PDC: Creative Works Act

Preamble
'Copyright' is a term that has many negative connotations. Although introduced over three hundred years ago to protect authors from unscrupulous publishers, it has come to be associated with control over creators and consumers, stifling their rights and freedoms. Australia's Copyright Act is lengthy and unwieldy as a result of many amendments since its introduction in 1968, and includes rights such as moral rights and broadcasting rights that are not best described as copyrights.

The need for replacement legislation was discussed in the 1990s in response to rapid technological developments. In 1995 the Copyright Law Review Committee made recommendations to simplify the Copyright Act, but these were never implemented. Instead, amendments since 1995 have continued to increase the complexity of Australian copyright law, making it increasingly inaccessible and unintelligible to creators, consumers, investors and distributors.

The recommendations of the 2013 Parliamentary Inquiry into IT Pricing and Australian Law Reform Commission's 2014 report on Copyright and the Digital Economy have not been implemented. Implementing these recommendations would significantly improve the rights of consumers in regard to local and overseas content, and give creators greater flexibility to build on previous works.

Extensions to the duration are the result of extensive lobbying and have not been based on sound economic evidence. As Australia imports more copyright materials than it exports, extensions to our copyright term inevitably impose net costs on our economy. Over the past three hundred years the duration of copyright has been extended from 14 years to the life of author plus a further 70 years — an increase of nearly one thousand percent based on Australia's current life expectancy. However, different types of works are currently given different protection measures and durations, making the legislation all the more difficult to comprehend by those it aims to protect. Evidence indicates a term of 15 years provides the best economic results.

It is time to abolish the Copyright Act and replace it with brand new legislation designed from the ground up to be accessible to creators and consumers, to be relevant and robust in the digital environment, and to provide economic benefits to Australia as a whole. This can be achieved by simplifying the legislation, improving the rights of creators and consumers, and making sure that the law reflects the economic nature of creative rights.

Abolish the Copyright Act 1968 (Cth) and replace it with a new Creative Works Act

 * Institute a creative right that lasts 15 years from date of publication. This will provide adequate economic protection while ensuring the growth of a vibrant public domain.
 * The distinction between 'works' and 'subject matter other than works' will be abolished.
 * The duration of creative rights will be uniform regardless of the type of work and all existing types of work will continue to be protected.
 * Creative rights will only exist in relation to commercial uses of a work. This will maximise the dissemination of culture and encourage derivative works, as well as protect privacy and freedom of speech.
 * Creative rights held by individuals will be transferable on the death, but their duration will not be extended.
 * Creative rights will always remain with the creator except where the work has been created under a contract that specifies alternative arrangements.
 * Exclusive licences will be permitted but for a maximum duration of five years. This will allow creators to periodically renegotiate the terms to be more favourable to them.
 * Materials produced by or as a function of government will not be afforded protection as they belong to the public.
 * Software will be protected under separate legislation, similar to circuit layouts.
 * Programming made available online by radio stations will be considered a broadcast for licensing purposes.

Defining commercial use

 * A use will be commercial if it is primarily intended for or directed towards commercial advantage or monetary compensation.
 * Use by companies, businesses and individuals in the course of trade or commerce will always be commercial use.
 * Use for private entertainment will always be non-commercial.

Improve the rights of the public

 * The right of panorama will be explicitly protected so that rights in works on public display are not infringed by capturing them in another work (such as a photograph, drawing or audio recording).
 * The current limited free-use fair dealing exceptions will be replaced with an open-ended fair use exception, including a non-exclusive list of illustrative uses such as research or study, criticism or review, parody or satire, reporting news, professional advice, quotation, format and time shifting, and incidental or technical use.
 * Statutory licences will be replaced with exemptions for libraries, archives, public education and access for people with disabilities.
 * Open Access provisions will be required for all publicly financed scientific and academic research, including the resulting works and raw data which must be stored in an open and searchable format.
 * The parallel importation restrictions in the Copyright Act will be abolished.

Prevent the abuse of creative rights and improve consumer rights

 * Criminal penalties will be introduced for abusing 'takedown' procedures.
 * Potential applicants in proceedings under the Creative Rights Act will be required to demonstrate a prima facie case and seek leave of the Court to initiate proceedings.
 * Distributors will be made liable for technological protection measures ('TPMs') that interfere with the exercise of free-use exceptions and exemptions.
 * Products sold with TPMs will be required to include information on the nature of the restrictions and any tracking or data collection imposed.
 * Consumers will be given a statutory right to return for refund any products that include TPMs within 14 days of purchase.
 * No penalties will be included for circumventing technological protection measures and geoblocking.
 * Australian consumers and businesses will be educated as to how to circumvent geoblocking.
 * The Australian Consumer Law will be amended so that contracts or terms of service that attempt to enforce geoblocking are considered void.
 * An explicit first sale doctrine or right of resale will be introduced and will apply to both physical and digital sales.
 * Vendors' abilities to lock digital content into particular ecosystems will be restricted.

Reform moral rights

 * The moral right of integrity will be protected by licensing arrangements rather than legislation. This will also protect freedom of speech.
 * Users of creative works will not be permitted to imply that the creator has endorsed a use without the creator's specific consent.
 * The moral right to have a work correctly attributed will continue to be protected.
 * The moral right not to be falsely attributed as the creator of a work will continue to be protected.
 * Moral rights will last indefinitely and open standing will be granted to allow the public to enforce them after the author's death.
 * Moral rights will apply to commercial and non-commercial uses.

Create an office to manage orphan works

 * An Orphan Works Office ('OWO') will be created with the power to declare whether a work has been abandoned by its creator ('orphaned').
 * Individuals, groups and corporations will be able to apply to the OWO to have a work declared as orphaned.
 * The creator or rights holder will have to demonstrate that the work continues to be published in a manner accessible in Australia.
 * If this requirement is not met the OWO will declare the work as being orphaned.
 * The effect of an OWO declaration that a work has been orphaned will be that the work enters the public domain.
 * The Administrative Appeals Tribunal will hear appeals relating to decisions of the OWO.
 * A public register of orphan works will be kept by the OWO.