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Australia Not Sure About Creating Fair Use Defense, Will Ponder New Controls on ISPs

Friday, February 21, 2014
By Murray Griffin

Feb. 18 -- Australia's Attorney-General is unconvinced of the need for a fair use provision, as recommended by a major copyright review within the country.

But, although Attorney-General Senator George Brandis remains skeptical of the need for a fair use doctrine, he said that he does favor introducing new controls on internet service providers to prevent illegal downloading. 

Report Recommends Creation of Fair Use Defense

The Australian Law Reform Commission (ALRC), the government's main advisory body on law reform, released a report on copyright and the digital economy on Feb. 13 that recommends the introduction of a fair use defense.

“In the ALRC's view, Australia is ready for, and needs, a fair use exception now,” the report said. If such a defense were created, then up to 30 specific exceptions to copyright infringement could then be repealed and copyright disputes would then be tested by asking “the right questions,” the ALRC said. Those questions, the report said, are the following:

• Is this fair?

• Does this use unfairly harm the interests of rights holders?

• Is the use for a public benefit, and is it transformative?

The ALRC recommended a fair use provision containing an express statement that a fair use of copyright material does not infringe, a non-exhaustive list of factors to be considered in determining fairness, and a non-exhaustive list of purposes that may qualify as fair use.

On the day after the report was released Brandis told an Australian Digital Alliance conference in Canberra that he would remain open minded on the issue. But, “I remain to be persuaded that this is the best direction for Australian law,” Brandis said

Brandis had earlier told the Senate that the government “has no intention of lessening rights of content creators to protect and benefit from their intellectual property.”

Brandis made no remarks on the ALRC's Plan B option for reform--a new, more comprehensive exception regime.

After noting opposition by rights holders to a fair use provision, the ALRC report recommended this as an alternative, second-best option.

“Many of the benefits of fair use would also flow from this new fair dealing exception,” its report said. 

New ISP Controls Likely

Meanwhile, in his speech to the Alliance, Brandis said the government might consider a scheme “whereby ISPs are required to issue graduated warnings to consumers who are using websites to facilitate piracy.”

International film and television companies began lobbying for new legislative controls after a 2012 High Court ruling rejecting their arguments that an ISP had authorized copyright infringement by customers.

The High Court held that the ISP had no direct technical power to prevent customers from using BitTorrent protocol to infringe copyrights.

Brandis told the Alliance that the High Court ruling had made it clear that Section 101 of the Copyright Act of 1968, which provides that an entity authorizing infringement is liable for that infringement, could not be used to seek redress from ISPs.

Brandis said he was sympathetic to the views of those who have argued for legislative changes to deal with “the scourge of online piracy.”

“The government will be considering possible mechanisms to provide a 'legal incentive' for an internet service provider to cooperate with copyright owners in preventing infringement on their systems and networks,” he said.

Graduated warnings could be one option and another would be to give the Federal Court powers to issue third party injunctions against ISPs that will require them to take down infringing websites, he said.

To contact the reporter on this story: Murray Griffin in Melbourne at correspondents@bna.com

To contact the editor responsible for this story: Naresh Sritharan at nsritharan@bna.com


Text of fair use report available at http://www.alrc.gov.au/publications/copyright-report-122

Summary of fair use report available at http://www.alrc.gov.au/sites/default/files/pdfs/publications/summary_report_alrc_122.pdf

Text of Brandis's speech to Alliance at http://www.attorneygeneral.gov.au/Speeches/Pages/2014/14February2014-openingoftheAustralianDigitalAllianceForum.aspx

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