Copyright Modernisation Consultation Response

The Copyright Modernisation Consultation has been open since March 2018, with the following Terms of Reference:

• Establish whether there is general support for any of the options for copyright reform proposed by the Productivity Commission in its report on Australia's Intellectual Property Arrangements, which relate to three areas including:
  • flexible exceptions
  • access to orphan works
  • contracting out of copyright exceptions
• Understand your views as promised by the government in its response to the Productivity Commission report
• Inform advice to the government to support copyright policy that reflects the interests of copyright creators, users and distributors.

CAUL’s Fair Use Advocacy project team have prepared a response[1] to the consultation on behalf of CAUL. The submission makes several recommendations which are included below:

1. An open-ended ‘fair use’ style copyright exception is adopted in order to guarantee Australia’s copyright system is genuinely adaptable, effective, and future-proof
2. The four fairness factors from s 113E are adopted as they represent an international standard for ‘fairness’
3. A principles-based ‘fair use’ exception be accompanied by illustrative purposes that are neither exclusive nor prescriptive, and that do not limit the uses that might be considered ‘fair’. The existing six fair dealing exceptions as well as the seven new purposes nominated in the Department’s consultation paper should be included as illustrative purposes
4. As a second preference, fair dealing exceptions be extended with seven new prescribed purposes in addition to the six existing purposes. This alternative will be supported only if a principles-based ‘fair use’ style exception is not adopted
5. s200AB is repealed in favour of a ‘fair use’ style exception
6. The existing libraries and archives exceptions, namely ss49, 50 and 110A, are modernised in line with the recent amendments to the preservation, administration and research exceptions 
7. A ‘fair use’ style illustrative purpose for libraries and archives is adopted to allow flexibility and innovation in the use of collections based upon an established test for fairness
   1. In addition, CAUL supports the introduction of a specific standalone statutory exception to cover operational and non-commercial uses of copyright material by libraries and archives for core services
8. All exceptions in the Copyright Act are protected from contractual override
9. A ‘fair use’ style illustrative purpose for orphan works is adopted to allow flexibility in the use of orphan works based upon an established test for fairness
   1. In addition, CAUL supports the introduction of a specific standalone statutory exception to cover non-commercial uses of orphan works by educational institutions, libraries and archives, and key cultural institutions so that they are able to fulfil their public mission to make works accessible

[1] http://www.caul.edu.au/sites/default/files/documents/gov-inqu/copyright-modernisation2018response.docx