Speech by the Federal Attorney-General, The Hon. Daryl Williams AM QC MP
Australian Key Centre for Cultural and Media Policy Copyright Futures
Seminar
Copyright Reform: into the digital future
9.15 am, 12 February 1999, Minter Ellison offices,
Level 22, Waterfront Place, 1 Eagle Street, Brisbane
Introduction
- Thank you for the opportunity to join you this morning to speak
about the very interesting and important challenge of effectively
extending copyright law into the digital environment. It is my pleasure
to address you as I know that many of you have a keen interest in the
Government's initiatives to meet this challenge. I am grateful to
Julian Thomas and Brad Sherman from the Australian Key Centre for
Cultural and Media Policy for organising this seminar today. I would
also like to thank the seminar's sponsors: the Intellectual Property
Society of Australia and New Zealand, Griffith University, and Minter
Ellison Lawyers.
- Given the rapid development of information technology the digital
future is already upon us. We are not so much looking into the digital
future, but living in the digital present. Internet usage is
dramatically increasing, the growth of the Australian Internet consumer
market is unprecedented, and a host of new industries have suddenly been
created.
- This extraordinary pace of development has the potential to disrupt
the delicate balance which has existed between the rights of copyright
owners and the rights of users of copyright materials.
- The first of two areas on the future of copyright which I will
address today is the work of the Copyright Law Review Committee. As you
know, the Committee is a specialist advisory body which reports to me on
specific copyright law matters referred to it from time to time.
- It gives me great pleasure to announce the release of the second
part of the Committee's report on the Simplification of the Copyright
Act. Part 2 of the Committee's report completes its inquiry into the
simplification of the Copyright Act. This is the first comprehensive
review of Australian copyright law since 1959. Part 2 of the report
focuses on simplifying the rights and categories of material protected
by copyright. It also provides a number of models which describe how
the rights and categories can be reformed to accommodate future changes
in technology.
- Past reports of the Committee have shed valuable light on the
process of copyright reform in response to new technology. Examples
include the Copyright Law Committee's 1976 report on reprographic
reproduction, and more recently, the Copyright Law Review Committee's
1995 report on Computer Software Protection. I am sure that both Parts
1 and 2 of the Simplification Report will prove to be no different.
- I note that a member of the Committee whilst it conducted its
simplification reference, Associate Professor Andrew Christie, is a
guest speaker at today's seminar.
- The second part of my speech focuses upon the implementation of a
comprehensive and technology-neutral set of copyright reforms. As many
of you know, on 30 April last year, Senator Alston and I announced the
Government's decision to make a number of important reforms to the
Copyright Act. These reforms are known as the Digital Agenda copyright
reforms, and will be implemented in the Copyright Amendment (Digital
Agenda) Bill.
- The Digital Agenda reforms represent the Government's main
initiative in meeting the challenges to copyright posed by the digital
environment, particularly the Internet. The central aim of the reforms
is to ensure that copyright law continues to promote creative endeavour
and, at the same time, allow reasonable access to copyright material on
the Internet and through new communications technology.
- The implementation of the Digital Agenda reforms is only one of a
number of initiatives which form part of the Government's commitment to
the information economy. The Government believes that successfully
developing the information economy in Australia is vital to our
continued economic prosperity.
- Other initiatives include the exposure draft of the Electronic
Transactions Bill, which I released last month for public comment. The
Bill is a blueprint for the Commonwealth's national uniform, legislative
scheme for electronic commerce.
- The establishment of the National Office for the Information
Economy and the Ministerial Council for the Information Economy (of
which I am a member) also demonstrates that the Government is committing
considerable resources to developing the information economy in
Australia and ensuring a coordinated whole of government approach at
the highest level. Part 2 of the Copyright Law Review Committee's
Simplification Report
- The release of Part 2 of the Copyright Law Review Committee's
report on the Simplification of the Copyright Act is another part of
the Government's commitment to facilitating growth of the information
economy by ensuring that Australia's laws meet the challenges of new
technologies.
- I am very pleased with Part 2 of the report, and would like to
congratulate the Committee for its efforts in completing its
simplification reference. Part 2 of the report, even more so than
has been the experience with Part 1, will stimulate healthy debate
as to how the Copyright Act should be framed in the next millennium.
- I will make a few general observations on Part 2 of the report
and describe its key elements.
- Many of you would probably agree that the task of simplifying the
Copyright Act is a daunting one. Part 2 of the Committee's report
proposes an approach to simplify the protected categories of subject
matter and the exclusive rights of copyright owners. Within this
audience there would be, no doubt, a diverse range of views about how
that task might be accomplished, and how far it would be desirable
to go in the pursuit of the goal of simplification.
- I also acknowledge, as the Committee recognised, that an essential
part of the simplification process is to make the Copyright Act
technology-neutral so as to accommodate future changes in technology.
I note that past experience has clearly shown that a technology-specific
Act results in undue complexity and the need for regular legislative
amendment.
- The recommendations in Part 2 are supported by a majority of the
Committee comprising the Chairman and four Committee members. The
majority recommends that the Act be re-structured to implement a number
of principles in relation to the categorisation of subject matter and
exclusive rights. The implementation of these principles is designed to
both simplify the Act and provide it with a much greater degree of
technology neutrality.
- The report sets out a model described as the "technology-neutral"
approach which the majority indicates is one way in which the principles
might be implemented. The technology-neutral approach refers to
inclusively defined categories of subject matter and exclusive rights,
and complements the approach described in Part 1 of the report dealing
with the simplification of the exceptions in the Act.
- Under the "technology-neutral" approach the majority suggests
comprehensive amendments to the Act. The current eight categories of
protected subject matter, which include literary, dramatic, musical
and artistic works, films, and sound recordings, would be replaced by
two broadly and inclusively defined categories, "creations" and
"productions". Different levels of protection would apply to these
two new categories. The current eight exclusive economic rights, which
include the right to reproduce, publish, perform, broadcast, copy, and
adapt, would be replaced by two broadly and inclusively defined economic
rights, the "right of reproduction" and the "right of dissemination to
the public".
- The Report also outlines three alternative approaches to
simplification considered, but not recommended, by the Committee.
- The majority also addresses the issue of moral rights and
recommends that both a right of attribution and a right of integrity
should be introduced, as proposed by the Government in the Copyright
Amendment Bill 1997. I note that it remains the Government's intention
to implement these moral rights into our law.
- Part 2 of the report is now available from Government Information
Shops, and is also available in electronic form on the Committee's web
site at <http://www.agps.gov.au/clrc/>.
- I expect that my Department will commence consulting with copyright
interest groups on Part 2 of the report later this year. I look forward
to receiving your comments on the Committee's recommendations. Digital
Agenda Copyright Reforms
- The Government's main initiative in addressing Australia's
copyright future is the package of Digital Agenda copyright reforms.
- As many of you would know, the reforms are based largely on
proposals in the discussion paper, Copyright Reform and the Digital
Agenda, which was released in July of 1997. That discussion paper
received widespread industry support and was the subject of extensive
consultation with copyright interests.
- The Digital Agenda reforms are consistent with the international
standards described in the World Intellectual Property Organisation
(WIPO) Copyright Treaty and WIPO Performances and Phonograms Treaty.
The United States recently implemented the standards provided in the
WIPO treaties when it enacted the Digital Millennium Copyright
Act on 28 October last year.
- The Digital Agenda reforms will substantially improve protection
for many important industries on the Internet. Such protection is
needed as a result of advances in communications technology which have
exposed gaps in copyright protection in cyberspace.
- The reforms will also provide greater certainty and consistency
in copyright rights and liabilities.
- There are five key elements that will be implemented in the
Copyright Amendment (Digital Agenda) Bill. Right of communication
to the public
- The centrepiece of the Digital Agenda Bill will be a new
technology-neutral right of communication to the public. The new right
will subsist as an exclusive right in literary, dramatic, musical, and
artistic works, sound recordings, films and broadcasts. The new right
will replace and extend the existing technology-specific broadcasting
right which currently only applies to "wireless" broadcasts. The
proposed new right of communication to the public will also replace the
limited cable diffusion right which was the subject of much contention
in the High Court case of APRA v Telstra.
- The right of communication to the public will also encompass the
making available of copyright material on-line, so as to provide
protection to copyright material made available through on-demand,
interactive transmissions. An example of the exercise of this right
would be the uploading of copyright material onto a server which was
connected to the Internet.
- The new right of communication to the public will improve the
protection of copyright material on the Internet and cable pay TV.
Being a technology-neutral right, it will also mean that the development
of new technologies such as "Web TV" or "Internet broadcasting" will not
require repeated technology-specific changes to the Copyright Act.
Exceptions
- The new legislation will also include an important package of
exceptions to the new right of communication to the public.
- As far as possible, the proposed exceptions will replicate the
balance struck between the rights of owners and the rights of users that
has applied in the print environment. Extending this balance into the
digital environment was expressly recognised in the WIPO Copyright
Treaty of 1996.
- The existing exceptions for fair dealing will apply to the new
right of communication to the public.
- The new legislation will include exceptions for temporary copies
made in the course of technical processes of transmission and browsing
on the Internet.
- The new legislation will also extend the existing exceptions for
libraries and archives, and the existing exceptions and licences for
educational institutions, to enable them to provide reasonable access to
copyright material on-line. New Enforcement Measures
- The Government is also keenly aware that enforcing copyright in the
digital environment is a major concern for copyright owners. To address
this, the Digital Agenda Bill will provide two new enforcement measures,
one of which would ban the making of and commercial dealings in
circumvention devices. Such devices include unauthorised decoders used
to receive pay TV signals or software to break password protection of
material on the Internet.
- The legislation will also provide for a ban on the intentional
removal or alteration of rights management information that is
electronically attached to copyright material.
- These measures are critical to making the new right of
communication to the public and existing rights practically enforceable
against pirate activity. Carrier and ISP Liability
- In response to the Discussion Paper on the Digital Agenda, carriers
and ISPs expressed considerable concern about the uncertainty of the
circumstances in which they could be liable for copyright infringements
by their customers.
- As a result of these concerns, the Digital Agenda Bill will make
it clear that carriers and ISPs will not be liable for copyright
infringements on their customers' web sites by reason only of the fact
that the infringements occurred on the facilities of the carrier or ISP.
- Further, an inclusive list of factors will be distilled from the
current case law on authorisation and included in legislative form to
assist in determining whether the authorisation of an infringement has
occurred. Computer Software Protection
- As computer software is such an integral component of the
information economy, the Government has also been giving attention to
the protection of software under the Copyright Act.
- The Government has based many of the reforms on the recommendations
of the Copyright Law Review Committee in its 1995 report on Computer
Software Protection. I would like to highlight several of the
recommendations which we have adopted. Clarification of interpretation
of terms - "computer program" and "reproduction"
- The definition of "computer program" will be simplified.
- The amendments will also affirm that a "reproduction" of a computer
program in object code includes a version resulting from decompilation
and, in the case of a program in source code, a version resulting from
compilation. Another proposed amendment affirms that a digitised
version of any work is a reproduction of the work in its original form.
- These amendments seek to overcome any doubt arising from the lack
of visual similarity between a version of a computer program or other
work in human readable form and a digital version. Backing-up computer
programs and systems
- Another change will be in relation to backing-up computer programs
and systems. Unlike other literary works, computer programs are made to
be used in the operation of a machine, that is, the computer. As such
they are at greater risk of being accidentally destroyed or damaged in
the course of being used than, say, a book is in the course of being
read.
- This is already recognised under the Copyright Act which allows the
making of a back-up copy of a computer program, subject to conditions.
The exception however is limited, and does not accurately reflect the
making and use of back-up copies in practice. The Committee
recommended, and the Government has agreed, that the back up copying
exception should be extended to address this concern.
- Another amendment will expressly recognise the almost universal
practice of regular backing-up of the entire contents of office computer
systems. Exposure Draft of Copyright Amendment (Digital Agenda) Bill
- The Government is committed to implementing the Digital Agenda
reforms as soon as possible. It is the Government's highest copyright
priority. The keenly awaited exposure draft Copyright Amendment
(Digital Agenda) Bill is in the process of being finalised, and I expect
that it will be released for public comment within the coming weeks.
Accompanying the release of the exposure draft will be commentary
materials which will describe some of the policy background to, and the
operation of, the various technical provisions provided in the Bill.
- My Department, in conjunction with the Department of
Communications, Information Technology and the Arts, will consult with
affected interests on the exposure draft legislation. Following these
consultations, the Digital Agenda Bill will be introduced into
Parliament.
- In the course of consultation on the exposure Bill, the Government
also intends considering the relevant recommendations of Part 1 of the
report of the Copyright Law Review Committee on the Simplification of
the Copyright Act. As I mentioned earlier, Part 1 examines the
exceptions to the exclusive rights of copyright owners. Part 2 of the
Committee's report will be the subject of separate consideration.
- I am sure that effective consultation will continue in relation to
the exposure draft legislation, and I look forward to receiving your
valuable comments. Conclusion
- The release today of Part 2 of the Copyright Law Review Committee's
report on the Simplification of the Copyright Act is timely, as it is on
the very topic of your deliberations, the future of copyright.
- The recommendations and options described by the Committee provide
a useful platform upon which the Government can consult with copyright
interest groups on the simplification of the Copyright Act, and how it
can be amended to accommodate future changes in technology.
- The challenge of effectively extending the law of copyright into
the digital environment has been enthusiastically adopted by the
Government. The implementation of the Digital Agenda reforms will
ensure that copyright law continues to promote creative endeavour and,
at the same time, allow reasonable access to copyright material on the
Internet and other new communications technology.
- The Digital Agenda reforms will play an important role in ensuring
the successful development of the information economy which is vital to
Australia's continued economic prosperity and creative endeavours.
- I wish you well in your deliberations today on the future of
Australia's copyright law.
Posted by:
Bruce Couchman
<couchman.bruce[_at_]ic.gc.ca>
Received on Fri Feb 19 1999 - 15:39:43 GMT