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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 this may allow a museum to includes extracts of historical documents in materials for visitors);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 this may allow a school to put an out-of-date VHS documentary onto DVD);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’s 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’s 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 ‘fair dealing … for the purpose of research or study’ 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?

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).