Podcast: Drone usage and related legal work reach new heights
This week on The Lawyers Weekly Show we take a look at the rising use of drones for commercial and retail purposes, and the laws and regulations that accompany them.
Our host, Lawyers Weekly journalist Lara Bullock, is joined by Piper Alderman partner James Lawrence, who is something of a drone law expert.
Mr Lawrence sheds light on the incredible growth rate of drone usage and the potential growth yet to come.
With this rise there are two tangible trends: a reduction of red tape with new Civil Aviation Safety Authority (CASA) regulations coming into effect on 29 September, contrasted by the need for more privacy laws stemming from recommendations by the Australian Law Reform Commission (ALRC).
The space is changing, and drone law is something that lawyers in many practice areas need to be across.
Listen to other episodes of The Lawyers Weekly Show:
Episode 5: Revamping the law firm model
Episode 4: Bringing creativity back to the law
Episode 3: From outback to Martin Place
Episode 2: Is law school teaching enough critical thinking?
Episode 1: Legalising medical marijuana
Intro: Welcome to the Lawyer's weekly podcast. For an in depth look at the issues facing the legal profession. This is your host Lara Bullock.
Lara Bullock: Welcome to the Lawyer's weekly show. I'm your host Lara Bullock and today we have Piper Alderman partner, James Lawrence here, to talk to us about the legal world of drones. Welcome James Lawrence.
James Lawrence: Thank you very much Lara, pleasure to be here.
Lara Bullock: Wonderful, so James, first of all, can you just tell us a little bit about the history of drones and their common uses today?
James Lawrence: Sure Lara, most people when they think about drones, might think of military drones. What we're going to be really focusing on today are drones used in the civilian context, so commercial drone use and retail drone use. Australia was the first country to regulate, formally, the use of drones for civilian use and commercial use. In fact, CASA first set out their set of rules in 2002, well before the USFFA set out their set of rules.
Lara Bullock: How interesting, leading the way there.
James Lawrence: Absolutely right. That was back in 2002, then in 2007, just in way of example, there were less than 25 certified drone operators. Being the regulator for use of aircraft in Australia, the Civil Aviation Safety Authority controls the permits and authorizations for drone use in Australia; along with, of course, aircraft.
Then going to 2016, there are around 500 certified drone operators now, that's right. Most of those are small multi rotor type drones. The sector really is growing, so it's very much an exciting time for the use of commercial drones in Australia and worldwide in fact. Again, CASA taking the lead on really cutting a lot of the red tape around the use of drones in a commercial context, which means that really it's quite an exciting time for the use of drones.
Lara Bullock: Definitely, so obviously it's grown a huge amount in recent times. How big is this market going to get in the near future?
James Lawrence: It's difficult to tell, but some people in the United States, for example, are saying that the commercial sector for the use of drones, so putting aside the military use, it could be as large as $20 billion by 2020. It does have a lot of room for growth there. What we're seeing is a lot more uptake in the real estate, insurance, imaging and agribusiness sectors. A lot of people are now using drones for crop monitoring, that is very much a large part of the commercial use of drones in this country.
The beauty of some of these drones is with their large payloads is that, a lot of imaging and optical senses can be applied to the drones. Which allows for much swifter analysis of crops, for example, then otherwise would have been possible. In the olden days, of course you would have to use some kind of fixed wing aircraft, to try and conduct that, or it would be done manually.
Lara Bullock: What sort of rules and regulations surround the use of drones in Australia?
James Lawrence: Just stepping back, as the regulator, CASA sets a number of rules around the use of drones in Australia. Generally, there is a set of what are called standard operating conditions, that have been set out by CASA in terms of they're the boundaries by which you must operate your drone. Those conditions, generally are that you must operate the drone in a visual line of sight. You can't operate the drone above 400ft, above ground limit. That's a ceiling cap on the height.
You can't operate within 30 meters of a person, so other than the people that are directly associated with the use of the drone. You can't fly the drone in a restricted airspace. Also, you can't fly the drone over what is deemed by the regulations to be a populous area, so for example, a beach might be a good example of that. Generally, the regulations define a populous area as being one during which there was a failure, for example, of the aircraft; would that pose an unreasonable safety risk for the people below? If it was to crash down and injure someone for example.
Importantly, there is now a new provision that is being included within the standard operating conditions, given some recent press around when then Victorian bush fires were on, namely around the fact that you cannot use an RPA over an area where there is a fire, where there are police, or other public safety issues of public importance.
Lara Bullock: How exactly is CASA keeping up with the growth of the drone industry?
James Lawrence: Importantly, as I say, CASA really is at the forefront of the use of drones worldwide; in a sense that they have now seen the prospects and the benefits for use of drones in Australia. They have just recently released a new set of amendments to the CASA regulations, which govern the use of drones. They will come into force on 29, September this year.
At the moment, we're still operating under the old, much more restrictive regime but that will change as of 29 September, this year. The standard operating conditions that I was just talking to, they come into force in September.
Lara Bullock: Are there any other changes that are happening?
James Lawrence: With the new set of CASA regulations coming into force in September; there are a lot of other related pieces of either policy, or legislation, that do pose barriers to entry, for the use of drones. A classic example of that is in New South Wales where the National Parks and Wildlife Act sets up a series of rules around the use of drones in National Parks.
For example, there is a policy document that the National Parks and Wildlife have established, that governs the permissions required to use drones for photography in National Parks, in New South Wales. The upshot of that is that you need a permit from National Parks and Wildlife. Equally, there is also a regulation around the use of drones curiously for filming marine mammals.
They are quite strict and they are certainly more strict than the standard operating conditions of CASA. For example, an operator of a UAV; when I say UAV, that means unmanned aerial vehicle. That term has incidentally been replaced with the term RPA, in the new legislation, which means remotely piloted aircraft. There are quite a few acronyms involved, but in that particular piece of legislation, you cannot fly within 300 meters of a marine mammal.
Lara Bullock: Wow!
James Lawrence: It is quite restrictive. That's particularly during whale season ...
Lara Bullock: I can imagine.
James Lawrence: The regulators will be on watch.
We're seeing quite a lot of work in the commercial space around the use of drones in the insurance industry, for example, also in oil and gas. Again, one of the benefits for the use of drones is that they can save a lot of time and money in circumstances where otherwise, you would of have to of had to have manual inspection of an object for example.
In the insurance space we're seeing underwriters and insurers able to use drones to, for example, survey damaged buildings after large storms. That really saves a lot of time and money. There is a real growing market in the provision of those services to insurers and underwriters. Managing liability and indemnities in the contractual arrangements between the drone service provider and the insurer is a real balancing act.
Lara Bullock: To me it seems like there would be a raft of intellectual property and privacy issues as well, is that the case?
James Lawrence: We're also obviously seeing a lot in intellectual property context; as a lot of these drones will generally take optical surveillance or imaging devices as part of the payload so there's a lot of imaging being taken, photographers are a classic example of users of drones, so a real question arises in the context of; who owns copyright, for example, in images that are being taken and how is that managed in the context of a service agreement?
In the copyright context, the first owner of the copyright is the person who takes the photograph. In those circumstances, ownership of copyright will be a real issue in the context of someone who engages a drone operator. If you're engaging that operator; you may want, for example, the copyright and any copyright work produced by use of the drone.
The other area where there is ... I guess it's more of a public perception issue and that is the issue of privacy. A lot of people are concerned around the use of drones and commercial drone use, and commercial drone use at a more consumer level is obviously growing. There are more drones in the sky. The sale and supply of drones is not regulated in Australia and so it's difficult to tell precisely how many drones there are in the market. The best guess for that at the moment is probably in the tens of thousands, in this country.
There is a concern around privacy and intrusion. Of course, in Australia, we do not have a tort of intrusion of privacy. We have the Commonwealth Privacy Act, but that generally regulates the collection and use of personal information. There is a gap in some people’s minds around protection of privacy. In fact, the Australian Law Reform Commission recently recommended that Australia embrace a Commonwealth, legislative right of privacy. As yet, that has not been acted on.
Lara Bullock: I guess in some ways they're trying to cut back the red tape around regulation, but then also there may need to be the introduction of new laws in regards to privacy, is that right?
James Lawrence: Yeah that's right. It's obviously that the ball is in the Federal Government court as to whether the Government will act on, or deem it necessary to have a Federal right of action or statutory right of action for invasion of privacy, which we don't presently have. We do have, of course, the tort of nuisance. If somebody's flying a drone, causing nuisance over someone's property, for example, then there are some steps that could be taken on that front, as well as trespass, so you could consider those forms of action potentially.
There's no strict invasion of privacy right in this country, at this stage. The other issue of course that dovetails with that, is the issue around whether the drone, or a device attached to the drone, could be regarded as a surveillance device. There has been discussion around this and the ALRC did look into this during the course of their inquiry. At this stage, most people are of the view that a drone, even if it carries a camera, is not a surveillance device, or an optical surveillance device; within the meaning of the state and Commonwealth Surveillance Devices Act.
Purely because those acts are directed at optical devices that are installed on, or located on premises. It's difficult to say that they fall into the scope of that set of legislation.
Lara Bullock: Interesting. So James, given all that we've discussed, what do you expect to see in the future when it comes to drones and legal work?
James Lawrence: I think we're going to see a lot more of it, is the short answer. With the growing prevalence with the use of drones in a commercial context, we're going to see more tension between the regulator and the user. We're going to see, the privacy issue has not yet concluded, I think we'll see a lot more commentary around that. We will see a lot more management of the rights between the drone operators, or the drone service providers, which is in itself an industry and which is a growing one, and the users of those services.
For example, particularly around warranties and indemnities. Requirements that the operators have the relevant permits etc, where required. I think intellectual property, there will be a lot more to be seen in the IP space. A lot of the work we're seeing at the moment, in the drone sector, involves some wonderful technology around collision avoidance and autonomous flight. There's going to be a lot more around those two aspects in particular. Going back to the standard operating conditions that CASA has set out, of course, autonomous flight is prohibited, unless otherwise authorized.
This presents a whole raft of issues because a lot of the commercially available drones, even at a retail level, allow for autonomous flight. They allow for the setting of way points, for example, even off your mobile device that controls the drone. There's a lot of tension there.
Lara Bullock: Definitely, well it seems like a very hot topic and definitely for lawyers to keep an eye on, especially with the new regulations coming in, in September. Thanks so much for coming in today James Lawrence, really appreciate it.
James Lawrence: You're welcome, thanks very much.
Lara Bullock: Wonderful. I'm Lara Bullock and thanks for listening to the Lawyer's weekly show.