Cost-benefit analysis of fair use exception

200px-Copyright.svgEFA today cautiously welcomes last week’s announcement from the Attorney-General that he has requested an analysis of the costs and benefits involved in the introduction of a broad, flexible fair use exception into Australian copyright law.

The introduction of a broad, flexible fair use exception was recommended by the Australian Law Reform Commission (ALRC) in its Copyright in the Digital Economy report it provided to the Attorney in December 2013.

EFA strongly supports the introduction of a broad, flexible fair use exception that will introduce much-needed flexibility into Australian copyright law. Australian copyright law is currently outdated not just in relation to technology but also in terms of societal norms. The prevalence of sharing across social media, the importance of remixing in popular culture, and the growth of cloud computing are just three areas where a fair use exception will help to ensure that Australian copyright law can once again become fit for purpose.

EFA Executive Officer Jon Lawrence said today, "while it’s welcome to finally see some action from the Attorney-General on fair use, it's disappointing that it’s taken 20 long months to get to this point. Given that the Attorney has in the interim found time to expedite as yet unused legislation targeted at copyright infringement - the website-blocking bill which became law in June - it's difficult not to be sceptical about the strength of his commitment to positive copyright reform. This analysis could have occurred at any time in the last 18 months. I’m therefore afraid that this announcement may be little more than a stalling tactic to ensure there is no meaningful movement towards reform prior to the next federal election."

ISP copyright code should be halted

The introduction of a number of new Streaming Video On Demand (SVOD) services in Australia in the past year has resulted in extraordinarily rapid growth in the number of Australian households with a 'paid' content service. Roy Morgan Research's figures show that the number of Australian households paying for such a service has grown by a massive 30% since the start of 2015.

This explosive growth is addressing pent-up demand from Australian consumers for competitively-priced and timely access to quality legal content. It confirms what EFA and many other informed observers have long asserted - that Australians are only too happy to pay for content when it's readily available at the right time and at the right price.

The government's own research shows that many Australians that engage in online copyright infringement do so because they have no legal avenue for accessing their chosen content.

As availability to content is increasing, the rate of online copyright infringement is therefore likely to be falling.

Meanwhile, Internet Service Providers (ISPs) are struggling with the implementation of the government’s mandatory data retention regime and therefore may not be in a position to take on additional regulatory burdens at this time. This is particularly true for smaller, regional providers, some of whom may be facing existential challenges from the regulatory burdens imposed by this government.

EFA Executive Officer Jon Lawrence also said today, "As the market’s rapid evolution addresses the historic lack of timely access to quality content for Australian consumers, the government should halt the implementation of an ISP copyright code to ensure that it is not further burdening the industry with additional unnecessary regulation. ISPs are already reeling from the impact of the government's grossly-inadequate preparation in relation to the new data retention obligations, and may have to soon deal with the impact of the website-blocking legislation. This government needs to stop adding layer upon layer of burdensome regulation on an industry which needs space to innovate to meet the current and future needs of Australian businesses and consumers."

EFA therefore calls on the government to halt the process of implementing an ISP copyright code. Work on this copyright code should not then proceed until the implementation of the new mandatory data retention obligations has been concluded, and also not until the government has conducted a detailed cost-benefit analysis to ensure that it is not an unnecessary additional regulatory burden that will further harm competition in the sector and result in higher connectivity charges for Australians.

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