Copyright in 2016: Remix rights, online piracy and the final (maybe) word on Dallas Buyers Club

8 February 2016
Posted by Suzy Wood

Changes to copyright law were flying thick and fast last year. Here, we detail some of the major ones. Copyright affects everyone and we think it’s important to stay on top of your rights.

Dallas Buyers Club

One of the biggest cases to watch in 2015 was the Dallas Buyers Club case in the Federal Court. The film owners (Voltage Pictures) asked the court for an order demanding that internet service providers hand over the IP addresses associated with illicit downloads of the film. As IP addresses can often be easily traced back to individual subscribers, the intention of Dallas Buyers Club was to contact the people or households who had downloaded the film without permission.

The court raised concerns about what Dallas Buyers Club would do with the customer details. Specifically, the court was worried that the film owners would use a tactic known as ‘speculative invoicing’ to send letters to downloaders demanding payment of a large sum of money and threatening to file lawsuits if they did not pay.

The court placed restrictions around the content of any letters sent out by the film owners and said that Dallas Buyers Club could only access the 4000-plus IP addresses if they paid a $600,000 bond to the court. Dallas Buyers Club returned to court with a counter-offer to pay 10% of the bond in exchange for only 10% of the IP addresses. They also outlined the amounts they sought to ask subscribers for, including a ‘licence fee’ and additional damages.

The court refused those terms, saying it would be difficult to calculate the licence fee and that it would be unacceptable to claim additional damages, given that Dallas Buyers Club was only able to prove that individuals torrenting the file had uploaded a ‘sliver’ of the whole film.

Proceedings will officially end on 11 February 2016 unless Dallas Buyers Club lodges an appeal.

Meanwhile, progress on a voluntary code that would see internet service providers sending warning letters to customers who infringe copyright looks as though it is on hold. Negotiations between film studios and service providers are continuing but it looks as though this may not come into force any time soon.

Fair use

This might be the year we start to see some movement on ‘fair use’ in Australia. At the moment, if you don’t have permission to use somebody else’s copyright work, you will be liable for copyright infringement unless your use of the material falls within a list of exceptions in the Copyright Act. The list covers things like parody and satire, research, study and reporting the news.

Artists and creatives have long said that we need expanded, more flexible exceptions to copyright infringement to cover situations that fall outside the current list. If a ‘fair use’ exception is introduced, a court would simply need to consider whether a given use was ‘fair’ or not by referring to a list of ‘fairness factors’.

The Australian Law Reform Commission released a report in 2013 which supported the introduction of fair use in Australia, but we haven’t yet introduced laws acting on this recommendation.

The reforms would bring us into line with the US – which makes sense, given that much of our copyright law has been adjusted in recent years to fit in with the States.

If you’re a remix artist or you use samples in your music, this is a big one for you, so stay tuned.

Website blocking injunctions

Changes to the Copyright Act now allow copyright owners to apply to the Federal Court for orders to block access to websites that ‘facilitate’ copyright infringement. The laws are targeted at shutting down sites like Pirate Bay, in an attempt to give copyright owners some more control over digital piracy. Introduced amid some concern about the uncertain language and the potential for it to be abused, the legislation is still in its early days so we’re keeping an eye on it to see how it plays out.

General copyright streamline and tidy-up

The Copyright Amendment (Disability Access and Other Measures) Bill 2016 is currently before Federal Parliament. It hopes to introduce a range of minor amendments to copyright law in an effort to simplify and clarify parts of the Copyright Act, mostly relating to educational providers and libraries.

DISCLAIMER

The information in this article is of a general nature. It does not constitute formal legal advice, and should not be relied on as such. Please see the full disclaimer in our website terms. Please contact Studio Legal if you are seeking advice about a specific legal matter.

If you have any queries on how copyright effects your business in 2016, please give the office a call on 03 9521 2128.  Look out for our upcoming blog on our top tips on dealing with copyright in 2016.