ALIA copyright service: the digital agenda

27 June 2000

Some implications of amendmants to the Digital Agenda Bill

Nick Smith
Executive officer, Australian Digital Alliance
Copyright advisor, Australian Libraries Copyright Committee

Below are some of the implications of the new government amendments (introduced 22 June) to the DA Bill for libraries, covering the definition of library, first digitisation and ss.49 and 50.

Definition of library
The government amendments remove the new definiton of 'library' which would have excluded libraries owned by for profit corporations. The former provision is re-introduced which states that libraries (under the Act) cannot be run for the profit of an individual. (This essentially means a 'library' can be part of a for-profit enterprise but that the library itself cannot be run for profit as a distinct enterprise. For example, the BHP library is a 'library', Infotrieve is not.)

First digitisation
New legislative notes have been added that the conversion of copyright material 'into a digital or other electronic form includes the first digitisation of the work.' This was the law already. These notes are therefore cosmetic only and do not affect inter-library document supply, fair dealing etc. The other place 'first digitisation' popped up is in increased penalties for infringements that involve digitisation.

S.49 (Supply by libraries to users)
This provision is pretty much as it was when the Bill was first introduced - that is it allows the digital supply by libraries to user of a reasonable portion of a work (10 per cent/article/chapter) upon request. More than a reasonable portion may be supplied subject to a commercial availability test.

Digital copies must be destroyed after supply to the user.

S.50 (supply by libraries to other libraries)
This provision has changed a little more than s.49. It allows the digital supply of a reasonable portion of print source material to libraries upon request. For example, an article from a print journal scanned in using ARIEL and then e-mailed is OK. Larger amounts of material may be supplied subject to a commercial availability test.

All supply of electronic source material is subject to the commercial availability test, including reasonable portions. For example a request for an article from an electronic journal by another library cannot be satisfied under s.50 if it is available at an ordinary commercial price within a reasonable time. (This is not new to the government amendments).

Things that are new in s.50

1. The commercial availability test is now slightly more limited. For a reasonable portion to be regarded as 'commercially available', that particular portion must itself be commercially available (together with a reasonable amount of other material). This means that if an (electronic) article is requested and that article is not itself available for separate sale (but the entire journal it came from is) then that article is not 'commercially available' and may be supplied.

   It has been said that this is of little benefit as companies like Infotrieve will argue that all articles and chapters are available separately because they are willing to source and supply any article or chapter.

2. S.50 is changed from 'held in the collection of the other library' to 'held in the collection of a library'. This expands s.50, meaning that a small library can still make a request of the National Library (for example) for material held in a third library (such as the Library of Congress). As the Bill was introduced into parliament, it meant that a s.50 request had to be fulfilled from the requested library's own holdings. This change is to allow services like SUPPLY 1 to continue.
   
   
3. The destruction requirement is added to s.50 (just like s.49). That is digital copies made by a library in order to supply material to a second library must be destroyed after the act of supply. Obviously, the library which makes the request does not have to destroy its copy.