Back in May, we wrote about a draft report by Australia's Productivity Commission on how Australia's copyright and patent laws could be reformed to foster domestic production and innovation. That report is back in the news this week, after it was
released in its final form , and a consultation seeking public feedback was opened.
The most important proposed change would introduce a fair use right into Australia's copyright law. Currently Australia's copyright flexibilities
are narrowly pre-defined; for example, it is lawful for Australians to backup their computer software and to digitize their video tapes (remember those?), though there is still no similar exception allowing them to back up their iTunes downloads or to
rip copies of their DVDs. This approach has made Australia's copyright law a complicated and anachronistic mess.
By swapping these kinds of narrow exceptions out for a broad and flexible fair use right, Australians would be
permitted to make any use of a copyright work that is fair, taking into account the purpose of the use, the nature of the work, the amount copied and the effect on the potential market value of the work. This would make the day to day operation of
copyright law much simpler and more adaptable to changes in society and technology. It will also stimulate the development of innovative new products and services that rely on fair use.
A second important change proposed in the
Productivity Commission report is to guarantee Australians' right to circumvent geoblocks that prevent them from accessing videos, music, books and software from overseas online stores or streaming services. These geoblocks mean that Australians pay more
money for the same products, or are forced to wait for longer for their local release. The result is that some users resort to piracy. Clarifying that circumventing these geoblocks is lawful is therefore likely to create a win for users and copyright
Although the Productivity Commission makes many more recommendations, we'll stop at one more--that universities, schools, and libraries should receive the benefit of the same safe harbor that protects ISPs from
copyright liability for infringements by their users. This reform is a sensible one, which would bring Australia into line with U.S. and European law, and with our Manila Principles on Intermediary Liability . In practice, it means for example that if a
student uploads a copyright-infringing file to their school's website, the school won't be held responsible until they are notified of the infringement and refuse to remove the file.
It's predictable that copyright monopolists are
up in arms about the proposed changes, dragging out the usual doomsday scenarios about job losses , tear-jerking celebrity pitches , and even some frankly bizarre similes . And the worst thing is that these tactics, which have previously been successful
in obstructing reform, may be so again . Yet the facts are difficult to argue with; Australians pay more to access copyright works lawfully, suffer tight constraints on what they can do with works to which they do have access, and risk legal liability
for acts that harm nobody. The time for reform is long overdue.
Further comments on the Productivity Commission final report are due by Valentine's Day 2017 . If the government resists the monopolists' uproar and legislates to
implement the Commission's recommendations, that will be the love letter that Australian users and creators have been waiting for.