The ALRC Report on Copyright and the Digital Economy (and me)

The Australian Law Reform Commission has finally published its long-awaited Report. This is an impressive and important report, and I am proud that I had some opportunity to contribute to it in a short submission that I made last summer. In my submission I referred to two issues that I have discussed in two recent papers: fair use, and orphan works. Therefore, I was very pleased that the Commission’s recommendations with respect of those two issues are consistent with my views. Since the Commission received more than 1000 submissions, I was even happier that the Report quoted my submission a few times.

On the issue of fair use, the Report recommended that Australia adopt a flexible fair use provision, instead of its current regime of enumerated exceptions. The Report quoted my statement that fair use has ‘always been an integral part of copyright law in the common-law world, and it is the notion of an exhaustive list of statutory exceptions that is foreign’.

The Report also made several references to the recent copyright decisions from the Supreme Court of Canada, including the holding about the meaning of ‘private study’ from Alberta (Education) v Access Copyright, which adopted the interpretation that Howard Knopf and I proposed in CILP’s Intervener Factum.

On the issue of orphan works, the Report rejected centralized or extended collective licensing as a solution to the orphan works problem, explaining that such a solution “would be inefficient, and would unnecessarily restrict competition.” The Report referenced my submission where I noted that the tendency to treat the requirement to seek permission before use as dogma ‘impedes simple and effective solutions and leads to the adoption of grand solutions, such as extended collective licensing, that are ineffective at best and harmful at worst’.

Instead, the Report recommended that “Copyright Act should be amended to limit the remedies available in an action for infringement of copyright, where it is established that, at the time of the infringement: (a) a reasonably diligent search for the rights holder had been conducted and the rights holder had not been found; and (b) as far as reasonably possible, the user of the work has clearly attributed it to the author.”  This recommendation is consistent with my submission, which the Report specifically cited, where I noted that orphan works reform should not focus only on the ‘demand side’, namely, users’ inability to locate owners, but also focus on the ‘supply side’, because copyright owners who do not internalize the full social cost of forgone uses, face suboptimal incentives to maintain themselves locatable.

While it is not clear yet whether the Australian Government will act upon these recommendations, the Report charts a very productive way for copyright reform in Australia.