A short consultation period, so prepare now 4 min read
The federal Attorney-General's Department recently announced it is conducting a review of copyright enforcement in Australia.
On 9 December 2022, it published an Issues Paper and called for submissions from interested parties as part of its consultation process. Submissions are due by 7 March 2023.
In this Insight, we highlight the main areas of focus for the review and outline some key issues your business may wish to address when making any submissions.
- Copyright is a bundle of rights that can protect many different types of materials across all sectors and industries. However, copyright is only as valuable as it is able to be enforced against infringers, whether by litigation or other mechanisms.
- The Review will consider existing and emerging issues with the copyright enforcement regime in Australia, with a particular focus, it seems, on the role of digital platforms. These range from piracy websites to online marketplaces, social media platforms and other user-generated content platforms that are designed to encourage and facilitate the posting of lawful content (but which users may nevertheless abuse).
- The Review is relevant for everybody involved in the creation, use and online hosting of copyright materials, including copyright owners, operators of online platforms and global players operating in Australia. The Review presents a useful opportunity for them to voice their ideas, concerns and experiences in relation to the current copyright enforcement regime.
- As with all government inquiries, this Review may potentially result in significant changes to copyright law and procedure, including in relation to authorisation liability and the safe harbour and website-blocking regimes in the Copyright Act 1968 (Cth).
The Review has three stated purposes:
- To understand current and emerging enforcement priorities and challenges.
- To gather views from all parts of the copyright system on whether the copyright enforcement regime in Australia remains relevant, effective and proportionate.
- To seek feedback on whether there is any need to supplement or strengthen existing enforcement mechanisms, and if so, how this could be done without imposing unreasonable administrative or economic burdens.
As a framework for providing feedback, the Issues Paper sets out 14 questions for interested parties to consider (although depending on the interested party, not all of the questions will necessarily be relevant).
Broadly, the Issues Paper covers the following four topics:
Current copyright infringement challenges
While the Issues Paper refers to copyright enforcement issues generally, it seems to focus on the challenges that have arisen due to the growing use of content online and 'the increasing role and influence of digital platforms'. The Issues Paper acknowledges that these challenges may affect not just copyright owners, but the operators of online platforms as well.
The Review seeks interested parties' views on the enforcement challenges they are facing, any trends in infringement or enforcement they are noticing, and what they are seeing as the drivers, scale and economic impact of copyright infringement.
Effectiveness of industry-led enforcement mechanisms
The Issues Paper points to several measures that industry participants commonly adopt, including:
- notice-and-takedown procedures that copyright owners can use;
- proactive removal of potentially infringing content without the need for a takedown notice or other complaint from the copyright owner;
- automated content screening tools; and
- commercial licensing arrangements,
some of which are influenced or inspired by overseas legislation, such as the Digital Millennium Copyright Act (or DMCA) in the United States.
The Review seeks interested parties' views on the appropriateness, accessibility and costs of existing industry-led enforcement mechanisms, and ways in which industry participants could work together to more effectively and efficiently prevent or address copyright infringement.
Effectiveness of statute-based enforcement mechanisms
The Issues Paper outlines the various statutory mechanisms that currently exist, including:
- the website-blocking regime in section 115A of the Copyright Act, which only applies to 'online locations outside Australia' (ie foreign websites);
- the safe harbour regime in Part V Division 2AA of the Copyright Act which, unlike in the United States, only protects certain specific classes of service providers (such as internet service providers) and not online service providers more generally;
- the parts of the Copyright Act that impose liability on those who 'authorise' copyright infringement, although the statutory criteria for what constitutes authorisation is not exhaustive and not always easy to apply; and
- Part V Division 2A of the Copyright Act, which entitles copyright owners to take legal action against users who circumvent technological protections that are designed to prevent copyright infringement, such as IP-blocking and encryption.
The Review seeks interested parties' views on the effectiveness and efficiency of current statute-based enforcement mechanisms, and how they could be improved.
Effectiveness of the legal system
The Issues Paper discusses the ways in which copyright owners can use the Australian legal system to enforce their rights, including by:
- commencing proceedings in the Federal Court of Australia or the Federal Circuit and Family Court; and
- lodging a formal Notice of Objection requesting that the Australian Border Force seize imported goods that are suspected of infringing copyright.
The Issues Paper explores legal mechanisms in other jurisdictions that are less expensive and time-consuming than Federal Court litigation, such as the 'copyright small claims process' in the United States Copyright Claims Board.
The Review seeks interested parties' views on the suitability and effectiveness of the enforcement mechanisms that are currently available within the legal system, and how they could be improved.
The Review is a valuable opportunity for anybody who creates, owns, uses or hosts copyright material to be part of the conversation in relation to several very important parts of Australian copyright law.
Given the relatively short consultation period, part of which spans the holiday break over December 2022 and January 2023, now is the time to engage with your internal stakeholders and any industry representatives to gather evidence, formulate a strategy and ensure your business' interests are properly considered as part of the Review.