| 9. Reasonable portion |
| 9.1 |
The DA Bills seeks to clarify (to some extent) the meaning of a 'reasonable portion' when copying from certain works in electronic form. This is relevant to users making copies of works in electronic form under the fair dealing provision (s 40). |
| 9.2 |
A new subsection 10(2A) provides that no more than 10% of the number of words in or no more than a single chapter of certain electronic works (whichever is greater) will be considered a reasonable portion. This provision only applies, however, to published dramatic works and published literary works (other than computer programs or an electronic compilation, such as a database). It does not apply to musical or artistic works. |
| 9.3 |
To make it clear that a person cannot rely on fair dealing to copy one 'reasonable portion' now, then another 'reasonable portion' of the same work at a later date, a new subsection (2C) has been added. |
| 10. Section 51 |
| 10.1 |
Subsection 51(1) currently allows unpublished works (eg manuscripts) held by libraries or archives to be copied for research or study or with a view to publication provided that 50 years have passed since the author's death and 75 years have passed since the work was made. The provision covers copying by users and copying by libraries and archives on behalf of users. The DA Bill amends this provision by:
- removing the requirement that 75 years has passed since the work was made;
- confirming that digital copies can be made;
- confirming that copies can be supplied by way of online communication; and
- introducing a broader definition of 'manuscript' which includes material in electronic form 'as initially prepared by the author'.
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| 10.2 |
These changes are partly based on Part 1 of the CLRC Report on Simplification, and update the current provision to the benefit of libraries, archives and users. |
| 10.3 |
Subsection 51(2) is also updated to cover digital copying and supply by way of online communication. This provision deals specifically with copying and supply (for research or study purposes) of unpublished theses held by archives or university libraries. |
| 11 section 51AA |
| 11.1 |
Subsection 51AA deals specifically with copying of works kept in the collection of the Australian Archives for preservation purposes and for supply to its regional offices. |
| 11.2 |
The DA Bill updates this provision to cover digital copying and online communication. |
| 12 Section 51A |
| 12.1 |
Section 51A currently sets out exceptions that cover copying by libraries and archives for preservation, replacement and 'medium shifting' purposes. The DA Bill includes a number of amendments to this section which, according to the Explanatory Memorandum, are intended to expand its scope, particularly in relation to digital copying and communication. |
| 12.2 |
First, the preservation/replacement exception is amended to:
- confirm that digital copies can be made;
- remove unnecessary technology-specific language (ie 'microform copy'); and
- allow the online communication of preservation/replacement copies.
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| 12.3 |
Second, the 'medium shifting' provision is replaced with a new 'administrative purposes' provision which:
- extends the provision from 'microform only' to all forms of copying and reproduction, including digital;
- permits libraries/archives to copy for 'administrative purposes' (which is probably intended to cover 'medium shifting' copying such as conversion of bulky material like newspapers to a more convenient and less bulky format); and
- permits these copies to be made available through computer terminals on library/archives premises, but only to officers of the library/archives (ie material copied under this 'administrative purposes' exception can not be made available to other library users, even within the library premises).
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| 12.4 |
Third, a special new exception is created to allow preservation copies of 'original artistic works' to be made available online through computer terminals on library/archives premises (nb this should also cover many not-for-profit galleries and museums), provided that those terminals are 'view only' (ie they can not be used to print, transmit or save to disk). |
| 12.5 |
A number of issues arise under these provisions, including as follows:
- By extending the preservation/replacement exception in subsection (1), it appears that libraries/archives could end up with very broad rights to communicate online digital preservation/replacement copies. It could be argued that this extends to making available both on and off premises (although this is not clear and is probably not intended);
- Although the administrative purposes exception will now allow medium shifting to digital formats (not simply microform), the benefits of doing so are frustrated by the fact that the provision does not permit digital copies to be made available to users other than library officers;
- There will no longer be a requirement to destroy the 'original' once an 'administrative purposes' copy has been made (which is different from the current 'medium shifting' provisions);
- There may be a technical problem with the new provision for making digital preservation copies of original artistic works available through computer terminals. It is a condition of this provision that the terminal can not be used to make an electronic copy. However, most if not all online viewing will involve an electronic copy being made in the terminal (ie a temporary electronic copy).
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| 12.6 |
Sections 110A and 110B are also updated by the DA Bill. Section 110A deals with copying of unpublished sound recordings and films held by libraries or archives, and is equivalent to section 51. Section 110B deals with copying of sound records and films held by libraries and archives for preservation or replacement purposes, and is equivalent to section 51A. |
