Australian copyright law a barrier to innovation, report argues

Google-commissioned report makes case for fair use

Australia’s digital economy could be worth $139 billion by 2020, but realising its full potential requires significant changes to the nation’s intellectual property regime, a new report argues.

Google funded the new Deloitte Access Economics report, Copyright in the Digital Age.

The tech giant has been a vocal critic of Australian copyright laws. In particular, Australia’s limited safe harbour regime — copyright exceptions that protect service providers in some circumstances — and the lack of a fair use regime have been sources of ire for Google and other technology companies.

The Deloitte report focuses on fair use. Currently, Australia has no fair use provisions — instead, copyright law has a more limited ‘fair dealing’ regime.

A 2013 report on copyright and the digital economy by the Australian Law Reform Commission (ALRC) recommend the introduction of a flexible fair use exception to copyright, arguing that fair use promotes public interest and can assist innovation.

“By appropriately limiting the ambit of copyright, exceptions can increase competition and stimulate innovation more generally, including in technologies and services that make productive use of copyright material,” the ALRC argued.

“The ALRC considers that fair use finds the right balance. It protects the interests of rights holders, so that they are rewarded and motivated to create, in part by discouraging unfair uses that harm their traditional markets. It can also stimulate innovation, particularly in markets that rights holders may not traditionally exploit.”

The introduction of fair use was also supported by the Productivity Commission in a 2016 report on Australia’s intellectual property arrangements. In its response to the PC, released in August 2017, the federal government noted the recommendation.

“There are arguments that Australia’s current exceptions for fair dealing are restrictive when compared with international counterparts and may not permit some reasonable fair uses of copyright material,” the government’s response stated.

“However, this is a complex issue and there are different approaches available to address it.”

The government committed itself to staging a public consultation in early 2018 on “more flexible copyright exceptions”.

The key difference between the current fair dealing regime and other nations’ fair use provisions is that Australian IP law offers a range of prescriptive exceptions to copyright, the new Deloitte report notes.

“In contrast, a number of other countries—most notably the United States—rely on a ‘fair use’ test which, rather than specifying particular uses, sets out principles a use must meet to be regarded as non-infringing,” the report states.

“Those principles include whether the proposed use is substantially new and creative—whether it is, in other words, genuinely ‘transformative’—and whether it might have an adverse effect on the market for the copyrighted material it proposes to use.”

A number of activities in the tech sector such as data and text mining and cloud computing — unsurprisingly all of which Google is engaged in — are taking place outside of a “clear, supportive legal framework”, the new report argues.

Similarly the allowed scope activities such as “digital remixing” is uncertain, it adds.

“The growth of the digital technologies has brought in major opportunities for the Australian economy, through the ability to generate new ideas and innovations and to distribute them to ever wider audiences,” the report concludes.

“We need a legal framework that unlocks free expression and innovation to enable these changes, which directly affect the way we live, work and play.”

The full report is available online (PDF).

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Tags copyrightintellectual property

More about Access EconomicsAustraliaAustralian Law Reform CommissionDeloitteGoogleProductivity Commission

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