Copyright Reform in Australia – Government says “No”

Last week, Commonwealth Attorney General, Senator George Brandis tabled in the Senate the Australian Law Reform Commission’s (ALRC) report on the Copyright Act (Act). Its key recommendation is that Australia adopt a ‘fair use’ exception.

In tabling the document, Senator Brandis told the Senate: “I remain to be persuaded that this is the best direction for Australian law, but nevertheless I will bring an open and inquiring mind to the debate”. That is called ‘framing’, the act of scoping a discussion. In this case a document that took forever to compile by a respected, mature organisation formed to make recommendations on law reform some 40 years ago was instantly dismissed as one view in a “debate” and the AG is not persuaded. Nice one George. Perhaps he was channelling Lord Eldon’s cry:

“Reform, reform, aren’t things bad enough as they are?”

Anyway, the AG did “commit to a couple of things”.

First, he said that following the changes, the Act “will be shorter, simpler and easier to use and understand”. Sounds like George tried to read the Act, a good start.

Secondly, the AG said that “the Act will be technology neutral – no more amusing references to videotapes as we find in current section 110AA”. Pity, I like that reference. I always liked the way “cinematographic films” rolled of the tongue too.

Thirdly, the AG committed to bear in mind “the broader international legal and economic context” so that “fundamental copyright principles” are not undermined. In other words, the ALRC’s recommendations for change will be ignored.

Content creators should have exclusive rights to exploit their creations but a new balance is required. The current list of exceptions is prescriptive, inflexible, restrictive and has not kept up with our digital reality. As the Act stands, online services such as ISPs, search engines and social media are stuck with a less conducive innovation and investment environment than exists in similar countries to the extent that starting a YouTube, Google or Wikipedia would breach Australian copyright law.

Worse, innovative activities like the type of sampling and remixing you see in mashups are also in breach of the Act so it gets an entire generation of children who engage in these activities used to flouting the law.

The ways we create and disseminate knowledge and culture have changed since the Act was drafted. Australians are disadvantaged if the Act is not fixed. Now is not the time for de minimis change or excuses. The Government needs to grasp the nettle on copyright and show some leadership.

In the meantime, I’m off to buy my children pirate outfits.

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