Wednesday 11 December 2013

Australian Law Reform Commission recommends introducing a 'fair use' style exception

The Australian Law Reform Commission had been tasked by the former Labor government with inquiring into the adequacy and appropriateness of Australia's copyright exceptions and statutory licences in the digital environment. Now, after exhaustive issues and discussion papers, and more than 850 public submissions, the Commission has delivered its final report to the new government.

It hasn't yet been tabled, but questions were asked about the report in Parliament last week, and the answers assure us that the ALRC is recommending some big changes. Most significantly, the Attorney-General noted that it has 'recommended the introduction of a flexible fair-use exception as a defence to copyright infringement'. This is a highly significant recommendation, but won't come as a surprise to anyone who has been following the Enquiry. In its discussion paper, the ALRC exhaustively canvassed the available evidence and found:
The ALRC considers that fair use would provide flexibility to respond to changing conditions and would assist innovation. These arguments outlined earlier are not repeated here. In the ALRC’s view, a fair use regime will: employ technology neutral legislative drafting; assist predictability in application; minimise unnecessary obstacles to an efficient market; and reduce transaction costs.  
What else will be in the Report? The Attorney-General gave us a few other clues. In addition to recommending a fair use style exception, the ALRC has also apparently:
recommended retaining and reforming some of the existing specific exemptions and introducing certain new specific exemptions; amending the act to clarify the statutory licensing scheme; limiting the remedies available for copyright infringement to encourage the use of orphaned works; reforming broadcasting exemptions and amending the act to limit contracting-out terms. 
These tantalising hints suggest that the report will be a must-read. We'll let you know when it becomes publicly available - and how the Australian government responds.

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