universities, schools and libraries the so-called "safe harbour" provisions which protect internet service providers (ISPs) from liability for copyright infringements by their users. It also recommended the market for books be opened up to overseas competition.

Fixing issues with the current system

The Commission found that a fair use clause would benefit Australian business and the broader economy because it would better align with community expectations.

“Several participants pointed to the disconnect between Australia’s copyright arrangements and community expectations and understanding about permissible uses of copyright material,” it said.

It added that a “fair use” clause would be no more uncertain than the existing “fair dealing” clause and would comply with international law and the laws of many of Australia’s trading partners.

The Commission also said it found it impossible to determine how the agency handles the $140 million it collects from schools and other institutions. It recommended the agency be subject to a governance review by the Australian Competition and Consumer Commission (ACCC) and be monitored.

The report also recommended the establishment of a low-cost, British-style Intellectual Property Enterprise Court to quickly settle disputes by limiting costs and the time spent in court.

Such an institution is designed to allow small copyright and patent owners, such as individual license holders and independent software vendors, to bring actions against large corporations for stealing their work without facing prohibitive legal costs.

“The key policy question for Government should be how to design exceptions that maximise the net benefit to the community,” the report said.


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Tags fair useGoogleProductivity Commissionintellectual propertyOracle

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