Legal briefing – Government consults on Copyright Amendment (Access Reform) Bill 2021

Publication date: 24 February 2022, reference number LB 120

The Government is undertaking a public consultation on the Exposure Draft of the Copyright Amendment (Access Reform) Bill 2021 (Cth). It has extended the deadline for providing formal submissions on the Discussion Paper and Exposure Draft to 5 pm AEDT, Friday 25 February 2022.

Overview

The Government has released an Exposure Draft of the Bill and the Discussion Paper so that interested individuals and organisations can have their say on these proposed reforms. The proposed reforms follow extensive stakeholder consultation as part of a number of previous reviews into Australia’s copyright laws including the Government’s 2018 Copyright modernisation consultation and the Productivity Commission’s 2016 inquiry into Australia’s IP Arrangements.

The Exposure Draft proposes to simplify and update ‘access’ provisions in the Copyright Act 1968 (Copyright Act) in the following key areas:

• Limiting remedies for use of orphan works
• Including a new ‘fair dealing’ exception for non-commercial quotation
• Simplifying exceptions for libraries and archives
• Updating exceptions for educational institutions
• Streamlining the government statutory licensing scheme.

The proposed reforms seek to provide reasonable and practical measures that reflect contemporary use of copyright material in the public interest, while maintaining appropriate protections and incentives for content creators.

As part of this process, the Government is also seeking feedback on its review of the exceptions for circumventing technological protection measure (TPM) in s 40 of the Copyright Regulations 2017.

The key areas for reform

Limiting remedies for use of ‘orphan works’

The Exposure Draft includes a scheme allowing orphan works (where the copyright owner cannot be found) to be used, if a reasonably diligent search has occurred. The search must be conducted within a reasonable time before using the material and the author must be attributed where possible. This scheme will cover all types of copyright material (for example, text-based works and videos) and use, although commercial use and wider access may require greater efforts to satisfy the ‘reasonably diligent’ search requirement.

If a copyright owner emerges after the material has been used, the scheme will exclude compensation for past use of the work. The copyright owner may seek terms for ongoing use of their copyright material.

New ‘fair dealing’ exception for non-commercial quotation

The Exposure Draft includes a new fair dealing exception permitting quotation from published copyright material for non-commercial purposes or where the quotation is of immaterial commercial value and proper attribution is made.

The quotation may be made by a library or an archives (including a museum, gallery or cultural institution), a body administering an educational institution or the Commonwealth or a state for their own purposes or by a person or organisation for research purposes. The use of the quotation must be ‘fair’.

Stakeholder views are sought on extending the exception to unpublished copyright material.

Exceptions for libraries and archives (including galleries, museums and other key cultural institutions)

Previous copyright reviews have considered that current exceptions permitting access to copyright materials held by libraries and archives are outdated and too prescriptive. Provisions apply unequally to different copyright materials and create a regulatory burden that is unnecessary and inefficient in the digital environment.

The Exposure Draft proposes to extend current provisions in the Copyright Act that allow libraries and archives to make certain copyright material available online at their premises. This would apply to all types of copyright material and for remote online access, subject to reasonable protections for the commercial interests of copyright owners.

Exceptions for educational institutions

The online learning environment imposed by COVID-19 highlighted uncertainty about how current copyright exceptions in s 28 of the Copyright Act apply to allow performance and communication of material in class in online and in remote settings.

The Exposure Draft extends these exceptions to all types of copyright material to support digital and face-to-face learning. It proposes to permit educational institutions to make recorded lessons containing copyright content available online temporarily for intended students’ use. These updates seek to be material and technology neutral, thereby supporting remote and online learning.

The government statutory licensing scheme

The Exposure Draft streamlines the current government statutory licensing scheme. It extends the special arrangements for payment of remuneration in s 183A beyond ‘copying’ of copyright material so that ‘communication to the public’ of this material (for example, putting the material online) is also covered.

It also clarifies that governments can rely on other licences (including implied licences) and exceptions. A new exception will also be introduced to permit governments to use correspondence and other copyright material provided to them for reasonable non-commercial purposes.