Copyright Developments Down Under: There’s a Lot Going On

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The wheels of copyright change are grinding away in Australia, both through legislative review and court actions. I hesitate to call the process “copyright reform” because one person’s reform is another’s regressive step. The government has chosen the term “copyright modernisation” and a public consultation has been launched with a final submission date of July 4. The review is designed, in part, to gauge public support for copyright proposals included in a report on intellectual property issued by the Productivity Commission back in 2015 and 2016.

The draft report, which I characterized at the time as “using a sledgehammer to kill a fly”, took a draconian anti-copyright bent, proposing among other things that the term of copyright protection, currently 70 years in Australia after the demise of the author, be reduced to well below the Berne Convention minimum of 50 years to something in the range of 15 to 20 years; that an open-ended US-style “fair use” regime be introduced to allow use of copyrighted material without the permission of the rights-holder; that copyright holders be denied the right to prevent publication of their work; that parallel import of books published abroad be legalized even where an Australian company has the exclusive distribution rights, and that it be made legal to bypass and disable geo-filters used by companies such as Netflix to restrict online content access to markets where they own the rights. The title of the Productivity Commission’s chapter on copyright “Copy(Not)Right” will give you an idea of the ideological mindset of its authors. It was a wrecking-ball approach to the concept and structure of copyright protection, designed to disrupt and destroy rather than fine-tune and strengthen.

In its response released in August 2017, the government wisely declined to adopt the more extreme recommendations of the Commission, (unworkable proposals, like the reduction of the term of copyright protection, were dropped from the Commission’s final report) but did “note” or “support in principle” some of the more controversial recommendations (fair use, circumvention of technological protection measures, geo-blocking, expansion of safe harbours) and undertook to carry out further public consultation possibly leading to the introduction of new legislation. This has already happened in the case of safe harbours. If enacted (the Bill has been passed in the Senate and is awaiting a vote in the House), this legislation will extend safe harbours to sectors beyond the current protection for Internet Service Providers (ISPs). It will include disability, education, library, archive and cultural entities but not, at this point, internet intermediaries such as search engines.

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