AMENDMENTS TO the Copyright Act passed by the Senate last week finally legalise activities most of the population take for granted, but stop short of introducing US-style, open-ended fair use provisions.
The Federal Government also agreed to several amendments to its original draft of the Copyright Amendment Bill, including removing some “strict liability” offences that would have allowed on-the-spot fines for illegally recording performances.
For example, the proposed changes would have allowed police to fine people for taking pictures of rock concerts with their mobile phones. However, the Government decided that to allow this might “unintentionally capture the harmless activities of ordinary Australians”.
Carolyn Dalton, special counsel at Minter Ellison, said the 200 hundred-odd pages of amendments included some “completely new” approaches to balancing the rights of copyright holders and users.
“There’s fair dealing exceptions for parody and satire. And there’s a new ‘flexible use provision’, which allows cultural institutions, libraries, educational institutions, and people with disabilities to use copyright material for non-commercial purposes,” she said.
“It’s completely new. It’s a bit of a hybrid provision between fair dealing and fair use,” she said. “It’s not as open-ended as fair use, but it’s more open ended than fair dealing.”
Under the changes, the owners of legally purchased copyright material will be able to make several copies for personal use.
“The amended reforms make it clear consumers can transfer the music they own onto devices such as iPods and enable the next wave of technology by allowing people to record a TV or radio program on mobile devices to watch it at a more convenient time,” said Attorney-General Philip Ruddock.
The original draft of the Bill allowed only one copy to be made, which would have meant, for instance, any temporary copies made when shifting material to another format would have had to be destroyed. It also didn’t allow any copied music to be played outside the place where it was originally copied, such as on the way to work.
Copying for institutional use will be subject to a ‘three-step test’, which echoes copyright provisions in several international agreements.
In essence, Dalton said this meant institutions could use copyright material if it is for a “certain special case”, it doesn’t conflict with the “normal exploitation of the work”, and can’t “unreasonably prejudice the copyright owner”.
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