Of copyright bureaucracies and incoherence: stepping back from Australia's recent copyright reforms.

• Jurisdiction: Australia
• Date: 01 December 2007
• Author: Weatherall, Kimberlee

[Australian copyright law has recently undergone a period of intense reform. In this article, the author seeks to give both a comprehensive history of the period just past, and a bird's-eye view of the resulting reforms--highlighting the hitherto unremarked way in which they affected the many institutions which manage copyright. In short, recent copyright reforms have a peculiarly 'bureaucratic' bent. In many areas, the government created detailed rules capable of objective application--rules ideally tailored, perhaps, to the many organisations that participated in the development of copyright policy over the period. In addition, the new copyright laws almost across the board reserve significant policymaking discretion to the executive: from the Attorney-General to agencies such as the Australian Competition and Consumer Commission and the Australian Communications and Media Authority. Whether or not this bureaucratic tendency in copyright marks a shift in focus, or simply a continuation of past trends, it certainly warrants closer attention.]

CONTENTS I Introduction II A Brief History of Australian Copyright Law 2003-06 A The Domestic Copyright Agenda circa 2003 B 2004: The Impact of the AUSFTA C 2005: The Year of the Never-Ending Copyright Review D 2006: End Game III Understanding the History and Its Implications IV Bureaucratising Copyright A The New Copyright Exceptions B The Criminal Provisions C The TPM Provisions V Conclusions [T]here will be a time when it will be much better for us to step back and talk about the particular range of often competing interests that we want Australian copyright laws to be able to protect or support--not when we are debating just a particular set of changes. (1) INTRODUCTION

There was much sound and fury in Australian copyright policy circles between 2003 and 2006. The transformation of Australian copyright law in this period has been nothing if not rapid. We have had several major events: in particular, the conclusion of the Australia United States Free Trade Agreement ('AUSFTA') in 2004, (2) the passage, first of some 90 pages of amending legislation in 2004, and then, in 2006, the 215-page Copyright Amendment Act 2006 (Cth). (3) With the worst of the storm at least temporarily in abeyance, it is possible to step back and offer a holistic view of the outcomes for Australian copyright law.

Others have already begun the work of summarising and explaining the particular changes that this period has wrought--copyright term extension, new performers' rights, new exceptions, new anti-circumvention laws and so on. In this article, I want to do something different: take a step back and ascertain the impact of recent changes on the institutional shape of the copyright system in Australia. (4)

Institutions matter. Copyright is not only a legal regime for the creation and recognition of exclusive, proprietary rights in the fruits of human creativity. It also comes with an associated bureaucratic system: a series of institutions and agencies which play various roles in managing copyright rights and the relations between copyright owners and users. Some of these institutions are entirely public in nature: government departments, administrative tribunals, independent statutory authorities, and the police and prosecutorial arms of government. Others, such as collecting societies, occupy ground between the purely public and purely private realms. As I will seek to show, if we step back and look at the recent reforms as a whole with this copyright system foremost in our minds, it becomes clear that, in numerous large and small ways, the roles of the various institutions and entities which make up the copyright system have been changed by the recent reforms. To give some examples, the system for enforcement of copyright has potentially been transformed by the inclusion of regulatory techniques; (5) concerns regarding the effect of the new digital copyright laws on public access to works have been addressed by the creation of an administrative system for ad hoc resolution of complaints by a government department; (6) and in a quest for certainty, new exceptions have been written and existing exceptions have been restructured in such a way as to make their application practically automatic--a style that might suit the bureaucratically organised institutions such as libraries or educational institutions which dominated the debate on behalf of 'user' interests, but may not suit many others. (7) I also seek to show that these outcomes were not preordained. The government repeatedly selected the reform option which most expanded the role of the bureaucracy in the ongoing management of copyright.

The existence of a bureaucratic system for the management of copyright is not new, but deserves more attention than it generally receives in Australian academic circles. (8) The relative dearth of such discussion contrasts with a growing literature on Australia's system for examination and grant of registered rights, (9) and on copyright systems in other countries. (10) My aim in this article is not only to contribute to a greater understanding of recent Australian copyright reforms, but also to prompt broader debate about both the nature and effectiveness of Australia's existing copyright system, and how administrative aspects of the copyright system should be constructed.

II A BRIEF HISTORY OF AUSTRALIAN COPYRIGHT LAW 2003-06

Law is shaped by the processes through which it is generated. Before turning to the shape and nature of the recent copyright reforms and their impact on the copyright system, I will therefore outline the 'storm' which gave birth to them. In this Part, I will disentangle some of the threads of the reform process, highlight certain striking features, and identify and evaluate the complaints that were voiced during the period by stakeholders unhappy with the course of action adopted by the government, I will return, in Part IV, to the outcomes and the bureaucratic aspects of the changes wrought by the Copyright Amendment Act 2006 (Cth). The history of the reforms as outlined in this Part is necessary in order to comprehend the driving forces which led to the shape of the resulting laws.

The passage of the Copyright Amendment Act 2006 (Cth) was the culmination of an intense period of change in Australian copyright law, resulting from the interaction between an existing process of domestic law reform, rapidly changing technology, and foreign and trade policy in the form of the AUSFTA. It is well known that the AUSFTA, concluded in February 2004, contained both very detailed obligations relating to copyright law and a strict timetable for their implementation, (11) creating the impetus which drove rapid, wholesale amendment of Australian copyright law. (12) However, the AUSFTA was only part of the picture: there was a pre-existing domestic reform agenda which the AUSFTA partly galvanised and partly blocked, and a whole new policy agenda post-AUSFTA. To understand what happened in 2006, some knowledge of the copyright agenda prior to the AUSFTA is necessary.

A The Domestic Copyright Agenda circa 2003

It is well known that the explosion of digital technologies and the rise of the internet caused upheaval in copyright law globally and in Australia from at least the early 1990s. (13) As digital reproduction and communication of copyright works became more commonplace, there was some legal uncertainty as to whether such acts of communication were covered by the international and domestic copyright law then in force. (14) In response to these technological developments, two international treaties, the Worm Intellectual Property Organisation Copyright Treaty (15) and the WPPT (16) were negotiated in 1996. Australian law subsequently underwent an extended process of revision to update the law and give effect to the treaties, culminating with the Copyright Amendment (Digital Agenda) Act 2000 (Cth). (17) Broadly speaking, that Act did three things:

1 extended the exclusive rights of the copyright owner so that they clearly covered actions in a digital context;

2 extended copyright exceptions and compulsory licences to the digital environment; and

3 provided legal enforcement for technological protection measures ('TPMs') used to control use of copyright material in digital form (also referred to as digital rights management ('DRM')).

The passage of the Copyright Amendment (Digital Agenda) Act 2000 (Cth) represented a comma, or maybe a semicolon, rather than a full stop, in copyright policy activity. In fact, as of February 2004, when the AUSFTA was signed, there were a number of copyright matters still on the agenda. (18) Recommendations from the four most recent Copyright Law Review Committee ('CLRC') reports were outstanding: (19) two reports on a reference regarding the simplification of the complex Copyright Act 1968 (Cth), (20) and two 2002 reports, one recommending the expansion of the jurisdiction of the Copyright Tribunal, (21) the other recommending that copyright owners not be allowed to override copyright exceptions through contract. (22) It is fair to say that no-one involved in copyright policy expected the recommendations of these reports to be implemented in full, with perhaps the exception of the less controversial Copyright Tribunal report. (23)

Nevertheless, various parts of the reports could still be considered live issues in the sense that the government retained a commitment to respond to the reports. In addition, over the course of 2003, the operation of the Copyright Amendment (Digital Agenda) Act 2000 (Cth) was the subject of a public review, known as the Digital Agenda Review, conducted on behalf of the government by law firm Phillips Fox. (24) The Review examined how the 2000 legislation was working, with a particular focus on questions that remained controversial: (25) the liability of internet service providers ('ISPs') for infringements occurring...