Discussion paper
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2018 marks 50 years since the passage of the Copyright Act 1968 (the Copyright Act). Copyright continues to play an important role in Australian markets and communities. In particular, the Copyright Act provides legal rights to copyright owners and balances this with public need to access copyright materials.

In recent years, the Copyright Law Review Committee (CLRC), Australian Law Reform Commission (ALRC) and the Productivity Commission (PC) have reviewed several copyright issues in depth.

This paper begins the Department’s consultation on reform options, following the Australian Government’s response to the Final report of the Productivity Commission Inquiry into Australia’s Intellectual Property Arrangements (PC report). It asks for views on three areas of the Copyright Act that may benefit from modernisation:

  • flexible exceptions, which need to adapt over time to provide access to copyright material in special cases as they emerge
  • contracting out of exceptions, which can reduce access to copyright material for users
  • access to orphan works, which exist when copyright owners can’t be found and users lose access to copyright materials.

As the world becomes more digital, it is easier to make, distribute and consume content—often in ways not foreshadowed in the analogue world. In the past, uses of copyright material often only triggered a single right under copyright. Now, making content available digitally involves exercising multiple overlapping copyrights including the rights to reproduce, communicate, and make available to the public.

The ease of access and creating in the digital world also amplifies existing policy issues in copyright. For example, in the analogue world it can be difficult in some cases to seek permission to use material. In the digital world, seeking permission can be even more difficult when information about the copyright owner is unreliable. Photos and text are often posted quickly, without full information about the copyright owner. When sharing content online, any metadata about the owner is often detached or replaced. This leaves many copyright works orphaned, and separated from their owners. Digital creation and reuse also creates other challenges for copyright owners seeking control, institutions and intermediaries building new business models, and copyright users seeking access.

In proposing a way forward for reform, the Department of Communications and the Arts (the Department) recognises copyright’s role as part of a wider intellectual property system that is:

  • effective—The system should be effective in encouraging additional ideas and in providing incentives that ensure knowledge is disseminated through the economy and community.
  • efficient—The system should provide incentives for IP to be created at the lowest cost to society.
  • adaptable—The system should adapt to changes in economic conditions, technology, markets and costs of innovating.
  • accountable—The policies and institutions that govern the system, and the way that changes are made to them, need to be evidence-based, transparent, and reflect community values.

The issues discussed in this paper complement the issues raised in the Department’s disability access and Copyright Regulations projects completed in 2017. They also complement the Department’s Review of Code of Conduct for Copyright Collecting Societies and ongoing work on safe harbour reform.

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