Federal Attorney-General Robert McLelland late last week declared the concept of copyright was “very much alive” in Australia, as he announced three major inquiries into its future.
McClelland addressed the Blue Sky Conference – held in honour of copyright expert, Professor Adrian Sterling on Friday last week – saying intellectual property was a key instrument of economic and cultural policy and called for broadening “safe harbour” schemes, examining the circumvention of technological protection measures and undertaking a reference on copyright.
“In some quarters, it is fashionable to decry the ‘death of copyright’ as an area of law. This view is particularly pronounced among generation Y,” he said. “However, I believe that copyright is very much alive and will continue to flourish.”
McClleland said he was keen to focus on several copyright and digital technology issues in the year ahead, starting from the Safe Harbour Schemes – which were introduced by the Copyright Amendment Act 2006 and provide legal incentives for ISPs to cooperate with copyright owners in deterring infringement, while limiting court remedies for authorisation of infringement if an ISP has complied with the law.
McClelland said the definition of Carriage Service Providers – to which it applies – was obsolete. “The definition excludes entities that do not provide network access but provide online services – Google and Yahoo are obvious examples of this category,” he said. “I therefore propose to consult on proposals to adopt a broader definition of ‘carriage service provider.”
As for the circumvention on technology protection measures, the Attorney General said the current law allowed circumvention for reasons of public interest, such as law enforcement and national security, but that other exceptions could be introduced.
“The Copyright Advisory Group has approached me for an additional exception to allow circumvention of technological protection measures for certain education purposes,” he said. “In particular they have sought an exception that would allow schools to change the format of films from DVD to MP4 for teaching purposes.”
Thirdly, he said he was keen to provide the Australian Law Reform Commission (ALRC) with a reference on copyright, in consultation with relevant industry and community stakeholders. “As I have said previously, I believe that this area would benefit from the expertise of the ALRC – as an independent, specialist legal review body it is well placed to thoroughly examine this important area,” he said.
McClelland acknowledged legislative reform in the copyright area was a challenging task as it risked lagging behind technology. “But while it is difficult task, and quite impossible to achieve a perfect balance between competing interests, it is nonetheless important that as a Government we continually examine the areas of copyright that are ripe for reform,” he said.
The conference came a day after the Australian Federal Court dismissed the Australian Federation Against Copyright Theft’s appeal against ISP iiNet, over a copyright infringement and intent content piracy case, with the justices ruling iiNet could not be held responsible for its users’ behaviour.
After hearing the verdict, iiNet CEO Michael Malone told the press the current legislation needed to adapt to new situations and that the Government should look into the issue. “We’d say as it’s happening around the world, in other places like the UK and France, the only way to get clarity on this is if the Government steps in,” Malone said.
McClelland said worldwide copyright reforms needed to focus on the digital world and tried to find new ways to deliver greater access to content. With regard to the iiNet verdict – which might be subjected to a request to appeal to the High Court – McClelland said the Government would look “closely” at the outcomes of any industry discussions.
“The Government will examine the Court’s decision – over 270 pages – and carefully consider the policy implications of this case for copyright and the digital economy,” he said.
He said this was the first case in which the authorisation liability provisions of the Copyright Act had been tested against an Internet Service Provider in relation to alleged illegal file sharing over its networks. “Although the outcome of the iiNet litigation will be important in many respects, it is unlikely to give rise to an industry wide solution to the problem of unauthorised file sharing”.