The Productivity Commission's final report on its inquiry into intellectual property was presented to Parliament just before Christmas.

The report makes a number of recommendations in relation to copyright, an asset of significant importance to the communications sector. Key recommendations included that:

  • The Australian Law Reform Commission's recommendation, from its 2014 report on copyright and the digital economy, to adopt a 'fair use' exception should be implemented (recommendation 6.1). Under current Australian law certain specific exemptions apply to the exclusive rights granted to creators, known as 'fair dealing' exceptions. The Productivity Commission, like the Australian Law Reform Commission before it, found that these exceptions are too narrow and that Australia would benefit from adopting a US style 'fair use' principles based exception, which provides broader exceptions to the rights granted to creators of copyright.
  • The safe harbour provisions in the Copyright Act 1968 should be expanded to cover all online service providers (recommendation 19.1). The Copyright Act provides protection against liability for copyright infringement if certain conditions are met, which vary depending on the type of activity but include adopting policies to limit ongoing infringement, such as terminating the accounts of repeat offenders. However, the protection is only provided to 'carriage service providers' as defined in the Telecommunications Act 1997 and is therefore limited largely to internet service providers. The online service providers that would receive protection under a broader safe harbour regime include cloud storage providers, search engines and organisations such as libraries and universities for particular activities. The Government consulted on an exposure draft of the Copyright Amendment (Disability and Other Measures) Bill in late 2015, which provided for this recommended expansion of the safe harbour provisions, but that Bill has not been introduced to Parliament.

Although the issues raised in the Productivity Commission report have been the subject of various reviews and recommendations to Government over a long period of time, the copyright recommendations are controversial and do not have broad support from stakeholders. The Government is consulting on the report, with the period for submissions closing on 14 February 2017, and an expected date for the Government's response in mid-2017.

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