Australian Gov't Considering ‘Graduated Response’, Commits to Overhaul of Copyright Act

Australia is edging toward a “graduated response” system after the attorney-general declared his country’s government would consider such measures to help curb online piracy. 

George Brandis, who serves in the dual role of attorney-general and minister for the arts, told a gathering last Friday he was committed to a major overhaul of the country’s Copyright Act, to bring the laws up-to-speed with new technologies. 

In a speech to the Australian Digital Alliance Forum, Brandis expressed his support for the creative industries and suggested ISPs would play a much bigger role in copyright enforcement. 

The government, he said, would mull over “possible mechanisms” to provide a “legal incentive” for ISPs to co-operate with copyright owners in preventing infringement on their systems and networks.

“This may include looking carefully at the merits of a scheme whereby ISPs are required to issue graduated warnings to consumers who are using websites to facilitate piracy,” he said. 

One option under consideration is for the Federal Court to be provided with “explicit powers” to provide for third-party injunctions against ISPs -- which would ultimately require ISPs to “take down” Websites hosting infringing content.

Brandis, however, continues to call for “industry co-operation” to find a solution. His full speech can be read here

The previous day, Brandis had tabled the long-awaited final report from the Australian Law Reform Commission’s (ALRC) “Copyright and the Digital Economy” inquiry, a probe tasked with determining if copyright exceptions and limitations were working in the digital age. The conclusion of the report was that reform was required.  

The country’s Copyright Act, he said, is “overly long, unnecessarily complex, often comically outdated and all too often, in its administration, pointlessly bureaucratic.” The key recommendation of the report is that the nation adopt a broad, flexible “fair use” exception to copyright. Under “fair use” law, it’d be illegal to reproduce or modify creative work except in the context of reporting the news, study or research, satirising, parodying, critiquing content, or giving legal advice.

Brandis admitted he was yet to “be persuaded that this is the best direction for Australian law, but nevertheless I will bring an open and inquiring mind to the debate. I am convinced that we can do much to improve how copyright works in this country.”

The record industry has welcomed the development. “We are encouraged by the attorney-general’s recognition of the contribution of the music industry to the Australian economy,” ARIA CEO Dan Rosen says in a statement provided to Billboard.biz.  “We are also supportive of the attorney-general’s statement that rights protection will be part of the copyright review agenda, and his commitment to protecting the rights of creators and the creative industries in the digital environment.” 

If and when Australia’s government gets behind so called “three-strikes” legislation, the country would become part of a small club which includes South Korea and neighbors New Zealand.  

Rosen notes that the recording industry will work with the attorney-general on the consultation process and on the introduction of rights protection processes, which “will permit music makers and those who invest in them to continue to embrace the opportunities which the digital economy affords them.”

Australia’s copyright framework has been tested in the country’s highest courts in recent years, in a long-running copyright infringement case that pitted trade association the Australian Federation Against Copyright Theft (representing movie studios and TV broadcasters) against the iiNet ISP. Many expected the outcome of the trial -- which found that iiNet didn't authorize its customers' copyright infringement -- would shape the country's stance on "three-strikes" anti-piracy legislation. The High Court’s decision of 2012 in the iiNet case, notes Brandis, had influenced the government's position.

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