Of Copyright Bureaucracies and Incoherence: Stepping Back from Australia’s Recent Copyright Reforms

Kimberlee G. Weatherall, University of Queensland, Australia

Abstract

Copyright is not just a property rights regime: it comes with a significant bureaucracy: a series of institutions and agencies which play various roles in managing copyright rights, and the relations between copyright owners and users. This has long been true. However, the workings of Australia’s copyright bureaucracy have been significantly reformed in the period 2003-2006. It is a period in which we have had several major events: the conclusion of the Australia-US Free Trade Agreement in 2004, and then the passage, first of some 90 pages of amending legislation in 2004, and then, in 2006, the 200+ page Copyright Amendment Act. In this article, I trace the history of these reforms, and discuss the outcomes, focusing not so much on the particular substantive changes that this period has wrought to Australian copyright law, but on their overall form and shape, and their import for the institutional shape of the copyright system in Australia. In numerous large and small ways, the roles of the various institutions and entities which make up the copyright system have been changed by the recent reforms. More specifically, I argue that in areas where the government had a choice it selected options that expand the role of the copyright bureaucracy. I take three examples to make this case: (1) the system for enforcement of copyright, which has potentially been transformed by the inclusion of regulatory techniques, such as strict liability offences and on-the-spot fines, more usually found in regimes such as customs or environmental law; (2) anti-circumvention law, where concerns regarding the effect of the new digital copyright laws on public access to works have been addressed by the creation of an administrative system for ad hoc resolution of complaints by a government department, and finally, (3) copyright exceptions, where in a quest for certainty, new exceptions have been written, and existing exceptions have been re-structured, in such a way as to make their application practically automatic: a style that might suit bureaucratically organised institutions such as libraries or educational institutions, but may not suit many others.