Copyright Enforcement in the Digital Age - Is it fit for purpose

What you need to know

• The Attorney-General has announced a review of Australia's copyright enforcement regime.
• The Review will consider current copyright enforcement challenges in light of how copyright works are consumed in the digital world. 
• The goal of the Review is to ensure that Australia's copyright enforcement regime remains relevant, effective and proportionate.

What you need to do

• Interested parties should ensure that any submissions are submitted by 7 March 2023. 
• Keep following our updates so that you remain aware of regulatory reforms that emerge as a result of the Review.

Background

Achieving a balance between access to copyright works for the community and appropriate protection/remuneration for creators and copyright owners is a continuing issue. However, the way in which we consume copyright works has radically changed in the past two decades. As the Issues Paper states, at least 71% of Australians access content online, and this number is likely to continue to grow.

The Review is considering whether the current legislative regime adequately responds to the challenges and opportunities the online world presents in enforcing copyright.

The Review

On 24 November 2022, Australian Attorney-General Mark Dreyfus announced a review of Australia's copyright enforcement regime. The Attorney-General's Department has now released a Copyright Enforcement Review Issues Paper, outlining the issues the Review seeks to address and the questions on which input is being sought. A 12-week public consultation period has now commenced and will conclude on 7 March 2023. The consultation is open to the public but input is particularly sought from those who are dealing with copyright infringement and enforcement issues in practice, or have been a party to copyright enforcement processes.

In his announcement, the Attorney-General highlighted the importance of protecting royalty payments, particularly in light of the cancellation of live performances due to the COVID-19 pandemic. The Attorney-General emphasised that royalty payments are 'vital to maintaining a robust copyright system and a healthy environment for artists.' More generally, the announcement recognises the need for an effective copyright system which is attuned to technological developments and protects copyright owners from infringements.

Current copyright infringement challenges

The Issues Paper highlights the challenges brought about by technological advancements. In particular, there has been increased demand and proliferation of digital and online content. Digital platforms and services can create challenges for copyright owners as they can be used as a tool to illegally upload online content such as TV shows, movie, music or live sport. Online marketplaces and e-commerce platforms may also be used to offer artworks or other counterfeit products.

The Issues Paper also notes that online content distribution allows consumers to access global markets and places pressure on copyright owners to monitor and take action against infringement globally. This is particularly challenging because intellectual property rights are granted on a country by country basis and the scope of those rights differ.

Likewise, companies that offer digital services internationally may face difficulties complying with the different copyright enforcement regimes across different jurisdictions. The Issues Paper notes that consumers may also have difficulty distinguishing between lawful and unlawful ways of accessing and using copyright materials. 

The Issues Paper further recognises that copyright infringement proceedings are typically complex entailing large monetary, time and resource costs in a system which is unfamiliar and intimidating to many.

The Attorney-General's Department is seeking to understand the challenges faced by industry actors, changes and trends in infringement and the scale, economic impact and drivers of copyright infringement. 

The copyright enforcement framework and its effectiveness

The Attorney-General's Department has sought feedback from industry participants through fourteen questions framed under the following three topics.

Industry-driven mechanisms

• voluntary notice and takedown measures;
• working with industry participants and making use of industry-developed tools, including automated content recognition/identification or screening tools offered by certain digital platforms;
• entering into commercial arrangements with those who seek to use copyright material, including where copyright infringement has already occurred; and
• alternative dispute resolution, including mediation.

The Attorney-General's Department is seeking to understand whether the current industry-led mechanisms are appropriate and the factors which influence industry actors' decisions on what actions to take. The Department is also seeking to understand the sharing of costs, benefits and risks between different parties and whether there are any ways in which industry participants could work together more effectively or efficiently.

Statute-based mechanisms

There are a number of statute-based enforcement schemes which include:

• the 'website blocking scheme' established under s 115A of the Copyright Act 1968 (Cth) (the Copyright Act). This scheme allows copyright owners to apply to the Federal Court for an injunction requiring carriage service providers to block access to overseas websites which have the primary purpose or effect of infringing copyright or facilitating copyright infringement. The injunctions may also be applied to the search results of online search engine providers. While the website blocking scheme has been well-utilised since its introduction, technological developments have also increased the accessibility of tools such as VPNs and DNS services which allow access to domains that may otherwise be blocked;
• the authorisation liability scheme whereby a person or entity who authorises the doing of an infringing act may be liable for copyright infringement; and
• the safe harbour scheme established under Part V, Division 2AA of the Copyright Act. This scheme offers limited legal protection to carriage services providers and specific categories of online service providers in the public sector by protecting them against financial liability (for example when content is automatically cached) and limiting the remedies available to copyright owners. The provider must satisfy certain conditions in order to be eligible for the safe harbour scheme, including compliance with industry codes and the scheme's statutory notice and take-down procedures in the Copyright Regulations 2017. 

The Attorney-General's Department is seeking to understand the effectiveness and efficiency of these schemes and whether these schemes can be improved.

Use of the legal system and law enforcement in relation to copyright

Copyright owners can commence legal action in relation to copyright infringement in the Federal Court and the Federal Circuit and Family Court. Copyright owners may also engage with the Australian Border Force (ABF) under the 'Notice of Objection Scheme' which allows the ABF to seize goods which are suspected of infringing copyright. The Issues Paper notes that in the past 12 months, the ABF seized over 145,000 counterfeit items worth more than $66 million.

The Attorney-General's Department is seeking to understand the factors which determine whether to take these actions, whether these avenues are suitable and effective and whether there are any ways in which the current system could be improved.

We know that Australia will often look to its international counterparts in the United States and United Kingdom for regulatory reform. Both of these jurisdictions have introduced more streamlined approaches to dealing with lower-value copyright claims – the Copyright Claims Board in the United States, and the Intellectual Property Enterprise Court in the United Kingdom. These approaches reduce the time and cost barriers involved in copyright litigation and a similar approach may be implemented following the Review.

Next Steps

This Review is an important opportunity to voice perspectives on how the current system is operating and provide input on options for improvement. All interested parties should consider filing submissions so as to shape any amendments to the current regime.

We will continue to provide updates as the Review continues.

Authors: Nina Fitzgerald, Partner; Imogen Loxton, Senior Associate; and Karen Wang, Graduate.