The government had big plans for copyright in the spring sitting period of Parliament — or it did, at least, until Malcolm Turnbull became prime minister.

Emails between the Attorney-General’s Department and the Communications Department seen by Crikey reveal the government was planning on legislating for significant copyright reform in the spring sitting period. While much of the content of the emails released under freedom of information law were redacted due to cabinet deliberation, the government had been working towards “key legislative reforms” on copyright law, with eight (redacted) dot points of reforms the government had planned to have introduced in the spring parliamentary sittings, subject to cabinet approval and inter-departmental consultations.

Before the change of leader, the Attorney-General’s Department indicated Brandis had not yet approved of the policy proposals.

The government had been expected to respond to the Australian Law Reform Commission (ALRC) report Copyright and the Digital Economy the week that Turnbull replaced Tony Abbott as prime minister, but it has not since indicated when it intends to respond.

The report made a number of recommendations including the introduction of a flexible fair use exemption — similar to what already exists in American copyright law — as a defence against claims of copyright infringement, as well as introducing new exemptions, new remedies to encourage the use of orphan works (works whose authors are indeterminable or uncontactable), changes to broadcasting exemptions, and amending copyright contract limits.

Technology companies in particular were in favour of fair use being introduced because their daily business — such as caching methods used by Google — are allowed under US fair use exception, but could potentially be in breach of Australian copyright law. However, copyright holders are concerned that an overly broad fair use exception would make it harder for them to establish violations of their copyright.

When Brandis released the report in February 2014, he indicated the government would embark on a massive overhaul of the Copyright Act to make it “shorter, simpler, and easier to use and understand”. He indicated the act would become technology neutral (without references to outdated technology like videotapes) and would be mindful of Australia’s international obligations around intellectual property — like all those trade agreements we’ve signed up for. Brandis said at the time:

“We will do this in a way that ensures appropriate protection of copyright material in the digital age and encourages culturally and economically beneficial uses of material that do not undermine fundamental copyright principles. That of course is the balance to be struck and the merits do not lie entirely on one side of the scale or on the other.”

Brandis always sat more on the side offering greater protections for copyright holders rather than adapting copyright for the digital era, and in the year since that speech, he introduced and passed legislation to allow copyright holders to go to court to get piracy sites blocked, and tasked the rights holders and internet service providers to work together on a code targeted at reducing online piracy. The former has yet to be used, and the latter is currently at a stalemate.

Brandis handed over the responsibility for copyright along with the Arts portfolio to new Communications Minister Mitch Fifield when Turnbull became leader, and the shift to Communications from the Attorney-General’s Department has left rights holders concerned that the scales will have tipped against them.

The emails reveal Brandis had been invited to speak at the Australian Copyright Council’s Copyright Symposium last month in Sydney. This invite was instead extended to Fifield, who was unable to attend, but outlined in a video message a much softer approach to copyright than Brandis had discussed in his 2014 speech. While praising the government’s efforts so far, Fifield indicated the Copyright Act must balance the interests of rights holders and users “in a technology savvy and forward-thinking way”:

“It should facilitate easy, affordable, and legal access to copyright material but also ensure the economic rights associated with copyright material are enforceable and upheld.”

Where Brandis talked strongly about stopping “theft” by people downloading films and TV shows, Fifeld spoke as Turnbull often did as communications minister of the need for film and TV companies to make their content available in a timely and affordable manner:

“I want to see rights holders and industry working together to manage piracy, whether by educating consumers, making more content available to Australian consumers, or developing innovative licensing platforms to the mutual benefit of creators, distributors, intermediaries, and consumers.”

In a speech to Screen Producers Australia last week, Fifield also indicated the government was now actively considering reform of the Copyright Act.

“The government is currently reflecting on how we might improve the workability of the act.”

Fifield indicated in the video he was particularly concerned, as the former minister for social services, with Australia meeting the requirements of the Marrakesh Treaty to allow new exceptions to copyright law to allow organisations to make books available in formats suitable for the visually impaired. Australia signed onto this treaty in June last year, and the Joint Standing Committee on Treaties recommended a law change to ratify this treaty in September.

Crikey asked Fifield’s office if and when the government intended to pursue copyright changes originally planned under Abbott, and a spokesperson indicated that the government had not made any policy decisions yet.

“The department has provided a briefing to the Minister on the Copyright Act since assuming responsibility for the portfolio,” the spokesperson said.

Foxtel, Village Roadshow and Cordell Jigsaw Zapruder have all said they plan to lodge legal cases to block piracy sites, but no cases have made it to court in the six months since the legislation passed. Foxtel told Crikey this month that a case was coming, but it was taking longer than planned.

It is one part of a series of apparent changes to digital government policy under Turnbull. The Digital Transformation Office was moved into the Department of Prime Minister and Cabinet, and last week the government announced that although it was not rewriting the cybersecurity strategy that had been under development under Abbott, the new Prime Minister had “taken a keen interest in the review” and provided feedback that had been incorporated into the review. The strategy was expected to be released this year, but the government now states there is no set date for release.

Planned mandatory data breach notification legislation is set to be introduced into Parliament in the next fortnight, while new national security legislation targeting telecommunications infrastructure that had been announced under Abbott and was due to be introduced this year, it will now not be introduced until next year.

Peter Fray

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