Copyright law in Australia makes it arguable that the provisions regarding time shifting and format shifting under are unclear. This article proposes and justifies changes to the Copyright Act that would create certainty for copyright users.
Identifying The Issues
The personal use provisions outline time shifting and format shifting exceptions to copyright infringement. Section 111 of the Copyright Act (Act) is the provision which deals with “time shifting” or the recording of a broadcast for replaying at a convenient time. Section 43C of the Act deals with reproducing works in books, newspapers and periodical publications into a different format. Section 47J of the Act deals with copying of photographs into a different format. Section 110AA of the Act covers the copying cinematograph film in a different format. Section 109A of the Act deals with the copying of sound recordings.
Identifying problems with the current legislation
The Copyright Act was amended in 2006 to include format shifting and time shifting provisions. In hindsight, copyright law is considered “a buggers muddle” and there have been some notable problems with the legislation in the digital age, including;
- The complexity of the personal use provisions and the language used;
- The prescriptive language used to define the provisions; and
- The one-sidedness of the provisions in favour of copyright holders.
This paper will outline the problems, compare and contrast the Australian Copyright Act with worldwide copyright instruments and suggest ways in which the personal use provisions could be amended to better suit the copyright users.
Second Reading Speech on Copyright Amendment Bill
In the Second Reading Speech of the Senate on the Copyright Amendment Bill, senator Trish Crossin says;
Popular attention on one aspect of format shifting … overlooked the real question of whether the format-shifting provisions generally work adequately for consumers. For example, you can have one copy on an MP3 player but not one to store on the computer. There are odd inconsistencies that allow copying from one format—say, VHS to DVD— but not between others, such as DVD and DVD, that do not seem to have any logic and indicate a lack of understanding of current and emerging technology. Nevertheless, copyright owners are very nervous about the extent of flexibility given to an individual consumer and how multiple copies may be abused.
Sound Recording – Section 109A
The provision at section 109A of the Act is the easiest to understand. It states that a person is allowed to make a copy of a sound recording for private and domestic use, with a device that they own, provided that the original copy is not an infringing copy, that neither the original, nor the copy is sold, leased, traded, distributed, played in public or broadcast.
There are some common factors in this paragraph which can be applied throughout the Act making it simpler to understand and less prescriptive. These factors include;
- Private and domestic use;
- The original is not an illegal nor infringing copy (or they legally own);
- Not sold, leased, traded, distributed, played in public or broadcast.
What is outlined above is a basic principle in which the elements of time or format shifting could be reduced down to. What this paper suggests is that if you:
- have paid consideration for an product in good faith; and
- you wish to make copies for your own private and domestic use, for example a copy on mp3 player, phone, tablet and a copy on your pc; then
- you should be allowed to, providing the original or the copies are not;
- sold, leased, traded, distributed, played in public or broadcast or used in a commercial way which benefits the user.
Section 109A(1)(b)(ii) provides that the recording must be made on a device that he or she owns. This is an example of a prescriptive, confusing, muddled part of the legislation. If the articles outlined above at 1 – 4 are adhered to, then it shouldn’t matter who owns the device. Sections (2), (3)(d) and (4) provide the family or household exception to the distribution exemption of the Act. Distribution is taken to have not happened if it is a member of the copyright users family or household. So this section essentially says that a brother can listen to a song, that he owns on CD, with his family, from his family’s PC, but can’t make a copy from that PC on his phone. This is confusing and contradictory.
Time Shifting – Sections 111
Section 111 of the Act is practically identical to section 109A. It essentially outlines the provision for recording a film or broadcast, for private and domestic use to be replayed at a more convenient time, providing the copy is not sold, leased, traded, distributed, played in public or broadcast. The time shifting provision can be treated in the same way as section 109A above, and the underlying principals suggested are also the same.
Books, Newspapers and Periodicals – Section 43C
Section 43C provides the ability to make a copy in a different format from a work within a book, newspaper or periodical publication for private or domestic use. Section 43C is very prescriptive, convoluted, difficult to understand and has some strange subsections. Ss 1(c) says that the copy must be in a different format, so no pdf to pdf copying from pc to tablet is allowed under this section. Ss 1(e) says that there can only be one main copy made from the original.
Analysis of 43C
These inconsistencies can be seen clearly in the 43C provisions when the legislation only allows one main copy, and only in a different format, and any intermediate copies be destroyed. These provisions do very little to promote the fair use of books, newspapers and periodical publications and heavily favour the copyright owners.
Creating Certainty for Copyright Users
The right to make copies of books, periodicals and newspapers that you have paid consideration for in good faith, and the copies are for your own private and domestic use, should be allowed, providing the original or the copies are not sold, hired, offered or exposed for sale or hire or distributed for the purpose of trade or otherwise. In her speech, senator Crossin suggests that copyright owners are afraid of how multiple copies might be abused, but if a fair amount of copies are made, for legitimate purpose and no commercial gains are made, then it would be difficult to see what the difference would be. The law should go to the intention of the parties and their conduct. If someone is going to make copies of a book to sell, they are committing a criminal act and it is doubtful whether a 43C provision is going to matter to them anyway.
Copyright Fair Use Type Provisions
The general principals this paper outlined above go more to the intention of the parties, similar to the Fair Use provisions of the U.S. legislation, which says;
- the purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes;
- the nature of the copyrighted work;
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- the effect of the use upon the potential market for or value of the copyrighted work.
Copying of Photographs – Section 47J
The 47J provisions are identical to the provisions at 43C above. Only one main copy is to be made, in a different format. S47J does not allow copyright users to make a digital copy of their digital photos, whereas the provision at 109A allows users to take digital music and copy it onto their pc or phone. It would seem like a logical step that copyright users should also be able to copy photos that they have in a digital form onto their computers or others devices they own such as phones and MP3 players. Again, this is a mixed up section which seemingly looks like the copyright owners begrudgingly relinquished the absolute minimum allowable.
Copying Cinematograph Film – Section 110AA
As previously mentioned in Senator Crossin’s speech, s110AA provides only that analogue be shifted into digital, and not digital to digital. This anomaly comes about because of the technological protection measures (TPM) placed on digital films and because it is infringing conduct to circumvent TPM. All of the other provisions are the same as the aforementioned provisions, namely, you must only make one main copy, the original must not be an infringing copy, the main copy must not be sold, leased, traded, distributed, played in public or broadcast, the original videotape must not be given away and temporary copies must be destroyed.
Analysis of 110AA
This paper would like to suggest that less than 1% of copyright users will copy videotape to digital, and in the modern technological age this is almost certainly not what format shifting provisions are supposed to be used for. Format shifting is predominately used today for use of the work on different digital devices. The provisions at 110AA are grossly inadequate for the modern day, and getting more and more dated every day. The TPM excuse is a smokescreen for the fact that the movie lobby are extremely powerful and they do not want to relinquish any of their rights to the user, unless they absolutely have to. The 110AA provision is certainly not striking the right balance between the user and the owner.
Copying in the Cloud
National Rugby League Investments v Singtel Optus is currently the law in Australia regarding both time shifting and format shifting in a cloud based storage platform. The full Federal Court said that the practice constituted infringing conduct because Optus had a commercial advantage which was not what the personal use provisions were set up for.
This decision implies that if it were a non commercial cloud storage, for a household or family to store works, in keeping with the provisions, then it might be ok. There are perfectly legitimate, technological safeguards to counteract the practice of illegal file sharing. Optus intend to appeal the decision, so the future is still uncertain.
Under all of these provisions, if a person uses a format-shifted copy for commercial gain then the exceptions no longer apply, and their actions could constitute infringing conduct. Because of these control measures, there seems no reason why the format shifting provisions could not be broadened without having a detrimental effect on copyright owners.
The broadening of the provisions could resemble the provisions that have been outlined above, namely;
- You have paid consideration for a works in good faith
- You can make copies for your own private and domestic use.
- You can shift any format to any format, to watch at any time.
- The original or the copies are not sold, leased, traded, distributed, played in public or broadcast or in any way utilised for commercial gain.
Infringing conduct is still criminal conduct, even with the broader provisions suggested. The march of technology vastly outpaces the shuffling of legislation and with the lobbying power behind copyright owners, this drama will probably unfold in the judiciary rather than the legislature.
- National Rugby League Investments Pty Limited v Singtel Optus Pty Ltd  FCAFC 59
- Copyright Act 1968 (CTH)
- Copyright Act of 1976, 17 U.S.C. § 107
- Copyright Amendment Act 2006 (CTH)
- Australia–US Free Trade Agreement, signed 18 May 2004,  ATS 1
- Commonwealth, Parliamentary Debates, House of Representatives, 1 November 2006, 39 (Duncan Kerr)
- There’s nothing worse than a muddle in all the world” Copyright complexity and law reform in Australia, Catherine Bond.
- Rebecca Giblin, “Stranded in the technological dark ages: implications of the Full Federal Court’s decision in NRL v Optus” (2012) 35 European Intellectual Property Review 632-641.
- Josh Taylor, Optus to seek TV Now High Court appeal (2012) <http://www.zdnet.com.au/optus-to-seek-tv-now-high-court-appeal-339337603.htm>
- THE SENATE COPYRIGHT AMENDMENT BILL 2006 Second Reading SPEECH Wednesday, 29 November 2006