[A2k] Australia: Kim Weatherall on "flexible dealings' exception to copyright

[Manon Ress]

http://weatherall.blogspot.com/

Wednesday, July 05, 2006
The (New Australian) 'Flexible Dealings' Exception to Copyright

About a month and a half ago - on 14 May - the Attorney-General
issued a press release, announcing proposed new exceptions to
copyright: the outcome of a long review that commenced approximately
12 months before (by the way, check out the text in the URL on that
last link - it's deliciously ironic).

I know that the press release was some time ago, and I know, too,
that the draft legislation is not out yet. But I've been thinking
about the press release a bit, lately, and in particular, the way it
would seem to indicate that this exception will look. I thought I'd
share some of those thoughts. (for other thoughts, see the Australian
Copyright Council's response, posted here).

Here is what the press release says about the proposed exception:

     The present exceptions and statutory licences that allow
copyright material to be used for specific purposes benefiting the
wider public interest will be strengthened. The Government has agreed
to include a new flexible dealing exception that will allow for:

         * non-commercial uses by libraries, museums and archives
(eg. this may allow a museum to includes extracts of historical
documents in materials for visitors);
         * non-commercial uses by educational institutions for the
purpose of teaching (eg. this may allow a school to put an out-of-
date VHS documentary onto DVD);
         * non-commercial uses for the benefit of people with
disabilities (eg. this may allow a person with a print disability to
convert a book they own into accessible text); and
         * parody and satire.

     To avoid confusion, the new extended dealing exception will not
apply to uses where an existing exception or statutory licence
already operates. Any new use falling within this exception must
comply with the standards in Australia=92s international treaty
obligations.

The interesting bit of this statement is the bolded sentence above:
that exceptions must 'comply with the standards' set by treaty. This
is a reference to the famous 'three step test' enacted in the Berne
Convention (Article 9), TRIPS (Article 13) and in the Australia-US
Free Trade Agreement too (Art 17.4.10). That test says that a country
in its laws must confine limitations or exceptions to exclusive
rights to:

     (1) certain special cases
     (2) which do not conflict with a normal exploitation of the work
and
     (3) do not unreasonably prejudice the legitimate interests of
the right holder.

The interesting question, given the wording of the press release, is
just how the three step test is going to be brought in - and what are
the implications for Australian copyright law if it is.

Here's the question. Are the 'certain special cases', required under
international law, the categories the government has enumerated (like
'parody and satire') or are courts going to be expected to identify,
within those categories, 'certain special cases'? In other words, for
the courts, under this new law, is it a two step test, or a three
step one? Is the real exception a narrower one than is stated in the
press release, or not?

It might not have been entirely clear from the press release, but a
newsletter, issued by the Attorney-General's Department shortly after
was a little more specific. It said that:

     It will also be provided that any use falling within this
exception must comply with the standards in Australia=92s treaty
obligations. That is, the use must be a certain special case that
does not conflict with a normal exploitation of the work and not
unreasonably prejudice the legitimate interests of the copyright owner.

This wording seems much stronger. Taken at face value, it seems that
the government is planning to enact all three steps as 'conditions'
of the exception. Is this an approach we should be worried about?
There are a few possible objections. Let's look at some of them,
shall we?

The first possible objection is this: do we really need to drill down
to a higher level of specificity than the ones specified in the press
release? In other words - aren't categories like 'non-commercial uses
by libraries, museums and archives' 'certain' and 'special' enough -
particularly when you take into account the latter two requirements
(non-interference with the legitimate interests of the rightsholder,
not conflicting with normal exploitation)? Does international law
really require that exceptions be drafted with no flexibility? (and
if that is the case, how do we get away with our current exceptions,
like 'fair dealing for the purposes of research or study' or 'fair
dealing for the purposes of criticism or review'? How does the US get
away with fair use, if we have to be more 'certain' than those
categories?).

If this represents a view by the Attorney-General's Department that
even more 'certainty' is required - are they right, as a matter of
international law? Please explain?

Or, is this the government trying to 'hedge its bets' - not willing
to take the risk that in fact the purposes enumerated are 'certain
special cases', they have adopted the lawyer's 'CYA' principle (cover
your ...) and decided to put in a phrase that they can point to and
say - look, your Honour, we comply with the law, honest we do? It's
not open ended. The exceptions have to be certain.

If that is the approach being taken, it's a cop-out. And while it
might solve problems when we stand in international fora, it will
cause untold judicial headaches if it ever does come to a court.

Imagine you are a judge. You are sitting on a copyright case. You are
told that you have to identify, within one of these categories, a
'certain special case'. Imagine it's a parody case. Are you supposed
to identify certain kinds of parody that are excepted? Surely, if you
put all 3 steps into the legislation, no other view is open to a
judge. They have to be more specific, because that's the assumption
underlying the legislation. They can't make one of the conditions a
nullity - can they?

Or imagine it's a library case. The library is making some
preservation type copies to migrate material from an obsolete format.
You are told by the legislation you have to identify a 'certain
special case' within the non-commercial uses by libraries exception.
Is 'preservation' a certain special case? Or is it 'preservation in
the face of obsolescence'?

See, here's the thing. We've had this long, drawn out, year long
review of copyright exceptions. Everyone's been sticking their oar
in. That's what happens in copyright these days. It's political.
Everyone has a view. And everyone has an interest. Most copyright
owner interests have been arguing for 'certainty' in the law. They've
offered detailed qualifications on any exceptions that might be
offered (for an example, see the Australian Copyright Council
submission, and look in particular at the conditions it suggested for
a private copying type exception).

That is the kind of thing that is going to be offered to an
Australian judge. It will be argued that 'certainty' practically
requires the court to create an exception that helps this institution
in this situation.

And you know what? This argument will be run again, and again, and
again. It will come up every time. And there will be a big debate
about when 'certainty' is reached. Again, and again, and again.
Instead of focusing on the real issues that should be exercising the
judge's mind - whether this use interferes too much with normal
exploitation and the copyright owner's interests. (oh, and yes,
virginia - there will be more amicus curiae submissions. In every
case. Probably from both sides. And they will have very good reason
to want to get involved).

Take a stand guys. If you think you have identified certain special
cases, reflect that, and don't include that first limb in the Act. If
you don't think you have a certain special case, why not have another
go at adding a little (and I mean a little) extra specificity. Put in
a list of the kind of things libraries might be able to do, like
preserve, use for internal administrative purposes, communicate
within the library, use new technologies - whatever it is you are
thinking about. After all, there are still the other two limbs to
protect the interests of rightsholders.

Now, let me be clear. I'm not saying that we have to spell out all
the details. I'm not saying I think we have to create exceptions
delimited to the nth degree. Some people will no doubt make that
argument: that an exception in these terms invites 'judicial
legislation'. In other words, what copyright law (like other property
law) needs is certainty, and this kind of 'open-ended' exception
doesn't provide that kind of certainty.

This objection I don't really buy. We could certainly (and will no
doubt, and should no doubt) have something of a debate about the
meaning of terms like 'non-commercial' - this can happen when we have
an exposure draft.

Allegations of 'judicial legislation' or 'uncertainty', however, seem
to be based on the premise that nothing short of nailing down the
exception to the last possible detail in legislation leads to
certainty. It often seems that this premise is attractive to our
lawmakers (and the UK law makers - see Robert Burrell and Alison
Firth's book on this).

Problem is, it ain't true. It's the kind of premise that led to the
notorious 'no-rewind' proposal (ie, the proposal to limit 'time-
shifting' exceptions to a single viewing) that elicited such laughing
disbelief the moment the press release came out.

Most law-making, and law-enforcing, involves, like, you know -
judgment. Judges do that. You know it's, like, their job. Hell, even
bureaucrats, library managers, and archivists and gallery owners make
judgments too. It appears to be a human thing. Attempts to nail
everything down - particularly when technology is moving, and
shifting, and changing - are doomed to failure (and doomed to lead to
problems for the supposed 'beneficiaries' of such exceptions: see
Hudson and Kenyon on this). Legislation can be drafted using more
open textured words than some copyright owners would argue, without
the world falling apart at the seams.

So I'm not saying the government can't create a flexible exception.
I'm not saying every detail has to be spelled out. I don't think
that's required by the 3 step test. I think we can put flexibility in
and we can avoid spelling out the details. But I am saying that if
they want to do that, then putting in the three step test - all three
limbs of it - and expecting courts to drill down further (who knows
how much further) is inviting problems.

Here's the second objection (yes, I know this post is long. It's been
building up, what can I say?). What it appears the government intends
to do is:

     * leave existing fair dealing exceptions exactly as they are;
and then
     * add the new flexible dealing exception(s), qualified by the
three step test.

Now let's take a moment to step back and think what the legislation
is going to look like when that is done. We'll have:

     * An exception (section 40) that allows =91fair dealing =85 for the
purpose of research or study=92 and which sets out a series of factors
to be taken into account - things like the purpose and character of
the dealing, the effect on the market etc;
     * An exception (section 41) which allows that 'fair dealing ...
for the purpose of criticism or review', provided an acknowledgment
is made, and a similar exception (section 42) for uses 'for the
purpose of ... the reporting of news'. Notably, these exceptions
don't come with a long list of factors, although courts tend to
consider things like effect on the market, and the purpose/character
of the dealing, as part of the analysis of whether the dealing is
'fair'; and
     * An exception for parody and satire, that is subject to the
application of the three step test, meaning courts have to assess
whether there is a certain special case, whether the use conflicts
with normal exploitation of the work, and whether it unreasonably
prejudices the interests of the copyright owner.

Now imagine writing the legal advice to the makers of The Panel TV
show. It runs a bit like a script for that show, doesn't it?

     Lawyer: Well guys, your use might be:

         * reporting news (but we'll have to look at all those old
English and Australian cases on what that means) or it might be
         * criticism or review (but we'll have to look at all those
old English and Australian cases on what that means), or it might be
         * parody or satire (but then we have to look at the
decisions of the WTO and some European courts who have interpreted
what the three step test means, to work out whether this complies
with the three step test'

     The Panel guys: Um, ok. so why are we looking at different
courts again?
     Lawyer: well, the legislation says we have to take different
things into account depending on whether this is parody or whether it
is criticism and review. We've got old caselaw on the criticism and
review and the news stuff, but this parody defence - well, it's got
this new set of conditions on it, and the only people who've
interpreted that are international courts,
     The Panel guys: So how much is that going to cost?
     Lawyer; well, we'll have to get in a consultant who knows
something about international trade law, because they'll have to read
those WTO decisions because the court is going to want some help on
what these factors mean ...'


Enough already. Made the point, yes?

Certainty? I don't think so. Flexibility? Maybe. Could this be done
in a way that didn't involve bringing in the trade lawyers? Surely.
Would that mean defining the exception to the nth degree? No, I don't
think so.

But don't hold your breath. The last few times the government has
amended the copyright act, simplicity or making things easy to work
with has not been high on the agenda (and for more on that, see my
paper on the performers' rights provisions).

There. got that off my chest.
- Kim, 7:26 PM. [Permalink] Comment?

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Manon Anne Ress
manon.ress@cptech.org,
www.cptech.org

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