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Re:Marks on Copyright and Trademark

The “Copy” Right in Australia

By Kathryn Purcell-Hennessy (Brisbane, Australia)


Internet use in Australia is widespread, with the Australian Bureau of Statistics reporting that in 2010-11 (the latest figures available), more than 50% of Australians aged between 15 and 34 created online content and downloaded videos, movies or music. More than 68% of Australians in those age brackets listened to music or watched videos or movies online and over 75% used the Internet for social media and online gaming in the same period. The Internet hosts increasing volumes of user-generated content, and encourages use of copyright materials in emerging ways, which may infringe copyright.

Invitation for submissions on scope of copyright

Use of the Internet presents challenges for copyright holders and Internet users. If common uses of the Internet in accordance with community expectations involve copyright infringement, the scope of copyright protection and exceptions may no longer be appropriate.

The Copyright and the Digital Economy Issues Paper 42 released by the Australian Law Reform Commission in August 2012 (“Issues Paper”) seeks comments on many aspects of copyright law in Australia, including:

1. Whether there should explicit exemptions for caching and other technical processes of the Internet, private and domestic uses of copyright material, transformative uses of copyright material;

2. To simplify and resolve problems in the fair dealing exemptions to copyright infringement in the online space;

3. Whether a broad and flexible fair use exception should be introduced and if so, whether it should replace or complement existing provisions; and

4. Whether new or amended statutory licence schemes (such as micro-licensing facilitated by collecting societies) should apply online.

Submissions in response to the Issues Paper are due November 16, 2012.

Use and infringement of copyright materials online

Three commonplace situations where copyright materials are used (and sometimes infringed) on the Internet are through sharing on social media, incorporation into user-generated content, and caching.  For example:

1. Social networking websites encourage and enable easy sharing of copyright materials, including images in Imgur and Instagram, and photographs, videos and other items on a Facebook wall or Pinterest.

2. Much user-generated content on YouTube and other websites incorporates copyright materials owned by people other than the users. For example, a video commentary on a music video will often incorporate a clip of the music video.

3. Browsing the Internet results in storage of temporary copies of accessed web pages (including copyright materials on the page) in a web cache on an Internet user’s computer. The local copy may be displayed when the “back” command within the web browser is used, rather than re-accessing the website directly through the origin server.

In Australia, it is an infringement of copyright for a person to do or authorise any other person to do anything covered by copyright protection without a licence from the copyright owner. The protected rights include reproduction, publication, performance, communication and adaptation. There are exceptions to copyright protection. The most relevant in the context of online activities are for fair dealing for criticism or review, reporting of news, or a temporary reproduction in the technical process of communication or as part of a technical process. Caching and indexing are not explicitly permitted by the Copyright Act 1968 (Cth). There is no blanket exception or licence for non-commercial dealings.

In some cases, online uses of copyright materials will serve as a substitute for, and reduce demand for the original material. A Facebook user who views an embedded video on a friend’s wall is unlikely to seek out the original video as they have already viewed it, which may reduce sales revenue or advertising revenue for the website where the video was originally hosted.

However, these uses will not necessarily be harmful even if they do infringe copyright and it is possible to imagine circumstances where such uses could even benefit the original copyright owner. A YouTube user may see a favourable review of a film or song and be encouraged to seek out and purchase the original copyright material.

Should the scope of copyright and exceptions be changed?

The sheer volume of use of copyright material online indicates that Internet users are either unaware or unconcerned that such use may infringe copyright. There is an apparent disconnect between the legal position and the community’s views.

Since 2006, the Copyright Act 1968 (Cth) has permitted time-shifting and format-shifting of copyright materials obtained legally (through purchase or broadcast). Part of the Government’s justification for introducing those changes was that ordinary Australians did not believe that recording television for watching later or converting a purchased CD to MP3 format should be illegal. The Government recognised that failure by the legislation to recognise common practices weakens the copyright legislation and leads to disrespect for copyright. These arguments would apply equally to the uses described above.

The call for submissions by the Issues Paper offers a valuable opportunity for Australians to consider whether the Copyright Act 1968 (Cth) appropriately deals with online uses of copyright materials, and whether and how the law should be amended to reflect the online community’s practice.

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