Summary of Recommendations: Digital Agenda Reforms

The Commonwealth Attorney-General has released the results of the research and analysis of the Digital Agenda and related copyright reforms undertaken by Phillips Fox. Following is a summary of the firm's recommendations.

General recommendations

Recommendation one

Survey
That the Government commissions a choice modelling survey in order to make an assessment of owner and user attitudes to the Digital Agenda Act, the effectiveness of the provisions attributed to piracy or other infringing activity and likely responses to stronger legislation. The survey may also seek to determine the extent to which consumers would be likely to change behaviours, if more strict legislation was introduced.

Education
That, having regard to the results of that survey and the other recommendations that are implemented, the Government commissions an education campaign, to raise public awareness of copyright rights and obligations generally, and those in respect of digital works or technologies in particular, with the campaign to be developed with input from owners' and users' interests, to be funded by owners' interests.

Recommendation two

That the Government commissions a longer term, independent survey or data collection of library copying and communication practices within libraries in respect of digital materials and RMI. (It may also make sense to extend that survey or data collection to copying practices in respect of 'hard copy' materials).

That the Government makes the data collected in that survey publicly available.

That the Government undertakes further consultation with interested parties in order to reach agreement on the meaning and effect of that data, and any necessary or desirable amendments to the Copyright Act, as a result.

Recommendation three

That the Government commissions a targeted education campaign, to raise awareness of copyright rights and obligations in respect of digital works or technologies by educational institutions, under Part VB of the Act (noting that it may also be useful (although outside the terms of reference of the review) to extend that campaign to all aspects of the educational statutory licence provisions), with the campaign to be developed with input from owners' and educational institution interests, to be funded jointly by them.

Libraries and archives

Recommendation four

That the definition of 'library' in sections 49(9) and 50(9) be repealed and the definition of library in section 18 remains unchanged.

That before any decision is made to amend the Act to exclude libraries within 'for profit' organisations from being able to rely on the inter-library loan scheme to provide works or parts of works to other libraries within 'for profit' organisations, those interested in the issue need to have an opportunity to address the matter specifically.

However, unless the survey data collected (see Recommendation Two below) demonstrates a compelling need for libraries within 'for profit' organisations to be able to access collections within libraries in other 'for profit' organisations in order to ensure that the inter-library loan scheme works efficiently and effectively, that section 50 be amended to exclude libraries within 'for profit' organisations from being able to rely on the inter-library loan scheme to provide works or parts of works to other libraries within 'for profit' organisations.

Recommendation five

That owners' interests, libraries and cultural institutions be given a reasonable opportunity to negotiate, agree and implement a code of practice that clarifies issues of concern in relation to copying of works under Part III, Division 5 of the Act.

Failing implementation of such a voluntary code of practice within a reasonable period of time, the Act be amended so as to make it clear that:
  1. a copy under section 49 or 50 can be made from a preservation copy of a fragile work;

  2. there is a distinction between different editions of works in determining whether a preservation copy can be made.
Subject to these amendments, no change to the requirement for destruction of copies made under sections 49 or 50 is recommended.

That section 51A be amended so as to allow libraries and archives to make available to volunteers copies of works in the collection, for the purpose of educating or training those volunteers.

That section 51A be amended to allow non-preservation copies of artistic works to be made available on a dumb terminal on the premises of the library or archive (without any ability to make a hard copy from that dumb terminal).

Recommendation six

That, following implementation of the education campaign recommended in Recommendation One and the survey recommended in Recommendation Two this issue, and the effects of digital copying by libraries and archives, and the extent to which those copies are further copied or communicated, is re-assessed and, if necessary, amendments considered.

Recommendation seven

That provided that the provision can be drafted in a technologically neutral way, and that no owners demonstrate, within the course of public consultation on the amendments, that their interests are likely to be adversely affected, sections 49 and 50 should be amended so as to allow low resolution reproductions of the whole of an artistic work to be copied and communicated, without infringing copyright.

Educational statutory licence

Recommendation eight

That all interested parties, including the Department and other government departments such as DEST, State government education departments, private school bodies, the technical and further education sector, AVCC and owners agree on and adopt a code of practice, using the existing MCEETYA guidelines as a model.

That failing agreement within a reasonable period of time, and if concerns with the practical application of the regime are still evident, Part VB be amended so as to give legislative force to the existing MCEETYA guidelines.

That the code (or failing agreement any necessary amendment) includes guidance on the meaning and operation of literary works accompanied by artistic works that explain or illustrate the literary work (see issue 8 below).

Recommendation nine

Audio-visual material on the Internet

That the Act be amended so as to clearly cover the use of audio-visual versions of copyright material from free to air broadcasts that is available subsequently on the Internet in the same way that Part VB covers audio-visual material taken directly from a free to air broadcast.
Notice requirements

That if the form of different notices under Parts VA and VB can be amended so as to allow for use of a single notice without adversely impacting on the information that an owner requires under the statutory licence, those amendments should be made.

Digital anthologies

That Part VB, Division 2A is amended to provide a digital anthology equivalent to section 135ZK, where the anthology is paginated or where otherwise a suitable percentage of the total number of words of the anthology, as a percentage of the work to be copied, can be determined.

Recommendation ten

That section 135ZMB is amended to provide that:
  1. if the digital work is paginated then the same rule that applies in section 135ZG applies;

  2. in determining the percentage calculation, the extract that is copied must be continuous.

Carrier and carriage service provider liability

Recommendation eleven

That section 36 be amended to better express the relationship between that section and section 39B to better express the interpretation of the application of section 39B that section 39B does nothing other than set out the law, as it existed prior to the enactment of the section.

Recommendation twelve

That section 36 of the Act be amended (or a new section be inserted) to:
  • Set the acceptable minimum standards or conduct in relation to notice and take down procedures (set out below) that will determine the reasonableness or otherwise of conduct, when considering issues of authorisation of infringement and provide that compliance with those procedures means that the conduct is reasonable, having regard to section 36(1A)(c).

  • Require that until an agreed industry code is implemented, the minimum standards set out in the section is the default position.

  • Require any voluntary code of conduct that may be agreed to be certified by an appropriate body, to be determined.
That section 202 of the Act be amended to include unjustified allegations of authorising infringement or requiring compliance with a notice under the amendments proposed above that is unjustified.

Recommendation thirteen

Draft amendments, amending the Act, the Federal Court Rules and the Federal Magistrates Court Rules, to implement a limited subpoena process to identify alleged infringers of copyright, where there is existing evidence of infringement be prepared.

That the Federal Privacy Commissioner undertakes public consultation on the proposed draft process in order to refine or improve that process.

That, following that public consultation and finalisation of the amendments, those amendments be introduced into the Parliament.

Following implementation of the process, the Federal Magistrates Court collects and maintains information about the number of applications made under the process, the number of subpoenas granted and any other information relevant to the efficacy or efficiency of the process.

That an applicant for a subpoena is required to also provide information to the Department on any proceeding subsequently instituted, following any application under this subpoena process, or the existing provisions under Order 15A of the Federal Court Rules (or equivalent rules of the State and Territory Supreme Courts).

That, after an appropriate period of time, the Department reviews that information with a view to improving the efficiency of the process or to ensure that the Federal Magistrates Court is adequately and appropriately resourced to cope with that process.

Recommendation fourteen

That, to the extent that it is necessary in order to clarify the liability of Service Providers acting in accordance with a court order or a Federal Magistrates Court subpoena, appropriate amendments be made to the Telecommunications Act 1997 and the National Privacy Principles.

However, before any such amendments are made, any proposal is the subject of appropriate public consultation through the office of the Federal Privacy Commissioner.

Technology and rights

Recommendation fifteen

That sections 43A and 111A of the Act be amended to align the exception with the similar exception in the Information Society Directive, by deleting the words 'of making or receiving a communication' in subsection (1) and substituting 'part of the technical process' with 'as a necessary and incidental part to any technical process'.

A consequential amendment to the heading to the section will be needed also.

That the sections be further amended by inserting a new subsection to include a definition of 'temporary reproduction' for the purposes of the section, as meaning any transient, non-persistent reproduction that is incidental to the primary purpose or act for which the work is made available and which has no independent economic significance.

Recommendation sixteen

That the educational statutory licence provisions be amended to allow an educational institution to make active caches of copyright material for the purpose a course of instruction by the educational institution, in return for a payment of equitable remuneration to the copyright owner.

Circumvention devices and services, TPMs and RMI

Recommendation seventeen

That the definition of TPM in section 10 of the Act be amended so as to accord with the interpretation favoured by Sackville J in Stevens, at first instance.

That the permitted purposes in section 116A (3) be amended so as to clearly allow any supply or use of a circumvention device or service for any use or exception allowed under the Act, including fair dealing and access to a legitimately acquired non-pirated product.

That section 116A(1) be amended so as to prohibit the use, including commercial and personal use, of a circumvention device or service to circumvent a TPM, other than for a permitted purpose.

That section 135ANA be amended so as to prohibit the personal use of a broadcast decoding device other than for a permitted purpose, being the same permitted purposes listed in section 116A(3).

Recommendation eighteen

That section 135ANA be amended so as to prohibit the personal use of a broadcast decoding device other than for a permitted purpose, being the same permitted purposes listed in section 116A(3).

Recommendation nineteen

That the integrity of the permitted purposes in section 116A (3) be retained by preventing a copyright owner from making it a condition of access to or use of a copyright work or other subject matter that a user will not use a circumvention device or service for the purpose of making a fair dealing of the work or other subject matter.

That this amendment is made irrespective of whether the recommendation to include fair dealing as a permitted purpose is accepted. However, in those circumstances, a new subsection may need to be introduced in order to give effect to the recommendation.

Recommendation twenty

That the definition of RMI in Section 10 of the Act be amended so as to expressly exclude any TPM.

For further information, please contact the author:
Matthew Hall, partner
Tel +61 2 9286 8527
matthew.hall@phillipsfox.com


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