Reform must not ‘come at the expense of our creative industries’, says attorney general

This article is more than 6 years old

This article is more than 6 years old

The attorney general, George Brandis, says he “remains to be persuaded” that Australia needs a fair use clause in its copyright law.

A report from the Australian Law Reform Commission, tabled in the Senate on Thursday, argues that a flexible fair use law would assist innovation, protect copyright holders and promote the public interest.

“I am convinced that we can do much to improve how copyright works in this country,” Brandis told a copyright forum in Canberra on Friday, but he warned that reform must not “come at the expense of our creative industries”.

The current law provides fair dealing exceptions for specific practices, such as copying CDs to a computer or performing a play in a classroom.

Intellectual property specialist Kimberlee Weatherall said this approach failed to keep pace with rapid technological change.

“At the moment, unless there’s a specific exception that covers your activity, then it’s just an infringement,” Weatherall said. “If you wanted to start a search engine in Australia, it would be illegal, because it would inevitably involve copyright law infringement,” she said.

A fair use law would replace these specified exceptions with a standard test applying across different technologies, essentially asking: is this use of someone’s intellectual property fair?

“In order to determine if something is fair, you determine the nature of the material being used, and the way it’s being used,” Weatherall said. “Is it being used for commercial purposes? Is it small or large scale? What is the impact on the copyright owner’s market? Is it being used in competition, or is someone quoting the material in order to illustrate it in an educational setting?”

The commission’s report, the result of an 18-month inquiry into whether federal copyright law was sufficiently adapted to the digital era, concluded that “Australia is ready for, and needs, a fair use exception now”.

But the attorney general said the proposed test lacked certainty, and risked artists and creators “being cheated of the fair compensation for their creativity, which is their due”.

Brandis also signaled action against internet piracy, suggesting he would look to internet service providers to do more to stop consumers illegally downloading films and music.

In 2012, the high court ruled against a group of 34 international and Australian companies, including Warner Bros, Disney and the Seven Network, who alleged the internet provider iiNet breached their copyright when its customers downloaded movies and television programs.

“The government will be considering possible mechanisms to provide a legal incentive for an internet service provider to co-operate with copyright owners in preventing infringement on their systems and networks,” Brandis told the copyright forum. “This may include looking carefully at the merits of a scheme whereby ISPs are required to issue graduated warnings to consumers who are using websites to facilitate piracy.”

He said his preference would be for the industry to police itself, rather than have the government impose potentially burdensome regulations.