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2010-2011-2012-2013
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
THE SENATE
Copyright Legislation Amendment (Fair Go for Fair Use) Bill 2013
EXPLANATORY MEMORANDUM
(Circulated by authority of Senator Ludlam)
COPYRIGHT LEGISLATION AMENDMENT (FAIR GO FOR FAIR USE) BILL 2013
Outline
This Bill amends the Copyright Act1968 to remove digital locks or technical protection measures (TPMs)
that restrict accessibility for the visually impaired and disabled. It also provides a safe harbour legal
protection to universities, libraries, schools, cultural institutions and content service providers and ISPs, from
being sued for what others may do with materials they have allowed to be accessed. By removing geocodes
that enforce different prices and conditions of use of content by Australian consumers, it removes barriers to
Australians purchasing legitimate content from overseas. The Bill also introduce a fair use/flexible open-
ended exception to the Copyright Act to support digital innovation, reflect consumer expectations and
promote fair access to collections in Australian cultural institutions.
NOTES ON CLAUSES
Clause 1 - Short Title
1. This is a formal provision specifying the short title of the Bill.
Clause 2 - Commencement
2. The Bill's provisions are to commence the day after it receives Royal Assent
Clause 3 - Schedules
This clause provides that an Act that is specified in a Schedule is amended or repealed as set out in that
Schedule, and any other item in a Schedule operates according to its terms.
Schedule 1 - Amendments to the Copyright Act 1968
Schedule 1
1. Item 1 is a consequential amendment to the definition of access control technological protection
measure.
2. Item 2 provides an explanation of how access control technological protection measures limit an
individual's ability to access content.
3. Item 3 provides a note that outlines when the definition of an access control technological protection
measure applies, in those circumstances where geographic market segmentation enforces a different
price for people in different geographical areas.
4. Item 4 repeals the current definition of a carriage service provider.
5. Item 5 creates a new definition of service provider as an entity or person providing services relating to,
or connections for the transmission or routing of data, or who operates facilities for online services or
network access.
6. Item 6 is a consequential amendment to the definition of technological protection measure.
7. Item 7 creates a new definition of technological protection measures if geographic market segmentation
prevent Australians from viewing legally acquired or accessed copyright content.
8. Item 8 omits the term `carriage service provider' from Section 39B and substitutes the new term outlined
in Item 5.
9. Item 9 omits the term `carriage service provider' from Section 112 E and substitutes the new term
`service provider' outlined in Item 5.
10. Item 10 omits the Division 2AA heading of Part (V) and includes a new heading `Limitation on remedies
available against service providers.
11. Item 11 omits the term `carriage service provider' from Subsection 116 AA (1) and substitutes the new
term `service provider' outlined in Item 5.
12. Item 12 omits the term `carriage service provider' from Subsection 116 AA (1) (Note 3) and substitutes
the new term `service provider' outlined in Item 5.
13. Item 13 omits the term `carriage service provider' from Subsection 116 AB (definition of caching) and
substitutes the new term `service provider' outlined in Item 5.
14. Item 14 omits the term `carriage service provider' from Subsection 116 AC and substitutes the new term
`service provider' outlined in Item 5.
15. Item 15 omits the term `carriage service provider' from Subsection 116 AD and substitutes the new term
`service provider' outlined in Item 5.
16. Item 16 omits the term `carriage service provider' from Subsection 116 AE and substitutes the new term
`service provider' outlined in Item 5.
17. Item 17 omits the term `carriage service provider' from Subsection 116 AF and substitutes the new term
`service provider' outlined in Item 5.
18. Item 18 omits the term `carriage service provider' from Subsection 116 AG and substitutes the new term
`service provider' outlined in Item 5.
19. Item 19 details, after subsection 116AG(2), the responsibilities of public or non-profit institution to
promote and comply with copyright law, but recognises limits in the extent to which the institution is
responsible for the behaviour of persons utilising their services.
20. Item 20 omits the term `carriage service provider' from Subsection 116 AH(1) (table) and substitutes the
new term `service provider' outlined in Item 5.
21. Item 21 omits the term `carriage service provider' from Subsection 116 AH(3) and (4) and substitutes the
new term `service provider' outlined in Item 5.
22. Item 22 omits the term `carriage service provider' from Subsection 116 AI and substitutes the new term
`service provider' outlined in Item 5.
23. Items 23 omits the term `carriage service provider' from Subsection 116 AJ and substitutes the new term
`service provider' outlined in Item 5.
24. Item 24 inserts institutions after subsection 116AN (8) an exemption for visually impaired people or
institutions providing services on their behalf, to allow circumvention of technological protection
measures to access lawfully purchased content.
25. Item 25 omits the term `carriage service provider' from Subsection 195AVB and substitutes the new
term `service provider' outlined in Item 5.
26. Item 26 omits the term `carriage service provider' from Subsection 195AXI and substitutes the new term
`service provider' outlined in Item 5.
27. Item 27 repeals Section 200AB
28. Item 28 inserts a fair use provision to the Copyright Act reform which shifts Australian law to the US
model. Such a technically neutral doctrine would allow the law to respond to developments in
technology.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Providing fairer access to copyrighted information
1.1 The Copyright Legislation Amendment (Fair Go for Fair Use) Bill 2013 is compatible
with the human rights and freedoms recognised or declared in the international instruments
listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview
1.2 The purpose of the Bill is to enhance the human right to information. In particular, it
removes obstacles to blind, visually impaired and print disabled people accessing information
contained in published works in formats such as Braille, large print text and audio books.
Removing this obstacle restores the right to equal opportunity to the visually impaired.
1.3 The Bill seeks to reverse the discrimination currently experienced by Australian
consumers who are paying more for software, hardware, games, music and DVDs.
1.4 The Bill outlines the responsibilities educational institutions and libraries have to
encourage and promote the respect for copyright while protecting them from prosecution for
facilitating access to information, recognised as a right under Article 19 of the Universal
Declaration of Human rights.
1.5 The Bill also seeks to balance the rights of content holders and creators to benefit from
the commercial sale of their creative works, and the rights of citizens to share and create
information in the digital age.
Human rights implications
1.6 This Bill is an express effort to restore Australians enjoyment of Article 19 of the
Universal Declaration of Human Rights relating to the right to freedom of opinion and
expression without interference and to seek, receive and impart information and ideas through
any media and regardless of frontiers.
Conclusion
1.7 This Bill is compatible with human rights; it strengthens human rights in Australian
law that reflects the deliberations and resolutions of the UN human rights machinery.
Senator Ludlam