The Australian government has thrown its weight behind extending protections for users of orphan works, but stopped short of backing a fair use exception.
In a wide-ranging view of the country’s intellectual property framework, the government published its response to a number of recommendations by the Productivity Commission.
The commission published a report in December 2016, criticising the “shortcomings” in existing law and saying that current provisions were “overly broad”. It concluded that Australia’s copyright law was more favourable to owners than users.
On a number of points, the government was in agreement, such as use of orphan works, while it agreed to take steps forward on issues such as geo-blocking and fair use exceptions.
The government said it recognises the difficulties creators and cultural and collecting institutions face in using orphan works. Where a user can demonstrate it has undertaken a “diligent search” to locate the rights holder, the government will offer protection for the user.
On the issue of implementing a fair use exception put forward by the commission, the government said it will consult with the public on such a measure, although it did acknowledge the existing law is restrictive compared with other jurisdictions.
“There are arguments that Australia’s current exceptions for fair dealing are restrictive when compared with international counterparts and may not permit some reasonable fair uses of copyright material. However, this is a complex issue and there are different approaches available to address it,” the government said.
Further, the government said it would review the use of technological protection measures (TPM).
“The government will review whether new TPM exceptions should be created to prescribe particular legitimate uses of copyright material, where they fall within the requirements of that section.”
And steps are being taken to expand the safe harbour provision to all providers of online services. For the government, however, the key issue is getting the balance right between users and right owners.
“This additional consultation will ensure our safe harbour scheme will encourage growth in Australia’s digital economy and ensure a thriving and vibrant creating sector, whilst respecting the interests of copyright holders,” the government said.
Orphan works, safe harbour, copyright, geo-blocking, TPMs
