This is an interesting article by law student Kirrily Schwarz who is currently spending some time in our office – Thanks Kirrily!

Australia has recently been named the worst downloader of illegal media per capita in the world, according to music news website Tonedeaf.

This trend is likely to worsen with continuing advances in cloud-computing technology.  In a report released in August this year, the Australian Law Reform Commission (ALRC) said that although cloud computing represents a major development, it may have dangerous consequences.[1]

Many companies are embracing the technology as part of progressive business models, creating new and efficient ways of accessing and distributing content.[2]  However, there are concerns that the current Australian Copyright Law cannot adequately cope with this rapidly changing environment.[3]

Some argue that the existing laws are too strict.  In fact, according to The Age newspaper, experts have even suggested that the existing Copyright law stifles innovation while preventing the public from enjoying creative works.  One recent example of this is the controversial case of Larrikin Music Publishing Pty Ltd v EMI Songs Australia Pty Ltd,[4] when Men at Work were successfully sued over their use of a flute riff in the song ‘Down Under’ that resembled Marion Sinclair’s 1934 song ‘Kookaburra Sits In The Old Gum Tree’.

Others, however, argue that copyright laws in Australia are far too lax, particularly considering the frightening statistic published in Tonedeaf that approximately 95% of music downloaded online in Australia is done in breach of copyright.

The critical issue currently facing the ALRC, therefore, is how to enable Australian consumers to be “lawful digital citizens”[5] while protecting the ownership rights of the industry.

The nature of the global music industry is rapidly changing.  A prime example of this is English folk-rock band Mumford & Sons’ second album Babel.  According to Tonedeaf, this album sold 600,000 hard copies and 442,000 digital copies within its first week, however, it had over 8 million streams on Spotify.  The difference between the figures simply can’t compare.

Such tremendous exposure of this album is both devastating and invaluable.  Although the publicity is cheap and the distribution is easy, record labels contend that many album sales may have been lost.  It is clear that new media, such as cloud-computing, will only increase this in future as media files become increasingly accessible, therefore rendering traditional business models archaic.

However, challenges facing the industry are not restricted to changing business models.  This week, Digital Music News published the alarming revelation that the Pirate Bay, the world’s most infamous provider of illegal downloadable media, will make their services cloud-based.  This will essentially guarantee the longevity of piracy, as websites will be able to be stored easily, transferred freely across borders without causing downtime, and kept utterly anonymous.  According to Tonedeaf, even if government officials did manage to crackdown on the Pirate Bay’s hardware and servers, the bulk of data will remain safely stored and freely accessible online.

Under current Australian law, cloud computing can also detrimentally affect perfectly legitimate websites.  In the recent case of Singtel Optus Pty Ltd v National Rugby League Investments Pty Ltd (No 2)[6] Optus was sued by Telstra, the NRL and the AFL for providing broadcasts of football and rugby matches via legitimate cloud media, which were found to be in breach of Telstra’s existing copyright arrangements.

Therefore, clearly cloud computing brings with it significant challenges.  The Australian Copyright law has become out-dated due to its severity and inflexibility, as it cannot be adapted fairly to these contemporary issues facing media outlets.

However, undeniably there are also significant benefits for the Australian media industry, particularly through ease of distribution, increased publicity and lowered costs.

The crux of the matter is that cloud-computing not only exists, but is increasing in accessibility and popularity.  According to the ALRC, Australia needs to strike a balance between promoting fair access and wide dissemination of content with new technologies, all whilst protecting the rights of the owner.[7]

Online media is not going to go away, so the Australian Copyright law must adjust accordingly.

Watch this space for future Copyright law reform updates.