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The Australian government is completely ignoring an innovative legal reform on copyright

Sean Gallup/Getty Images

The federal government has released draft changes to the Copyright Act 1968, with the aim of increasing access to content.

Critics say it is a missed an opportunity to spur more innovation by including broad “fair use” provisions.

The proposed legislation makes four big changes to copyright use, largely aimed at libraries and education institutions:

  • Easing statutory copyright license provisions for educational institutions
  • Providing clear copyright access rules for “cultural institutions”
  • Changing protections around unpublished works so libraries have greater scope to provide public access
  • Giving “safe harbour” protections to search engines, universities and libraries

But the “fair use” provisions favoured by the technology sector, and proposed by the Australian Law Reform Commission, are missing.

Fair use is a legal concept that permits limited use of intellectual property without requiring permission from the copyright holder. It has become important in the digital space, especially for programmers, developers, and internet search and hosting providers. The need for more clarity in fair use spurred the creation of creative commons licenses.

A study by the American Computer and Communications Industry Association found that fair use exceptions to U.S. copyright laws were responsible for $US 4.5 trillion in revenue in 2006. Fair use allowed for the creation of companies like Google and Amazon, spurred demand for a wider array of products – fibre optic cables, new routers etc., and transformed existing business processes like communications and procurement.

“Australia’s Copyright Act is outdated and no longer fit for purpose in the digital age,” said David Cake, chairman of Electronic Frontiers Australia.

“A broad flexible fair use exception is central to copyright law in the United States, Singapore, Israel and other nations that are leading the world in digital innovation. If the government is serious about digital innovation, they need to move to implement fair use… without further delay.”

The submission from the Australian Law Reform Commission says that fair use can be considered an extension of Australia’s fair dealing exceptions. And that more clarity would spur more investment in innovation.

“Copyright exceptions need to be certain and predictable, in part so that rights holders and users have the confidence to invest in innovation,” reads the ALRC submission.

“New technologies, services and uses emerge over time—rapidly in the digital environment. Many submissions suggested that a broad, principles-based exception, which employs technology-neutral drafting such as fair use, would be more responsive to rapid technological change…”

The government is accepting feedback on its changes to the Copyright Act until the 12th of February. More details can be found on the Communications website.

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