CCi Submission to ALRC Copyright Inquiry

The attached report was prepared by Professor Terry Flew, Dr. Nicolas Suzor and Dr. Bonnie Liu of the Queensland University of Technology.   It was developed in consultation with Professor Stuart Cunningham, Professor Anne Fitzgerald, Associate Professor Axel Bruns, Associate Professor Jean Burgess (QUT), Professor Julian Thomas (Swinburne University of Technology), Professor Christoph Antons (Deakin University), and film producer Ms. Cathy Henkel (Virgo Productions and Adjunct Professor, QUT).

Submission to the ALRC copyright exceptions review issues paper

Australia should introduce a transformative use exception. Transformative use is an important part of the copyright balance: it provides a mechanism through which to balance the rights of past authors against the interests of future authors. In the interests of promoting creativity and innovation, the impact of copyright law on the ability of Australians to create new works should be minimised. The scope of a transformative use exception should be based primarily on demonstrable harm to the direct licensing interests of copyright owners – the core of copyright. Importantly, however, there are unresolved questions about fairness that need to be more clearly addressed before the appropriate scope of a transformative use exception can be determined. This submission does not directly address the desirability of introducing a broader fair use right. It is likely that an open ended fair use exception is required to provide a more adequate balance between copyright owners and non-transformative users of copyright. If a broad fair use style exception is introduced, it would likely be desirable to include transformative uses within that exception. This submission, however, takes the more limited position that regardless of whether a fair use exception is introduced, an exception that permits unlicensed transformative uses is required in Australian copyright law.

Copyright and the digital economy : submission to ALRC Discussion Paper 79

Australia should take the opportunity to clearly permit transformative uses of existing material, without requiring consideration of all four fairness factors. The key test should be the effect on the core licensing market of existing copyright expression. To accomplish this, a new transformative use exception should be introduced into Australian law. Alternatively, it should be presumptively fair to make a transformative use of existing material, regardless of commercial purpose, the character of the plaintiff's work, and amount and substantiality of the portion used, if the transformative work does not displace the market for the existing material.

Access to the Internet Submission to ALRC IP 46

This submission is directed to issues arising in respect of the need to recognise and support access to the internet for all Australian residents and citizens. As such it addresses the following questions only: Questions 2-1: What general principles or criteria should be applied to help determine whether a law that interferes with freedom of speech is justified? Question 2-2: Which Commonwealth laws unjustifiably interfere with freedom of speech, and why are these laws unjustified?

Fair Dealing Exceptions Submission to ALRC IP 46

This submission is directed to issues arising in respect of the need to ensure users are able to access copyright works and as such address the following questions only: Question 6-1: What general principles or criteria should be applied to help determine whether a law that interferes with vested property rights is justified? Question 6-2: Which Commonwealth laws unjustifiably interfere with vested property rights, and why are these laws unjustified?

Submission to ALRC IP 46 – Interim Report 127

In Chapter 6 of IP46, vested property rights are recognised to include “copyright and other intellectual property rights”. For the purposes of the Inquiry “the ALRC [identified it was to consider] ‘vested property rights’ more in its broad, rhetorical sense, than in its technical sense, in which there are distinct shades of meaning of ‘vested’”. However, the Interim Report states that any ‘vested right’ of users of copyright works “has not been identified yet in law”. It is assumed from this that the ALRC is proposing not to further consider the contracting out of the fair dealing exceptions. In light of its prior stated purpose it is submitted this is not appropriate...

If it's encrypted it's secure! The viability of US state-based encryption exemptions

US state-based data breach notification laws have unveiled serious corporate and government failures regarding the security of personal information. These laws require organisations to notify persons who may be affected by an unauthorized acquisition of their personal information. Safe harbours to notification exist if personal information is encrypted. Three types of safe harbour have been identified in the literature: exemptions, rebuttable presumptions and factors. The underlying assumption of exemptions is that encrypted personal information is secure and therefore unauthorized access does not pose a risk. However, the viability of this assumption is questionable when examined against data breaches involving encrypted information and the demanding practical requirements of effective encryption management. Recent recommendations by the Australian Law Reform Commission (ALRC) would amend the Privacy Act 1988 (Cth) to implement a data breach scheme that includes a different type of safe harbour, factor based analysis. The authors examine the potential capability of the ALRC’s proposed encryption safe harbour in relation to the US experience at the state legislature level.

Stakeholder perspectives regarding the mandatory notification of Australian data breaches

The advent of data breach notification laws in the United States (US) has unearthed a significant problem involving the mismanagement of personal information by a range of public and private sector organisations. At present, there is currently no statutory obligation under Australian law requiring public or private sector organisations to report a data breach of personal information to law enforcement agencies or affected persons. However, following a comprehensive review of Australian privacy law, the Australian Law Reform Commission (ALRC) has recommended the introduction of a mandatory data breach notification scheme. The issue of data breach notification has ignited fierce debate amongst stakeholders, especially larger private sector entities. The purpose of this article is to document the perspectives of key industry and government representatives to identify their standpoints regarding an appropriate regulatory approach to data breach notification in Australia.

Australian data breach notification : avoiding the State/Federal overlap

Mandatory data breach notification has become a matter of increasing concern for law reformers. In Australia, this issue was recently addressed as part of a comprehensive review of privacy law conducted by the Australian Law Reform Commission (ALRC) which recommended a uniform national regime for protecting personal information applicable to both the public and private sectors. As in all federal systems, the distribution of powers between central and state governments poses problems for national consistency. In the authors’ view, a uniform approach to mandatory data breach notification has greater merit than a ‘jurisdiction specific’ approach epitomized by US state-based laws. The US response has given rise to unnecessary overlaps and inefficiencies as demonstrated by a review of different notification triggers and encryption safe harbors. Reviewing the US response, the authors conclude that a uniform approach to data breach notification is inherently more efficient.

The conceptual and operational compatibility of data breach notification and information privacy laws

Mandatory data breach notification laws are a novel and potentially important legal instrument regarding organisational protection of personal information. These laws require organisations that have suffered a data breach involving personal information to notify those persons that may be affected, and potentially government authorities, about the breach. The Australian Law Reform Commission (ALRC) has proposed the creation of a mandatory data breach notification scheme, implemented via amendments to the Privacy Act 1988 (Cth). However, the conceptual differences between data breach notification law and information privacy law are such that it is questionable whether a data breach notification scheme can be solely implemented via an information privacy law. Accordingly, this thesis by publications investigated, through six journal articles, the extent to which data breach notification law was conceptually and operationally compatible with information privacy law. The assessment of compatibility began with the identification of key issues related to data breach notification law. The first article, Stakeholder Perspectives Regarding the Mandatory Notification of Australian Data Breaches started this stage of the research which concluded in the second article, The Mandatory Notification of Data Breaches: Issues Arising for Australian and EU Legal Developments (‘Mandatory Notification‘). A key issue that emerged was whether data breach notification was itself an information privacy issue. This notion guided the remaining research and focused attention towards the next stage of research, an examination of the conceptual and operational foundations of both laws. The second article, Mandatory Notification and the third article, Encryption Safe Harbours and Data Breach Notification Laws did so from the perspective of data breach notification law. The fourth article, The Conceptual Basis of Personal Information in Australian Privacy Law and the fifth article, Privacy Invasive Geo-Mashups: Privacy 2.0 and the Limits of First Generation Information Privacy Laws did so for information privacy law. The final article, Contextualizing the Tensions and Weaknesses of Information Privacy and Data Breach Notification Laws synthesised previous research findings within the framework of contextualisation, principally developed by Nissenbaum. The examination of conceptual and operational foundations revealed tensions between both laws and shared weaknesses within both laws. First, the distinction between sectoral and comprehensive information privacy legal regimes was important as it shaped the development of US data breach notification laws and their subsequent implementable scope in other jurisdictions. Second, the sectoral versus comprehensive distinction produced different emphases in relation to data breach notification thus leading to different forms of remedy. The prime example is the distinction between market-based initiatives found in US data breach notification laws compared to rights-based protections found in the EU and Australia. Third, both laws are predicated on the regulation of personal information exchange processes even though both laws regulate this process from different perspectives, namely, a context independent or context dependent approach. Fourth, both laws have limited notions of harm that is further constrained by restrictive accountability frameworks. The findings of the research suggest that data breach notification is more compatible with information privacy law in some respects than others. Apparent compatibilities clearly exist as both laws have an interest in the protection of personal information. However, this thesis revealed that ostensible similarities are founded on some significant differences. Data breach notification law is either a comprehensive facet to a sectoral approach or a sectoral adjunct to a comprehensive regime. However, whilst there are fundamental differences between both laws they are not so great to make them incompatible with each other. The similarities between both laws are sufficient to forge compatibilities but it is likely that the distinctions between them will produce anomalies particularly if both laws are applied from a perspective that negates contextualisation.

Media classification : Content regulation in an age of convergent media

This article outlines the key recommendations of the Australian Law Reform Commission’s review of the National Classification Scheme, as outlined in its report Classification – Content Regulation and Convergent Media (ALRC, 2012). It identifies key contextual factors that underpin the need for reform of media classification laws and policies, including the fragmentation of regulatory responsibilities and the convergence of media platforms, content and services, as well as discussing the ALRC’s approach to law reform.

Classification—Content Regulation and Convergent Media

On 24 March 2011, Attorney-General Robert McClelland referred the National Classification Scheme to the ALRC and asked it to conduct widespread public consultation across the community and industry. The review considered issues including: existing Commonwealth, State and Territory classification laws the current classification categories contained in the Classification Act, Code and Guidelines the rapid pace of technological change the need to improve classification information available to the community the effect of media on children and the desirability of a strong content and distribution industry in Australia. During the inquiry, the ALRC conducted face-to-face consultations with stakeholders, hosted two online discussion forums, and commissioned pilot community and reference group forums into community attitudes to higher level media content. The ALRC published two consultation documents—an Issues Paper and a Discussion Paper—and invited submissions from the public. The Final Report was tabled in Parliament on 1 March 2012. Recommendations: The report makes 57 recommendations for reform. The net effect of the recommendations would be the establishment of a new National Classification Scheme that: applies consistent rules to content that are sufficiently flexible to be adaptive to technological change; places a regulatory focus on restricting access to adult content, helping to promote cyber-safety and protect children from inappropriate content across media platforms; retains the Classification Board as an independent classification decision maker with an essential role in setting benchmarks; promotes industry co-regulation, encouraging greater industry content classification, with government regulation more directly focused on content of higher community concern; provides for pragmatic regulatory oversight, to meet community expectations and safeguard community standards; reduces the overall regulatory burden on media content industries while ensuring that content obligations are focused on what Australians most expect to be classified; and harmonises classification laws across Australia, for the benefit of consumers and content providers.

Academics and activists in the policy process : engagement with Australian media inquiries 2011-13

After its narrow re-election in June 2010, the Australian Labor government undertook a series of public inquiries into reform of Australian media, communications and copyright laws. One important driver of policy reform was the government’s commitment to building a National Broadband Network (NBN), and the implications this had for existing broadcasting and telecommunications policy, as it would constitute a major driver of convergence of media and communications access devices and content platforms. These inquiries included: the Convergence Review of media and communications legislation; the Australian Law Reform Commission (ALRC) review of the National Classification Scheme; the Independent Media Inquiry (Finkelstein Review) into Media and Media Regulation; and the ALRC review of Copyright and the Digital Economy. One unusual feature of this review process, discussed in the paper, was the degree to which academics were involved in the process, not simply as providers of expert opinion, but as review chairs seconded from their universities. This paper considers the role played by activist groups in all of these inquiries and their relationship to the various participants in the inquiries, as well as the implications of academics being engaged in such inquiries, not simply as activist-scholars, but as those primarily responsible for delivering policy review outcomes. The latter brings to the forefront issues arising in from direct engagement with governments and state agencies themselves, which challenges traditional understandings of the academic community as “critical outsiders” towards such policy processes.

Copyright exceptions beyond the Copyright Act 1968 (Cth)

Exceptions are an important part of the Australian copyright law landscape due to the role they play in delineating the extent of the rights held by copyright owners and, correspondingly, the permitted activities of users of copyright materials. The nature and scope of copyright exceptions has been examined in several reviews of copyright law and are again being considered by the Australian Law Reform Commission (ALRC) as part of the ‘Copyright and the Digital Economy’ review which is currently underway. The ALRC’s terms of reference require it to examine, inter alia, ‘whether the exceptions and statutory licences in the Copyright Act 1968, are adequate and appropriate in the digital environment.’ While the ALRC inquiry focuses on exceptions provided under the Copyright Act 1968 (Cth) (“Copyright Act”), there are several copyright exceptions in other Commonwealth statutes which are of relevance and which should not be overlooked.

The only way to fix copyright is to make it fair

Everyone knows there’s a problem with copyright. Artists get paid very little for their work, and legitimate consumers aren’t getting a very fair deal either. Unfortunately, nobody agrees about how we should fix it. Speaking at the Australian Digital Alliance forum last Friday, the Attorney-General and Arts Minister George Brandis said we might have to ask Internet Service Providers (ISPs) to police copyright, in order to deal with “piracy”. In 2012, the High Court in the iiNet case thought it wasn’t a good idea to make ISPs responsible for protecting the rights of third parties...