On 24 November 2022, the Australian Attorney-General the Hon Mark Dreyfus KC MP announced the Attorney-General’s Department’s intention to release an issues paper for public consultation, as the first stage of a review into Australia’s current copyright enforcement regime. The broad aim of the review is to understand:
- Current and emerging copyright enforcement priorities and challenges;
- Whether Australia’s copyright enforcement regime remains relevant, effective and proportionate; and
- Whether existing enforcement mechanisms need to be strengthened, and if so, how can this be done without imposing unreasonable administrative or economic burdens.
The Copyright Enforcement Review Issues Paper (“Issues Paper“), was subsequently released on 9 December 2022. It is targeted at parties who are dealing with copyright infringement and enforcement issues in practice or who have been involved in copyright enforcement processes, including:
- Creators, creative industries organizations, and other copyright owners;
- Individual, business and institutional users of copyright material; and
- Online service providers and other intermediaries.
Public consultation will close on 7 March 2023, at which stage the Attorney-General’s Department will evaluate the effectiveness of existing copyright enforcement mechanisms and provide advice to the Australian Government.
Current and emerging copyright challenges
The Attorney-General’s Department is seeking feedback on the nature and scale of current copyright infringement challenges in Australia.
In particular, the Issues Papers cites the growing popularity of online and digital content as a major challenge for copyright owners under the current copyright enforcement regime, as it promotes issues including:
- Exacerbated creation and consumption of unlicensed and infringing digital content;
- Jurisdictional difficulties in addressing infringing activity occurring outside of Australia; and
- The development of sophisticated technological tools capable of producing, editing, manipulating and distributing original creative materials.
The Issues Paper also refers to the growing number of counterfeit goods purchased by Australians to import into Australia, noting that in 2022 the Australian Border Force seized over 145,000 counterfeit items worth more than A$66 million.
The Attorney-General’s Department seeks to understand whether these are the particular drivers of copyright infringement in practice, and whether any particular trends or changes have emerged.
Current enforcement regime
The Issues Paper lists the main enforcement mechanisms currently available for copyright owners to enforce their rights in Australia, both statute-based (under the Copyright Act 1968 (Cth)) and industry-driven (through interactions between industry participants including copyright owners and service providers ). The mechanisms are listed in the table extracted below:
Noting that many features of the current regime were enacted prior to the digital age, the Attorney-General’s Department seeks to understand how particular enforcement mechanisms are currently used to combat copyright infringement, the popularity of these enforcement mechanisms, and how the current system could be improved. In particular, it seeks feedback on:
- The effectiveness and efficiency of Australia’s current website blocking scheme as a way of combating copyright infringement and steering online consumers towards legitimate sources of content, and ways in which the scheme could be improved; and
- The effectiveness and efficiency of the authorization provisions and safe harbor scheme (and associated notice and take-down process) currently operating as mechanisms for addressing copyright infringement, and in ways in which they could be improved.
Use of the legal system and law enforcement in relation to copyright infringement
The Issues Paper acknowledges the current significant issues to access to the courts system, due to the expense and timely process of seeking legal advice and pursuing litigation.
The Issues Paper notes the Federal Court’s ‘expedited claims process’ which allows parties to seek a quicker or more truncated hearing process, as well as referring to tailored mechanisms introduced in the United States and United Kingdom to streamline consideration of low-value copyright matters. The Attorney-General’s Department seeks feedback on whether such copyright enforcement mechanisms would be valuable to copyright owners and improve accessibility to legal recourse in Australia.
The Attorney-General’s Department also seeks feedback on current civil and criminal penalties imposed on copyright infringers, as well as public awareness of the Australian Border Force’s Notice of Objection Scheme, which can prevent the importation of suspected infringing goods.
Interested parties may submit responses to these issues before 5pm on 7 March 2023. We encourage any interested clients, particularly those who deal with Australian copyright matters regularly or are artists who regularly create copyright works in Australia, to consider providing submissions before the deadline. We are able to assist in the preparation of submissions.
By Chris Round and Talia Le Couteur Scott