| 5. Extension of 39A: warning notices to computers in libraries |
| 5.1 |
The DA Bill extends the operation of the section 39A warning notices to cover computers in libraries as well as photocopiers. Section 39A currently provides that libraries and archives (including the body that administers them and the officers in charge) will not be liable for authorising an infringement of copyright simply because somebody uses a photocopier on its premises to make an infringing copy. The DA Bill amends this section to give it broader and more technologically neutral application to 'machines' in libraries by replacing 'a machine for the making, by reprographic reproduction of copies of documents' with 'a machine (including a computer)'. |
| 5.2 |
A new section 104B is also added to extend this provision to the copying of audio-visual items on library machines/computers (ie not just 'works' in a narrow sense). |
| 6. Temporary copies |
| 6.1 |
The DA Bill proposes to insert a new section 43A into the Act which creates an exception to infringement for temporary reproductions made in the course of communication. The new provision provides that copyright in a work (or adaptation) is not infringed by making a temporary reproduction of the work (or adaptation) 'as part of the technical process of making or receiving a communication';. This is qualified by a new subsection stating that the exception does not apply where the making of the communication is itself an infringement. |
| 6.2 |
Unlike the exposure draft, this provision makes no reference to 'looking at material on a computer screen';. The Explanatory Memorandum does, however, state the Government';s intention that the exception is intended to cover 'browsing'; copyright material, 'including copyright material that involves the production of sound';. |
| 6.3 |
The Explanatory Memorandum also states that, under the exception, 'reproductions made in the course of certain caching would not be caught by the existing reproduction right'. It does, however, define 'caching'; simply as 'the process whereby digital works are copied as part of the process of electronically transmitting those works to an end user';. |
| 6.4 |
Unfortunately, the Explanatory Memorandum reflects a confusion about the difference between excluding temporary copies from the scope of the reproduction right and creating an exception to infringement for temporary copies. In different places, the Explanatory Memorandum claims that section 43A does both of these things (which is impossible). In fact, the new section is still drafted as an exception, which gives rise to an implication that temporary copies do fall within the scope of the reproduction right and would (but for this new exception) expose the maker of any such copies to the risk of liability for infringement. |
| 6.5 |
The consequence of drafting section 43A as an exception is that all other temporary copies not addressed by a specific exception will now be much more likely to infringe the reproduction right (unless licensed). For example, temporary copies of works stored in computers and other electronic devices during normal use or playback (some minidisc players have a 40 second buffer) may now infringe copyright. For libraries, this could mean that digital copies made and 'stored' temporarily inside digital photocopiers will be regarded as reproductions in material form. |
| 6.6 |
The provisions of section 43A are repeated in section 111A for audio-visual items (eg films and sound recordings). |
| 6.7 |
The problems with these provisions can be addressed by redrafting sections 43A and 111A to state that temporary copies made as part of the technical process of making or receiving a communication 'are not reproductions in material form'. This approach leaves open the question whether other temporary copies are reproductions in material form. |
| 7. Library to user copying - section 49 |
| 7.1 |
The DA Bill includes a number of amendments to section 49 (which deals with library-user exceptions), including:
- Changing 'copy' to 'reproduction' in various places to confirm that digital copying is covered (nb 'reproduction' will be defined in section 21 to cover digital copying, including hardcopy-to-digital and digital-to-hardcopy).
- Confirming that, under this section, libraries can only copy articles and other works from publications held in the collection of a library or archives. It is hard to see when this would not be the case (although the exclusion of libraries in 'for profit' organisations will have an impact in this context), but the change has been added to remove any risk that a library might copy works which no library had 'acquired' for its collection (which was a concern expressed by CAL and others). This should not present any significant problems for libraries (nb the words 'a library or archives' are critical to this interpretation).
- Creating a new exception allowing libraries and archives to make articles/other works acquired in electronic form available online to users within the premises of the library or archives, provided that the library equipment through which users access that material does not allow the users to communicate or make electronic reproductions of the work (see new subsection 49(5A)). This provision only applies to material acquired in electronic form, not material converted to electronic form by a library. It does, however, allow users to print out a hardcopy of the material they access, where that hardcopy would be covered by fair dealing. This is an improvement on the exposure draft, which would not even have allowed hardcopy printing facilities to be provided by the library.
- Adding an extra requirement when libraries make and communicate electronic reproductions under section 49 that, on or before communicating the material, the user is notified that the material is protected by copyright and has been reproduced under section 49 (see new subsection 49(7A)). This notice may also need to contain other prescribed information (presumably to be set out in the Regulations). According to the Explanatory Memorandum, the notice does not necessarily need to be attached to or embedded in the electronic reproduction that is transmitted to the user. The notice must simply be brought to the user's attention on or before transmission.
- Confirming that libraries and archives must destroy any electronic reproductions held by the library/archives 'as soon as practicable' after they are communicated. This is intended to address CAL's claim that libraries would be able to use the new provisions to create huge electronic databases of works.
- Confirming that libraries and archives can 'supply' works under section 49 by way of online communication without infringing the communication right.
|
| 7.2 |
These changes confirm that the library-to-user exceptions will continue to apply in the digital environment without unreasonable additional limitations on their scope. On balance, the changes represent a reasonable outcome for libraries. However, the exclusion of libraries in 'for profit' organisations from relying on section 49 (as amended) overshadows many of the positive aspects of these changes. |
| 8. Library to library copying - section 50 |
| 8.1 |
The DA Bill also makes similar amendments to section 50 (which deals with library-library exceptions). For example:
- Changing 'copy' to 'reproduction' in various places to confirm that digital copying is covered (see comments above).
- Confirming that, under this section, supplying libraries can only copy articles and other works from publications held in their own collection (it is unlikely that this requirement will not be met).
- Confirming that libraries and archives can 'supply' works under section 50 by way of online communication without infringing the communication right.
|
| 8.2 |
The most significant changes to section 50, however, are the changes to the 'commercial availability' test in subsection (7A). The DA Bill splits this into two new subsections (7A) and (7B) and applies a different commercial availability test depending on whether the material copied is held by the library in hardcopy or electronic form (nb copies supplied to Parliamentary Libraries appear to be a special case and are not affected by the commercial availability test at all). |
| 8.3 |
For copies made from works in hardcopy form, the old rules continue to apply (eg the library may not copy the whole or more than a reasonable portion of a book unless the library officer makes a declaration that, after reasonable investigation, he or she is satisfied that a (new) copy cannot be obtained within a reasonable time at an ordinary commercial price). |
| 8.4 |
For copies made from works in electronic form, however, a new and stricter test will apply. Unlike the hardcopy test, the test for works in electronic form applies to all works (including journal articles), and applies no matter how much of the work or article is to be copied. Thus, if a request is made by a library for a copy of a single article from an electronic copy held in another library (or even a single page of some other work), the supplying library cannot reproduce and supply from the electronic source material unless the library officer makes a declaration that, after reasonable investigation, he or she is satisfied that 'the work' cannot be obtained within a reasonable time at an ordinary commercial price. |
| 8.5 |
This new test gives rise to a number of questions. What is 'the work' to which the commercial availability test applies? If a publisher is prepared to sell a 'bundled' version of a work at great expense (which is nonetheless the 'ordinary' cost of that bundle), does this mean that the 'work' is commercially available and cannot be copied? What happens if a particular 'work' is commercially available, but the rightsholder will not sell a smaller part of the work (eg a chapter) requested by the user. Does the user have to buy the entire work? There are no clear answers to these questions in the Bill. |
| 8.6 |
This aspect of the Bill will require further consideration and discussion to determine the likely practical impact of the proposed amendments. It is also worth noting that there is no mention of the 'contracting out' issue as it applies to these provisions. In other words, it appears that any rights a library has to copy electronic source material under this provision could be overridden by contractual restrictions set out in a licence agreement with the publisher/supplier of that material. Licence agreements can, on the other hand, grant users broader rights than they have under Copyright Act, if the parties can reach agreement about the scope of those rights. Assuming that any such licence agreement is binding on a library (which some 'shrinkwrap' licences may not be), the terms of that agreement will need to be considered to determine what copies can be made and supplied. |
