| 1. Overview |
| 1.1 |
The Copyright Amendment (Digital Agenda) Bill 1999 ( DA Bill ) was released on 2 September 1999 and presented before the House of Representatives. The Government also released an Explanatory Memorandum and a copy of the Attorney-General's Second Reading Speech. |
| 1.2 |
The DA Bill is based largely upon proposals in the Copyright Reform and the Digital Agenda discussion paper (dated July 1997) and an exposure draft Bill released in February 1999. Although representatives of the Government have consistently asserted that the exposure draft was only being 'fine tuned' during the months leading up to the release of the DA Bill, the Second Reading Speech now states that the Bill has been 'extensively revised'. |
| 1.3 |
The Second Reading Speech also states that the reforms in the DA Bill are 'consistent with' the new international standards in the WIPO treaties - the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty. |
| 1.4 |
Issues addressed in the DA Bill include the following:
- Replacement of the current broadcast and cable diffusion rights with a broad right of communication to the public (which will also incorporate the right to make copyright material available online).
- Confirmation that fair dealing applies to material in digital form and to the new communication right.
- Confirmation that exceptions for libraries and archives apply to digital copying and communication technologies and to material in digital form, and clarification of the scope of these exceptions.
- Changes to the definitions of libraries and archives (exclusion of libraries in for profit organisations, and inclusion of certain galleries and museums).
- Confirmation that the statutory licence scheme for educational copying applies to digital copying and communication technologies and to material in digital form.
- Introduction of exceptions for certain temporary copies made in the course of online communications (which, apparently, is intended to cover browsing), but not other temporary copies.
- Introduction of new provisions to cover technological protection measures. These provisions take the form of criminal sanctions and civil remedies against the manufacture of and various dealings in circumvention devices, and the provision of circumvention services. There are also specific provisions against making and dealing in unauthorised subscription broadcast decoders.
- Introduction of new rights management information provisions. These provisions take the form of criminal sanctions and civil remedies against the intentional removal or tampering with electronic rights management information.
- Clarification of Internet Service Provider ( ISP ) and carrier liability for directly infringing and for authorising infringements of copyright.
- Codification of liability for 'authorising' copyright infringement generally.
- Introduction of a statutory licence scheme for the retransmission of underlying works etc including in broadcasts, eg by subscription television providers. Broadcasters will also have the right to control retransmission of their broadcast signals.
- Implementation of various outstanding recommendations from the CLRC's report on Computer Software Protection.
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| 2. Summary of ALCC/ADA issues |
| 2.1 |
The issues of most relevance to ALCC/ADA are:
- library definition;
- extension of 39A warning notices to computers in libraries;
- temporary copies;
- library to user copying - section 49;
- library to library copying - section 50;
- copying unpublished works in libraries - section 51;
- copying works in Australian Archives - section 51AA;
- copying works for preservation and other purposes - section 51A;
- circumvention devices;
- educational statutory licence - Part VB; and
- ISP liability.
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| 2.2 |
These aspects of the DA Bill are explained below, with initial comments on the implications for ALCC/ADA. |
| 3. Key problem areas - ALCC/ADA |
| |
The key problem areas in the DA Bill from the ALCC/ADA perspective are:
- the unexpected changes to the library definition, which result in the exclusion of libraries in 'for profit' businesses and organisations;
- the restrictive and uncertain scope of the library-to-library exception (section 50) when copying from electronic source material, particularly the requirement to check the commercial availability of a work no matter how small the 'portion' requested;
- the possibility that section 51A (if read narrowly) might not permit digital preservation, replacement or 'administrative purpose' copies to be made available online within library premises to anyone other than 'library officers';
- the fact that circumvention devices will only be available for specific 'permitted purposes', which does not include fair dealing nor some of the library exceptions (eg sections 51, 51AA, 51A); and
- dealing with the temporary copies issue in a way which implies that temporary copies do fall within the scope of the reproduction right.
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| 4. Library definition |
| 4.1 |
The DA Bill includes a number of changes which have the effect of excluding all libraries located in 'for profit' businesses from relying on the library exceptions. It does this by:
- adding a new definition of 'library' in subsection 10(1) which states that 'library' does not include 'a library owned by any person or body carrying on business for profit if the person maintains the library mainly or solely for the purposes of that business' (libraries in 'for profit' educational institutions are, however, still included within the definition of library as a special case);
- repealing the current section 18 which states that libraries in 'for profit' businesses are still 'libraries' (provided that the library itself is not conducted for profit); and
- removing the current subsections of the library provisions (sections 49 and 50) which prevent libraries from relying on these exceptions where the library itself is conducted for profit (which, by virtue of the new definition, is redundant).
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| 4.2 |
The Explanatory Memorandum confirms that the intention is to exclude:
- libraries operated by for profit organisations, such as corporations and law firms; and
- libraries owned by business organisations made available for use by members of a particular profession where the organisation maintains the library mainly or solely for the purposes of that business.
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| 4.3 |
This change is completely unexpected and has never been part of 'digital agenda' discussions (other than as part of CAL's long standing and wide ranging anti-library lobbying). It is also completely inconsistent with the Government's claims that the exposure draft was only being 'fine tuned'. For these reasons, it is difficult to understand the basis on which it has been included. |
| 4.4 |
One possible explanation is that the Government (or parts of it) did not realise that this would have significant negative consequences for the library system. It is likely to have been characterised as 'minor' on the basis that it targets only a few smaller libraries in law firms and companies (not 'real' libraries in the not for profit educational and research sector). It may also have been characterised as a 'bone' to be thrown to CAL in response to its argument that businesses who profit from information should pay licence fees to copy it. |
| 4.5 |
The problem is that this change will split the library system in half and create all sorts of unnecessary administrative and other problems. For example:
- Not for profit libraries will no longer be able to request documents from corporate libraries under section 50 (eg if a university law library requires an article held only in a law firm library, or if a Parliamentary library needs a copy of an article held only in a corporate library), and vice versa.
- Scientists and researchers in private sector companies will no longer be able to make copying requests of their own internal libraries under section 49, even though they may have a right to make copies themselves under fair dealing. This will be a particular problem for employees carrying out research in remote areas, eg a geologist carrying out field research for a mining company.
- All other library exceptions (eg copying for preservation purposes) will no longer apply to corporate libraries.
- No corporate library will be able to rely on section 39A warning notices above photocopiers (or computer terminals) to reduce its risk of liability for authorising infringement.
- There is no adequate alternative means for corporate libraries to clear rights if this change is made. A voluntary licence from CAL does not provide blanket coverage for all rights holders and CAL does not generally indemnify licensees for copying of works not included in its repertoire. The scope of CAL's authority to license digital copying is also quite unclear.
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| 4.6 |
The DA Bill also amends the definition of 'archives' by adding a note stating that museums and galleries are examples of bodies that could have collections covered by the definition of 'archives'. It appears that the intention of this amendment is to confirm that many museums and galleries will fall within the current definition of 'archives' (see subsection 10 (4)). |
