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ALIA copyright service: the digital agendaALCC response to the Copyright Amendment (Digital Agenda) Bill 1999 Exposure DraftThe following is a response to the Copyright Amendment (Digital Agenda) Bill 1999 Exposure Draft and Commentary from the Australian Libraries Copyright Committee (ALCC).
Introduction The ALCC notes that this policy determination is in line with the Preamble to the WIPO Copyright Treaty, and the Agreed Statement on Article 10 of the Treaty which confirms that existing exceptions may be carried forward into the digital environment, and new exceptions and limitations may be devised as appropriate. As requested by the Government, in this response, the ALCC will provide comment on the technical efficacy of the proposed amendments in light of the Government's policy objectives as expressed in the Commentary document. Whilst the ALCC supports the general policy expressed, there are some areas where clarification on the operation of the amendments is sought in order to ensure the effective implementation of the policy. In this response the ALCC will focus primarily on the amendments relating to the fair dealing provisions and the exceptions for libraries and archives. Whilst the ALCC will make brief comment on other aspects of the Bill, the ALCC position on the following issues is expressed in the response to the Exposure Draft Bill made by the Australian Digital Alliance (of which the ALCC is a member):
Fair dealing The ALCC is concerned however that the restrictions on the proposed s. 49(5A) exception limits the operation of the fair dealing provisions in relation to the communication right (as well as the reproduction right) to a significant extent (see discussion below). The ADA is supportive of the Government's attempt to extend the operation of the reasonable portion into the digital environment, albeit in a limited manner. However, the ALCC has a number of comments to make on the practical application of the test. It is understood that the definition of 'reasonable portion' will be extended to apply to copies made from literary, dramatic and musical works in electronic form where:
Due to the requirement that a published hardcopy equivalent of the electronic work must be in existence, it is the ALCC's submission that there is no reason why the same reasonable portion test (1 chapter or 10 per cent) cannot continue to apply. Is it the intention of Government that different amounts of what is effectively the same work will be able to be copied, depending on whether the work from which the copy is being made is in hardcopy or electronic format? This result seems anomalous. The ALCC notes that the quantitative test as outlined in the Bill only applies to works which are made up of 'words', and not to musical notes or other characters or figures. The ALCC would also ask that some clarification be provided by way of interpretative material as to what theterm 'conveniently available' is intended to mean. In terms of the limited scope of the application of the reasonable portion test in the digital environment, the ALCC submits the following comment. At present, there are several provisions in the Act where a library, archives or educational institution must make a determination as to what constitutes a reasonable portion of a work (see ss. 49(5), 50 (7A), and 135ZL for example). The test as it is extended in the Bill provides no guidance as to what constitutes a reasonable portion of an electronic work where there is no printed hardcopy edition. In the absence of any guidance as to how to make such determinations, libraries may be forced to take an overly cautious approach and cut back services to users due to the real risk of incurring liability for infringement.
Exceptions for libraries and archives The ALCC welcomes the exception to the new communication right, which will allow libraries to make material acquired in digital form as part of a library's collection, available to the public, albeit in a limited sense, through the proposed s. 49(5A). The ALCC notes, however, that restricting access to the premises of the library may seriously disadvantage those Australians not within easy access of a library, museum or gallery, such as those living in remote and rural areas. In this, the ALCC notes the important role that ss. 49 and 50 will play in providing access to digital material to Australians who are not able to conveniently visit the premises of a library or archives. It is understood that under the proposed exception to the new communication to the public right libraries, could only provide access to the specified digital material on 'dumb' terminals which are:
With regard to (a), the ALCC has some concerns as to the lack of guidance provided as to what 'on the premises' actually means. In the case of Australia's cultural institutions, including archives and galleries, the use of the term 'on the premises' requires some clarification. Most cultural institutions have more than one reading room and these can often be situated considerable distances apart. For example, the National Archives has reading rooms and repositories in each capital city, and the Public Record Office Victoria has reading rooms in the city and at Laverton and Ballarat. In the case of educational institutions, the situation is slightly different, networked institutions spread over several sites are already able to provide guarantees as to the bona fide nature and defined parameters of the user group that would have access to the material in question. Nonetheless, this virtual community may be spread over a vast geographical area, at a number of sites and campuses around the country. It is hoped that 'on the premises' or 'on-site' is intended to cover each of the sites in these examples. It may be that some clarification on this could be provided in the interpretative materials accompanying the Amendment Act. With regard to (b), it must be noted that the limitations on this exception will prevent library users from being able to rely on the fair dealing provisions to make or communicate a copy of any part of a work acquired by the library in digital form. Whilst users will be able to obtain works or parts of works through ss. 49 and 50, this service will only be available to users whose purposes are either research or study. Much of the material under discussion such as electronic journals available only on subscription, will not be practically available to users other than through a library. As such, the ALCC queries whether the Government's policy objective in applying the fair dealing exceptions to the proposed new right of communication to the public, as stated in paragraph 36 of the Commentary, is effectively implemented. As noted by the Copyright Law Review Committee in its Report on the Simplification of the Copyright Act and Part 1, 'in the public interest, limited royalty-free copying of copyright materials by libraries and archives is an important exception to the exclusive rights of copyright owners that should be maintained' (paragraph 7.09 of the CLRC Simplification Report and Part 1). The ALCC therefore welcomes the Government's statement at paragraph 43 that 'existing exceptions for library copying should apply to the electronic reproduction and communication of copyright material for users and other libraries and archives'. As noted above, these provisions (ss. 49 and 50) will become crucial in providing equitable access to information in light of proposed limitations on a library's ability to make digital works available, particularly to those not able to attend the premises of the library. The ALCC notes in this regard, that the amendments implementing this policy decision will not have the effect of broadening or extending the current operation or the scope of the provisions. As outlined in paragraph 43 of the Commentary, these amendments will simply clarify the fact that libraries will be able to use new technologies and distribution mechanisms to provide access to copyright materials. This access is still restricted by the same conditions and limitations as currently apply in the print environment to ensure that the legitimate interests of copyright owners are not unreasonable prejudiced. The ALCC is aware that copyright owners claim that as the proposed amendments will allow libraries to distribute documents utilising new communications technologies, the legitimate markets of copyright owners will be destroyed. It is claimed that libraries will be able to provide free copies in direct competition with publishers attempting to market articles and parts of articles for profit in electronic form. It is also understood that copyright owners further claim that library copying under these provisions will increase massively if the proposed amendments are implemented. There are several reasons why neither of these claims can be substantiated or realistically sustained. Sections 49 and 50 confer rights on libraries to make copies for users and other libraries in limited circumstances. For the purposes of illustrating the inbuilt limitations and constraints on copying done under this section, an extract from Issue 8 of the Australian Council of Libraries and Information Services (ACLIS) Copyright Bulletin has been attached (Attachment A). Attachment A provides a comprehensive step by step guide for libraries wishing to rely on sections 49 or 50. As is evidenced by the relative complexity of the procedure, these provisions do not grant libraries unlimited free copying rights. It is particularly important to note that in some circumstances, officers of the library can be held criminally liable if the provisions are not complied with (see ss. 203A and 203H of the Copyright Act). It is essential to note that the proposed amendments contained in the Bill will not alter any of these requirements. Copying under these provisions will not be subject to any lesser constraints than those which currently apply. Despite the fact that libraries have been utilising email request and declaration systems for some years now, and have been delivering documents largely via facsimile (a relatively fast and convenient method of distribution), there is no evidence of a massive increase in the volume of copying done in reliance of these provisions. Conversely, there has, however, been a phenomenal growth in the market for commercial document supply in recent years (licensed operations where royalties are paid to copyright owners for copies made and supplied). As commercial document supply companies are not constrained by the limitations and conditions that libraries must operate under in making copies under ss. 49 and 50, they can supply documents efficiently, quickly, and for any purpose. It is for this reason that the services provided by commercial suppliers will always be a more attractive option than obtaining a copy through a library. The ALCC therefore strongly disputes claims made by copyright owners as to the 'inevitable' increase in the amount of free copying that will be done by libraries under the amended provisions and urges the Government to enact the proposals as they are currently formulated in the Exposure Draft Bill. The ALCC strongly endorses the Government's decision in relation to the extension of s. 39A of the Act to limit a library's liability for authorising infringements that occur on computer terminals supplied by the library. The ALCC does question whether this amendment will apply to other equipment supplied by the library, and in particular, to digital scanners. The ALCC welcomes the proposed amendments outlined in paragraphs 50 to 52 of the Commentary in relation to the making and communication of unpublished works in libraries and archives. The ALCC supports the form of the proposed amendments to ss. 51AA, 51A, 110A, and 110B. A question is raised, however, as to why, under the proposed s. 51A(1)(a), libraries and archives will not be able to make digital copies of original works available to the public under the same conditions as apply to the proposed s. 49(5A). It is hard to determine how the legitimate interests of the copyright owner would be unreasonably prejudiced by allowing such access.
Exception for temporary copies
Enforcement measures and circumvention devices As stated above, the ALCC position on this issue is expressed in the response to the Bill from the Australian Digital Alliance. In addition to that position, however, the ALCC would like to point out that it supports the approach taken in the Exposure Draft Bill in favour of the approach taken by the United States in the Digital Millenium Copyright Act (DMCA). There are a number of reasons for this. The DMCA does not permit libraries and archives to access circumvention devices in order to carry out non-infringing uses. Whilst the DMCA does provide a specific exemption for non-profit libraries, archives, and educational institutions, it merely allows brief access to a commercially exploited copyright work in order to make a good faith determination of whether or not to acquire the work. This provision is extremely limited and would clearly not give effect to the Government's policy objective (expressed at paragraph 93 of the Commentary) that the sale of a circumvention device to a non-profit library for use under the library and archive provisions should not fall within the operation of the enforcement measure provisions. Should the Government decide to follow the approach taken in the DMCA, a much more detailed and complex set of specific exceptions would be required. These exceptions would take time to formulate, and considering their importance, the ALCC contends that they would require some form of public consultation. It should be noted that the complexity of the DMCA has been widely criticised. The addition of a complex set of specific exceptions would also appear to be directly contradictory to the Government's commitment to a technology-neutral Copyright Act. In contrast, the approach that has been taken in the Exposure Draft Bill is broad, flexible and technology-neutral. For this reason, subject to comments made in relation to the need for further clarification as to how manufacturers and distributors of circumvention devices can avoid being 'reckless' as to whether devices will be used for infringement, the ALCC supports the approach taken in the Bill.
Computer software protection and exception for backup copying
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