Progress in the Fair Use/Fair Dealing Exceptions Review

Well, there's a week to make submissions, if you were planning to. So get your act together!

Last week, in Sydney (15 June) and in Melbourne (16 June) IPRIA and CMCL held seminars on the copyright exceptions review.

I've already published a background paper (pdf) on the Review; now there's more - the paper I gave last week on the private copying issue. The paper's called A Comment on the Copyright Exceptions Review and Private Copying, and it's available as a pdf here. In the paper, I consider issues like - should we have a defence like fair use, or fair dealing, or a private copying levy, to get rid of the ridiculous situation where Australians are 'serial infringers'? (see also my past posts on this issue, conveniently collected here). Here's the abstract of the new paper:

The issue of private copying, and how it fits with copyright law, has hit front and centre of the current copyright exceptions review. While copying is widespread, and iPods are popular, under current Australian copyright law, almost all private copying - including time-shifting and format-shifting (or ‘space-shifting’) is an infringement of copyright. It appears that one aim of the current copyright exceptions review is to address this mismatch.

The relationship between copyright and private copying is a highly complex issue, particularly in a digital environment. A brief paper cannot hope to cover all the relevant issues involved in a manner which is anywhere near comprehensive. The aim of this paper is twofold. First, it provides a set of seven premises for assessing any proposed solution. Second, it uses these premises, and some information about systems in other countries, to offer comments on three major issues in reaching a solution. In general terms, the attitude of the writer is that specific fair dealing defences will be less useful than a more general, open-ended exception based on the principles of fair use, and that a private copying levy is unlikely to offer the best solution, involving, as it would, significant costs and opportunities for rent-seeking with little likely benefit for consumers as the use of digital rights management increases.

Comments of course are welcome, since some of this material will be making its way into any submission I make to the Review.

What impressions did I get from the Seminars we held? Here's a few thoughts:

• In essence, what happened was this. Some government people got a bit worried about how Australians were mass infringers of copyright. Understandable I guess. Anyway, they got told (at FTA hearings last year) that fair use (like they had in the US) might be a solution to this issue. So, they decided to have an inquiry about whether fair use was a good idea.
• The problem is that there's a couple of mismatches going on here.
• The first mismatch is between problem and solution. Problem: private copying. Solution: fair use. But fair use is about a whole lot of things other than private copying. Most of which are ignored in the Issues Paper (as David Lindsay has pointed out, one of the most striking things about the Issues Paper is that it completely fails to mention freedom of expression - not even once!).
• The second mismatch is between what the Attorney-General's Department want to do and what they've put in the Issues Paper, and also between what the Attorney-General's Department is thinking about, and what people out in the rest of the world are thinking about. What AGs really want to do is just focus on this private copying thing. But there are questions in the Issues Paper about other kinds of exceptions (are fair dealing defences enough?). Look at those last two questions in the Issues Paper, which are essentially, 'Is there anything else you want to propose or complain about?').
• The Issues Paper thus leaves it open for people to raise all kinds of things (libraries exceptions; museums; free speech issues that come up in fair dealing) - none of which, unfortunately, are canvassed in the Issues Paper itself.
• The unfortunate result of that (from the government's perspective) is that the Attorney-General's Department is not directing the debate on these broader issues, and it's not at ALL clear what the relevance of any submissions on these broader issues will be.
• Complicating this issue is all the previous reviews which have made recommendations on copyright exceptions which are still sitting on the government's shelf gathering dust.
• Will submissions on broader issues (like orphan works) disappear into the ether? It's really not clear. On the one hand, the AG's Department has a really clear, limited focus. On the other hand, if people don't raise the broader issues (in response to the broader questions put in the Issues Paper) the government can turn around some time in the future and say - well, you didn't raise these issues when we gave you the chance to complain.

Did I come away from the IPRIA/CMCL seminars any the wiser on the thrust of what is going on? Not really. We did have a representative of the AG's department speaking. He made it clear that private copying was the big issue. He also suggested that people wanting other exceptions changed would have to make a strong case. But that leaves us in the same position: there is one narrow focus, but with a whole lot of other issues on the periphery.

So, we have:

• some of the big issues in copyright today being raised (how broad should exceptions be; should they be overridden by contract);
• in a rather strange process that pretends that the issues are narrower (no, it's just about home taping and iPods!), but
• still leaves enough space open that you have to put some of your claims to broader exceptions in or you risk losing any chance you had of raising the problem (those last two questions in the Issues Paper are inescapable: '9. The Government seeks your view on other options for implementing reform, and the costs and benefits of those options. 10. The Government seeks your view on any other matters arising out of this Issues Paper.'

I'm confused (can you tell?).