The Fair Use Issues Paper - some initial thoughts

As we all know by now, the Issues Paper has been released by the Attorney-General's Department. The paper is here, and the press release is here.

I've now had a bit of a chance to have a look, and here are some first thoughts.

First, the government is not just asking the ‘small questions’. The first thing that strikes you about this Issues Paper is that they are really not shying away from being told any grievances you have about copyright exceptions as they currently exist in Australian law. Unlike some other recent inquiries on copyright (cough cough Digital Agenda Review cough cough), this is not an Issues Paper that has confined ‘terms of reference’.

The government is seeking views on:

1. the operation of the current copyright exceptions – particularly the fair dealing exceptions – in providing a balance between the interests of copyright owners and copyright users. So - how adequate are they? Are there things that should be excepted but aren't? Are there things which should not be free, but which are? Do you have a grievance about The Panel case and its interpretation of fair dealing?
2. whether the Copyright Act should be amended to consolidate the fair dealing exceptions on the model recommended by the CLRC back in 1998. That model basically involved consolidating the existing fair dealing defences into one open-ended model that specifically refers to the current exclusive set of purposes - such as research or study, criticism or review, reporting news and professional advice - but is not confined to those purposes;
3. whether Australia should introduce an exception that resembles the open-ended fair use exception in United States copyright law;
4. whether Australia should introduce a specific exception for time-shifting television and radio broadcasts. That is, taping things to watch or listen to later (ah, Senator Cook will be pleased at the idea that he might stop being a copyright infringer);
5. whether Australia should introduce a specific exception for format-shifting (eg, copying music from your CD collection onto your iPod), and if so, for what materials and under what conditions;
6. whether Australia should introduce a specific exception for making back-up copies of copyright material other than computer programs? eg, can you make a back-up copy of your childrens’ DVDs so you don’t have to buy multiple copies because of sticky hands?
7. Whether Australia should introduce a statutory license for private copying – ie, whether we should introduce some kind of levy scheme which would add to the cost of devices and the like, in order to compensate copyright owners for private copying. Some time ago, Screenrights proposed a model for this, which can be accessed here as a big pdf
8. Whether any other specific exceptions or statutory licenses should be introduced (one example that springs to mind is the orphan works issue);
9. other options for implementing reform, and the costs and benefits of those options;
10. ‘any other matters arising out of this Issues Paper’

Get that last one - any other matters!!! That means you can raise things you think they've missed.

You know what is really weird though? There is nothing there about the issue of anti-circumvention law. What is more, the question of how fair use/fair dealing interact with technological protection measures is raised by the Issues Paper - there is a whole section (paras 10.2 - 10.9). All the Issues Paper says is that:

'The Government has until 31 December 2006 to implement these obligations and will be conducting a review regarding exceptions that should be permitted, and which are consistent with the AUSFTA obligations. That review will provide an opportunity for further public consultation on this issue'

What is not clear from that statement is whether they want to hear anything now. It SEEMS to suggest they don't. But it's not entirely clear.

This will be a developing discussion. But it does seem to me that the Issues Paper leaves things very wide open. When people say 'go forth and submitify' - they really mean it. If you have a gripe in this space, now is the time to raise it. Particularly if you can back it up with proof.

A couple of points about submissions:

• examples; real life problems are always best – it is always most useful if real life problems (not speculative problems) can be identified. If you know anyone who has suffered real harm from the absence of a sufficient exception, then let them know about the review. Similarly, if you know someone who has suffered because some exception is too broad, tell them too!
• Anyone proposing an exception must really try to address, or find someone who can address, the issue of compatibility with the Berne 3 Step test. AGs have put this upfront in their Issues Paper. I think they are saying that effective submissions require information on this point (or, that they will need some submissions on this point before they move on anything) when the Issue Paper says 'Proposals for new exceptions, or changes to new exceptions, in the Copyright Act must be consistent with the above three-step test'.
• One key issue the AGs are grappling with is the possible relationship between a fair use exception and existing exceptions in the Act. Should fair use be ‘added on’? Should it ‘replace’ other defences? (see para 13.6)

I’ll have further thoughts as I go along about the details of the Issues Paper. But just in case anyone is interested, and because this blog has no really good ‘index’, I’ve created an index of my posts that relate to issues that arise in the context of this review. That post is here.