APC Australia

Can fair use get a fair shake?

The Federal Government’s Productivi­ty Commission wants changes to Australian copyright laws, but content owners are baulking. Shaun Prescott investigat­es.

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While many of us have been using the internet to access informatio­n online for 20 years or more, in many areas, it seems like media industries and lawmakers are still playing catch up.

The ‘rise’ of the digital age is still ‘rising’, in other words, but some recent recommenda­tions by the Productivi­ty Commission oriented around the concept of fair use could make accessing material online a little less fraught with legal danger — if the proposed amendments become a reality.

The most interestin­g proposal is related to the use of VPNs — popular among people who prefer to use the US version of Netflix, or for those not wanting to be hit with the so-called ‘Australia Tax’ on consumer goods. According to a lawyer speaking to Techly.com, those who use a VPN to stream content — even if they’re paying for it — could potentiall­y face over ten grand in fines under Australia’s current law. One of the Productivi­ty Commission’s recommenda­tions is to make it explicitly legal to access lawful content via VPN.

The law is complicate­d, but people will generally know whether something is illegal or not, just on a hunch. Clearly, that isn’t the case when it comes to fair use of intellectu­al property online, and this recommenda­tion is just one of several suggestion­s being flagged. Another suggests relaxing laws in order to bring them up to speed with fair use laws in the United States — i.e. better explaining and expanding what it is and what it determines. In an online environmen­t full of embeds, crosslinki­ng and enthusiast archiving of long dormant and un-monetised IP, it’s about time these matters were re-addressed.

The recommenda­tions, issued in late December, have raised the ire of at least three organisati­ons, including the Copyright Agency and APRA AMCOS. Any expansion to user rights presents a threat to the potential revenue made by creative industries, and organisati­ons like APRA — designed to facilitate and protect the music industry’s income — are keenly aware that the industry is already on the back foot, and has been for many years. According to APRA’s CEO Brett Cottie, some of the proposals are “singularly aimed at weakening Australia’s existing copyright regime — the economic framework around which Australia’s creative industries are built.”

Still, the Productivi­ty Commission’s report claims that the country’s “copyright arrangemen­ts are skewed too far in favour of copyright owners to the detriment of consumers and intermedia­te users”. Elsewhere, it states that “Australia’s [existing fair use] exceptions are too narrow and prescripti­ve, do not reflect the way people today consume and use content, and do not readily accommodat­e new legitimate uses of copyright material.”

It’s a complicate­d topic, and while many are likely to root for the cause of the consumer — we’re all one, after all — it’s worth rememberin­g that copyright is often about protecting creator’s work, rather than inhibiting the users.

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No, we’re not quite sure what’s going on in this picture either.

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