A Comment on the Copyright Exceptions Review and Private Copying

The issue of private copying, and how it fits with copyright law, has hit front and centre of the current copyright exceptions review. While copying is widespread, and iPods are popular, under current Australian copyright law, almost all private copying - including time-shifting and format-shifting (or space-shifting) is an infringement of copyright. It appears that one aim of the current copyright exceptions review is to address this mismatch. The relationship between copyright and private copying is a highly complex issue, particularly in a digital environment. A brief paper cannot hope to cover all the relevant issues involved in a manner which is anywhere near comprehensive. The aim of this paper is twofold. First, it provides a set of seven premises for assessing any proposed solution. Second, it uses these premises, and some information about systems in other countries, to offer comments on three major issues in reaching a solution. In general terms, the attitude of the writer is that specific fair dealing defences will be less useful than a more general, open-ended exception based on the principles of fair use, and that a private copying levy is unlikely to offer the best solution, involving, as it would, significant costs and opportunities for rent-seeking with little likely benefit for consumers as the use of digital rights management increases