PDC: Creative Works Act

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Preamble

Copyright laws are designed to encourage creative output by providing creators with a limited monopoly over the use and distribution of their work. Once these rights expire, works enter the public domain to be used and built upon by others. Copyright is granted to creators in return for the eventual benefit society receives by having these works created and released into the public domain.

However, 'copyright' is now 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 repeal 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.

Policy text

Repeal 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.
• Provide that rights in unpublished works will terminate 15 years after the death of the creator, to allow sufficient time and incentive for the works to be published.
• Abolish the distinction between 'works' and 'subject matter other than works'.
• Institute a uniform duration for creative rights regardless of the type of work, and all existing types of work will continue to be protected.
• Restrict creative rights 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.
• Allow creative rights held by individuals to be transferable upon their death, but the duration of the rights will not exceed 15 years from publication.
• Allow creative rights held by corporate entities to be bought and sold, or transferred on liquidation, but the duration of the rights will not exceed 15 years from publication.
• Provide that creative rights will always remain with the creator except where the work has been created under a contract that specifies alternative arrangements.
• Permit exclusive licences for a maximum duration of five years to allow creators to periodically renegotiate the terms to be more favourable to them.
• Afford no protection for materials produced by or as a function of government, as they belong to the public.
• Protect software under separate legislation, similar to the way circuit layouts are currently protected.
• Provide that programming made available online by radio stations will be considered a broadcast for licensing purposes.

Define commercial use

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

Improve the rights of the public

• Explicitly protect the right of panorama 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).
• Replace the current limited free-use fair dealing exceptions 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.
• Replace statutory licences with exemptions for libraries, archives, public education and access for people with disabilities.
• Require Open Access provisions 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.
• Abolish the current parallel importation restrictions.

Prevent the abuse of creative rights and improve consumer rights

• Introduce criminal penalties for abusing 'takedown' procedures.
• Require potential applicants in proceedings under the Creative Rights Act to demonstrate a prima facie case and seek leave of the Court to initiate proceedings.
• Make distributors liable for technological protection measures that interfere with the exercise of free-use exceptions and exemptions.
• Require products sold with technological protection measures to be accompanied by information on the nature of the restrictions and any tracking or data collection imposed.
• Give consumers a statutory right to return for refund any products that include technological protection measures within 30 days of their receipt.
• Exclude penalties for circumventing technological protection measures and geoblocking.
• Provide educational materials to Australian consumers and businesses as to how to circumvent geoblocking.
• Amend the Australian Consumer Law so that contracts or terms of service that attempt to enforce geoblocking are considered void.
• Introduce an explicit first sale doctrine (right of resale) which will apply to both physical and digital sales.
• Investigate options to restrict vendors' abilities to lock digital content into particular ecosystems.

Reform moral rights

• Protect the moral right of integrity by licensing arrangements rather than legislation. This will also protect freedom of speech.
• Prohibit users of creative works from implying any form of endorsement by the creator without specific and explicit consent.
• Continue to protect the moral rights to have a work correctly attributed and to not be falsely attributed as the creator of a work.
• Provide that moral rights will last indefinitely, and grant open standing to allow the public to enforce them after the author's death.
• Provide that moral rights will apply to both commercial and non-commercial uses.

Create an Orphan Works Office

• Create an Orphan Works Office with the power to declare whether a work has been abandoned by its creator ('orphaned').
• Provide that individuals, groups and corporations will be able to apply to the Orphan Works Office to have a work declared as orphaned.
• Require creators or rights holders to demonstrate that the work continues to be published in a manner accessible in Australia.
• Allow the Orphan Works Office to declare a work as being orphaned if it can be demonstrated that the work is no longer published in a manner accessible in Australia.
• Provide that a work enters the public domain if the Orphan Works Office declares it has been orphaned.
• Provide that the Administrative Appeals Tribunal will hear appeals relating to decisions of the Orphan Works Office.
• Require the Orphan Works Office keep a public register of orphan works.