At long last and just in time for Christmas, the Communications Branch of the Department of Infrastructure, Transport, Regional Development and Communications has published the long awaited exposure draft of the Copyright Amendment (Access Reform) Bill 2021 and – a bit of a surprise – a Review of Technological Protection Measures Exceptions.

To quote from the “have your say” page, the exposure draft amendment bill includes 5 main reform measures:

• Schedule 1—Limitation on remedies for use of orphan works
• Schedule 2—New fair dealing exception for non-commercial quotation
• Schedule 3—Update and clarify libraries and archives exceptions
• Schedule 4—Update and restore education exceptions
• Schedule 5—Streamline the government statutory licensing scheme.

There are also five, 5!, schedules of “additional minor and technical amendments”!

What follows is a very rough and ready summary of a couple of “bits”.

Quotations

The exposure draft posits a new fair dealing defense in respect of public copyright material for the purposes of either non-commercial quotation or quotation for a commercial purpose in relation to a product or service if the quotation is immaterial to the value of that product or service .

The defense would be available only to libraries, archives, educational institutions, the Commonwealth or a State, or someone authorized by them, or a person or organization for the purpose of research.

There are also other conditions.

The discussion paper includes some examples of things which might fall within or without the defense.

Orphan Works

The exposure draft would introduce a new defense to infringement where someone reproduces etc. copyright material after a reasonably diligent search has failed to identify the copyright owner or, if the owner is identified, they cannot be contacted.

If the author is known, he or she or they must also be identified in the reproduction etc. where that is reasonably practicable.

Then, if the copyright owner pops up, either the owner or the user can apply to the Copyright Tribunal for orders to fix the terms of use. The Tribunal may make orders only to the extent it considers them reasonable.

TPM Reviews

Under the Australia-US Free Trade Agreement, Australia is required to review its laws relating to technological protection measures every four years.

Apparently, the last review was in 2017. So it’s time for another one.

The discussion paper says the review is to look at whether the existing exceptions are fit for purpose, need to be repeated or modified and whether new exceptions are required.

If you want a new exception, s 249 sets out the criteria that need to be satisfied before the Minister can implement it. They include provision of credible evidence about the matters set out in that provision.

If you are moved to provide submissions, they should be sent in by 11 February 2022.

Have your say page

Exposure draft Copyright Amendment (Access Reform) Bill (pdf)

Discussion paper (pdf)

There are also Word versions of the exposure draft bill and the discussion paper available via the Have your say page.

Related