Monday, 17 August 2015 13:11

EFA cautious on ‘fair use’ review, wants halt on ISP copyright code Featured

EFA cautious on ‘fair use’ review, wants halt on ISP copyright code Image courtesy of Stuart Miles,

Non-profit digital rights group Electronic Frontiers Australia has given qualified support to the government’s announcement it is looking at the benefits that might come from the introduction of a broad, flexible “fair use exception” in Australian copyright law.

But, despite its cautious support, the EFA has expressed scepticism, questioning the Attorney-General’s commitment to positive copyright reform following his announcement last week that he has requested an analysis of the costs and benefits involved in the introduction of a flexible fair use exception.

The EFA is also critical of the length of time it has taken the government – specifically the Attorney - to act on copyright law.

"While it’s welcome to finally see some action from the Attorney-General on fair use, it's disappointing that it’s taken 20 long months to get to this point,” EFA executive director Jon Lawrence said.

“Given that the Attorney has in the interim found time to expedite as yet unused legislation targeted at copyright infringement - the website-blocking bill which became law in June - it's difficult not to be sceptical about the strength of his commitment to positive copyright reform.

“This analysis could have occurred at any time in the last 18 months. I’m therefore afraid that this announcement may be little more than a stalling tactic to ensure there is no meaningful movement towards reform prior to the next federal election."

Lawrence did say, however, that the EFA strongly supports the introduction of a broad, flexible fair use exception which he says would introduce “much-needed flexibility into Australian copyright law.”

According to Lawrence, Australian copyright law is currently outdated not just in relation to technology but also in terms of “societal norms”.

“The prevalence of sharing across social media, the importance of remixing in popular culture, and the growth of cloud computing are just three areas where a fair use exception will help to ensure that Australian copyright law can once again become fit for purpose.”

On the issue of legal or illegal downloading of content from the Internet, and breaching of copyright laws, the EFA says the introduction of a number of new Streaming Video On Demand (SVOD) services in Australia in the past year has resulted in “extraordinarily rapid growth” in the number of Australian households with a 'paid' content service.

And, it cites Roy Morgan research figures showing that the number of Australian households paying for such a service has grown by a massive 30% since the start of 2015.

According to Lawrence, this explosive growth is addressing pent-up demand from Australian consumers for competitively-priced and timely access to quality legal content.

“It confirms what EFA and many other informed observers have long asserted - that Australians are only too happy to pay for content when it's readily available at the right time and at the right price.”

Lawrence points out that the government’s own research shows that many Australians that engage in online copyright infringement do so because they have no legal avenue for accessing their chosen content.

“As availability to content is increasing, the rate of online copyright infringement is therefore likely to be falling,” Lawrence asserts.

“Meanwhile, Internet Service Providers (ISPs) are struggling with the implementation of the government’s mandatory data retention regime and therefore may not be in a position to take on additional regulatory burdens at this time. This is particularly true for smaller, regional providers, some of whom may be facing existential challenges from the regulatory burdens imposed by this government.”

In the face of what he describes as “the historic lack of timely access to quality content for Australian consumers”, Lawrence called for the government to halt the implementation of an ISP copyright code “to ensure that it is not further burdening the industry with additional unnecessary regulation.”

“ISPs are already reeling from the impact of the government's grossly-inadequate preparation in relation to the new data retention obligations, and may have to soon deal with the impact of the website-blocking legislation. This government needs to stop adding layer upon layer of burdensome regulation on an industry which needs space to innovate to meet the current and future needs of Australian businesses and consumers."

With its call for a halt to the process of implementing an ISP copyright code, the EFA says work on the code should not proceed until the implementation of the new mandatory data retention obligations has been concluded and, not until the government has conducted a detailed cost-benefit analysis to ensure that it is not an “unnecessary additional regulatory burden that will further harm competition in the sector and result in higher connectivity charges for Australians.”

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Peter Dinham

Peter Dinham - retired in 2020. He is a veteran journalist and corporate communications consultant. He has worked as a journalist in all forms of media – newspapers/magazines, radio, television, press agency and now, online – including with the Canberra Times, The Examiner (Tasmania), the ABC and AAP-Reuters. As a freelance journalist he also had articles published in Australian and overseas magazines. He worked in the corporate communications/public relations sector, in-house with an airline, and as a senior executive in Australia of the world’s largest communications consultancy, Burson-Marsteller. He also ran his own communications consultancy and was a co-founder in Australia of the global photographic agency, the Image Bank (now Getty Images).

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