Proposed changes to the Copyright Act to implement the Marrakesh Treaty – with a side note on the ALRC’s fair use recommendation

The Government has recently announced a public consultation on Australia’s implementation of the Marrakesh Treaty. The Government’s proposed implementation is outlined in the Marrakesh Treaty Implementation Options Paper (available here), which proposes three alternatives, all of which require amendments to the Copyright Act 1968 (Cth). Submissions close on 30 November 2014.

Tucked away in the Marrakesh Treaty Implementation Options Paper are two comments with potentially broader ramifications for copyright law. One refers to Government guidelines for use under s 200AB and “commercial availability”. The second refers to the ALRC’s recommendations for a fair dealing or fair use provision, and may indicate that the jury is still out on how the Government will respond to those recommendations.

What is the Marrakesh Treaty?

The Marrakesh Treaty to Facilitate Access to Published Works for Persons Who are Blind, Visually Impaired or Otherwise Print Disabled (the Marrakesh Treaty is available here) does precisely what its name would suggest – it focuses on facilitating the availability of published works to persons with print disabilities.

Through limitations and exceptions in copyright law, the treaty is intended to allow the creation and distribution of copyright works in formats that are accessible to people with visual impairment. Contracting parties may confine these exceptions to circumstances where the works are otherwise unavailable in accessible format and may decide whether the limitations and exceptions are subject to remuneration. There are also provisions to facilitate the international exchange of accessible works.

The Australian government signed the Marrakesh treaty on 24 June 2014 and is working towards ratification of the treaty.

Australia’s Implementation Options Paper

The Marrakesh Treaty Options for Implementation Options Paper states that the Australian Government already believes that it complies with the requirements of the Marrakesh Treaty by the combined operation of combined operation of Part VB, Div 3 (a statutory licensing scheme for institutions and organisations assisting persons with a print disability) and s200AB(4) (exception for use of works by and for people with a print disability in certain circumstances). In addition, the Government said that the Copyright Act does not prevent the importation of copies of works for non-trade use unless it would prejudicially impact the copyright owner and does not prevent exportation of non-infringing material.

However, the Government noted that it had received feedback from stakeholders regarding the complexity of Part VB, Div 3 and s200AB(4) and the regulatory and administrative burden they imposed.

The Marrakesh Treaty Implementation Options Paper proposes three possible options for implementation of the treaty:

  1. “Minor amendment”: The current scheme under Part VB, Div 3 and s200AB(4) would be maintained, with a minor amendment to ensure accessible copies can only be exchanged with other Marrakesh Treaty parties.
  2. “Moderate amendment”:   The statutory licensing scheme in Part VB, Div 3 would be extended to cover artistic works (rather than only literary and dramatic works). The statutory licensing scheme would be simplified (such as by removing obligations relating to remuneration notices and removing a number of the requirements for the declaration of an “authorised organisation”). A further amendment would ensure accessible copies can only be exchanged with other Marrakesh Treaty parties.
  3. “Flexible amendment”:   The amendments in option two would be implemented, together with a “standalone fair dealing provision in line with the recommendations put forward in the ALRC report” to allow fair dealings for any by people with a print disability.  (See our alert post on the ALRC Recommendations here). This fair dealing provision would be subject to the “fairness factors”, which are:
    • the purpose and character of the use;
    • the nature of the copyright material used;
    • the amount and substantiality of the part used; and
    • the effect of the use upon the potential market for, or value of, the copyright material.

The Government has posed a number of questions that submissions may wish to consider.

Broader implications for copyright law and the ALRC fair use recommendations

Guidelines: One of the interesting possibilities raised in these questions that the Government has posed is that the Government may issue “guidelines” for use under s 200AB and or application of the commercial availability test under Part VB, Div 3. Such guidelines, if introduced, could potentially have broader relevance to similar tests elsewhere in the Copyright Act.

ALRC Recommendations: Having followed the ALRC Report and the Government’s response with great interest, we were particularly intrigued by the following comment in the Implementation Options Paper: “Such a provision could then be incorporated into a consolidated fair dealing or fair use provision in the future, should the department decide to undertake broader ALRC related reform.”

It seems therefore that the jury may be still out on the Government’s response to the ALRC Recommendations – is the Government still considering introducing a fair use or fair dealing provision?

About the Author

Anna Spies
Anna is an IP nerd at heart and is a member of the Sydney Team. Anna hopes to communicate to the public some fairly useful and novel thoughts on a substantial part of IP law. On subject matters other than work, Anna enjoys strong grounds of coffee, prepared by a person skilled in the art, but insists on the “must not Berne convention” . She may be seen passing off as a keen skier, although her style is substantially identical in overall impression to an avalanche. Her blogging style is inherently capable of being distinguished by terrible puns, so please accept these with goodwill.
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