The ADA supports the introduction of a broad, flexible, and technology neutral exception into the Copyright Act allowing users to undertake activities with copyright material which are fair and reasonable. An exception like this, similar to the US ‘fair use’ doctrine, would enable a much greater range of reasonable uses of material; uses which are already available to our contemporaries in many countries, including the United States, Israel, South Korea, the Philippines, Singapore and Malaysia. The effect of recent international trade agreements has been to increase the scope and strength of protection, without also introducing a flexible fairness exception to maintain the copyright balance. With this in mind, the ADA believes that it is important for Australian businesses and institutions to be able to rely on a similar broad exception enabling them to compete in an international market against businesses and institutions already able to rely on fair use.
The ADA supports a provision that will facilitate the use of orphan works by institutions and individuals in ways that are fair and reasonable. We endorse a definition of ‘orphan works’ that encompasses a range of works, including works that were never intended to be commercially exploited, have been abandoned, lost, are not commercially viable and works which have been donated to public institutions so that they may be made available for future generations. The ADA supports an orphan works exception, not a licensing mechanism, shaped by the circumstances of that use by individuals and institutions and taking into account issues of commercial exploitation.
Technological Protection Measures
Technological Protection Measures (TPMs) act as digital locks on material and are designed to prevent copyright infringement, either by preventing unauthorised access to the work, or imposing controls on copying . In the wake of the AUSFTA, the circumvention of an access control was made a separate copyright infringement under the Copyright Act. The ADA has found that this has led to a situation where users are prevented from performing legitimate activities with material purely because it contains a TPM. The ADA believes that without an adequate scheme of exceptions allowing TPM circumvention, the use of TPMs on copyright material leads to an unbalanced copyright regime that bypasses legislative protections for legitimate user activities.
Safe harbours afford some legal protection to providers of services which an end-user may, from time-to-time, use to infringe copyright, provided they follow procedures to disable access to infringing content. A recent copyright amendment extended the Australia safe harbour scheme, which now includes ISPs, universities, libraries, schools and cultural institutions. The ADA supports this extension but believes that Australia should further amend the Copyright Act to ensure that safe harbours should protect all online service providers, including IT companies.
Contracting out of copyright exceptions
The ADA believes that copyright law should prevail over contracts which purport to exclude its provisions. Contracts should be unenforceable to the extent that they are inconsistent with copyright exceptions. We believe that it is crucial that exceptions within the copyright law be preserved as a set of democratically-accountable minimum standards governing access to, and the use of, copyright material.
SCCR exceptions for education, archives and libraries
Building on the success of the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled, the ADA supports the introduction of treaties enshrining exceptions for education, archives and libraries. These treaties will emphasise the essential services provided by educational and cultural institutions to the community. The ADA believes that Governments have a role to play in protecting the functions of public institutions in the digital environment, and that national laws should promote activities within the public interest mandate of libraries, archives, and cultural and educational institutions. The ADA welcomes as a good start the Australian Government’s recent commitment to a treaty ensuring access to copyright works for the world’s visually impaired and print disabled people through the changes introduced by the Copyright Amendment (Disability Access and Other Measures) Act 2017.
Technology neutrality and consumer copying
The ADA believes that the drafting of exceptions to copyright should always be based on technological neutrality, and that the interpretation of exceptions should provide for technological developments, and ensure that Australian consumers are not at a disadvantage in the global marketplace.
Piracy and unauthorised file sharing
The ADA does not condone piracy or unauthorised file sharing. The ADA recognises the right of creators to receive remuneration for their work. However, the ADA recognises that there are a number of ways in which content industries themselves can mitigate the effects of piracy. The ADA supports the abolition of geographical restrictions to encourage the introduction into the Australian market of a wider range of digital content at reasonable prices to provide consumers with legal alternatives for accessing content. The ADA does not support any measures to combat unauthorised file sharing that result in termination of a user’s access to the internet. Similarly, the ADA does not support any measures that would hold internet service providers liable for user infringements without effective and adequate measures to protect service providers.
Treaty and Free Trade Agreement Negotiation Processes
The ADA is concerned by the move to negotiation of international IP standards outside of the World Intellectual Property Organisation and World Trade Organisation, through closed avenues without opportunity for civil society participation. Intellectual property standards encompass more than international trade, reaching into areas of domestic policy making and can have a significant impact on the activities of individual users, the educational and cultural sector, and the business sector. For this reason, We believe that treaties and free trade agreements should be negotiated with the utmost transparency, allowing users who stand to be affected by its provisions to contribute to discussions and share their concerns prior to signature of the agreement. Secretly negotiated treaties such as the Trans-Pacific Partnership (TPP) and the Anti-Counterfeiting Trade Agreement (ACTA) placed precedence on increased enforcement measures for the protection of IP over essential limitations and exceptions to IP protection that facilitate access to knowledge, education and culture.