Why did we gain the restrictions of US copyright law but not the rights?
Fair Use laws obviously aren't creating too much uncertainty in the US, but our current laws are definitely creating uncertainty in Australia.
After an 18-month review, the Australian Law Reform Commission (ALRC) has backed calls to bring Australia's copyright laws into the modern age with "Fair Use" exemptions. The change would streamline our current hotch-potch copyright laws, which aren't designed to cope with the rapid pace of technological change.
Australia's current copyright laws need to be rewritten to account for every new technology, an approach which saw everyone breaking the law for almost thirty years until we gained the right to record free-to-air television in 2007. The ALRC's "Copyright and the Digital Economy" report wants to replace this with proactive Fair Use laws which use four technologically-neutral "fairness factors" to determine whether an act of copying is within the law.
Federal Attorney-General George Brandis agrees that copyright laws need an overhaul, describing them as "overly long, unnecessarily complex, often comically outdated and all too often, in its administration, pointlessly bureaucratic". That sounds promising, until Brandis keeps talking and you realise he wants to focus all his attention on filtering the internet and chasing movie downloaders, rather than forging balanced copyright laws.
Brandis has already signalled his reluctance to embrace Fair Use law due to the supposed uncertainty it would create for copyright holders. This of course conveniently ignores the fact that the United States – one of the world's major content creators – has had similar Fair Use laws in place for decades.
The ALRC report anticipated this kind of response from the likes of Brandis, and addressed it head on in the summary report:
"The standard recommended by the ALRC is not novel or untested. Fair use builds on Australia’s fair dealing exceptions, it has been applied in US courts for decades, and it is built on common law copyright principles that date back to the 18th century."
"If fair use is uncertain, this does not seem to have greatly inhibited the creation of films, music, books and other material in the world’s largest exporter of cultural goods, the United States."
Fair Use laws obviously aren't creating too much uncertainty in the US, but our current laws are definitely creating uncertainty in Australia. The Optus TV Now and IceTV cases are two high profile examples where businesses were dragged through the courts even though they felt they were on the right side of the law – and so did the courts in some circumstances. Fair Use rules will create more certainty for copyright owners and businesses contemplating new services based on their content.
What's really frustrating is that Australians didn't inherit Fair Use rights under the 2005 US Free Trade Agreement, in a text-book example of "do as we say, not as we do". The agreement saw Australia adopt many of the restrictions of the US Digital Millennium Copyright Act, such as a ban on circumventing Digital Rights Management even if you're exercising your rights under copyright law. Even if Australians are granted Fair Use exemptions for acts such as format-shifting our DVD libraries, these digital rights management (DRM) laws will stand in the way.
If Fair Use does get up in Australia, it will be interesting to see if other services and copyright holders introduce token DRM protection just so they can neutralise Fair Use exemptions. Other agreements such as the secretive Trans Pacific Partnership also seem heavily weighted in favour of protecting copyright holders and at the expense of our rights under law.
The ALRC clearly states that Fair Use does not include piracy, but some people are happy to muddy the water to ensure we get more copyright responsibilities without the corresponding rights. If Fair Use copyright laws are good enough for the US, why aren't they good enough for Australia? Where do you think the balance lies?