‘Can copyright law ever catch the digital economy?’

Report on the Australian Digital Alliance forum 'Embracing the Digital Economy: creative copyright for a creative nation', 1 March 2013, Australian Portrait Gallery.

This year’s ADA forum coincided with the current Australian Law Reform Commission inquiry, Copyright and the Digital Economy.  It provided an opportunity to hear Keynote speakers and panelists viewpoints on the impact of economics and technology on copyright law in today’s world of the ‘digital native’―where the idea of resource access and sharing is an expectation and human right.

The main keynote speaker, internet law specialist and New Zealand District Court Judge, David Harvey, picked up on the human rights issue by promoting a total paradigm shift, the discarding of current copyright law in favour of regulation based on Article 19 of ICCPR (freedom of expression). The set of rules we have developed around copyright, he argued, belongs to a print paradigm with little contemporary relevance; its oppressiveness is putting the credibility of law at risk.  Under his model, copyright would become the exception while interference with Article 19 would require justification.  

The other keynote speaker, Associate Professor Matthew Sag (Loyola University Chicago and visiting scholar, Melbourne University) outlined his research on predictability of ‘fair use’ and the US decision to codify ‘fair use’ into law and rely on judicial decision.

In response to the keynote speakers, a wide range of speakers and panelists from diverse backgrounds spoke of their experiences and challenges as stakeholders in copyright law. The underlying concern, common to all the interested parties was that uncertainty regarding the law was stifling creativity and hindering business plans. It became apparent that clear guidelines would be beneficial to anyone who is affected by intellectual property and copyright law. From a Librarian’s perspective this is certainly concern, archiving and allowing access to electronic material while seeking permissions on a case by case basis.

The current Australian Law Reform Commission inquiry focus includes ‘fair use’ and replacement of ‘exceptions’ covering issues such as cloud computing, transformative use and license barriers to digitization.  The Australian Libraries Copyright Council and ADA joint submission to the inquiry supports open ended flexible exceptions based on the US fair use model suggesting that exceptions have to date been unable to effectively adapt to new technologies and fair dealing and technology neutrality need not result in unpredictability. It notes that caching and cloud services are possibly outside protection of the Act.

The ALRC is due to report in November 2013. 

Anne Pyle

Jonathon Guppy

Commonwealth Parliamentary Library