Digital Agenda review, libraries, archives and education copying

ALIA submission to Digital Agenda Review
30 September 2003

The Australian Library and Information Association [ALIA] welcomes the opportunity to respond to the Digital Agenda Review issues papers. ALIA represents 1000 institutional and 5500 individual members and the interests of 10.7 million library users.

As a member of the Australian Libraries' Copyright Committee, ALIA supports all of the points made in the ALCC submission. Our response to the Review complements the ALCC submission.

In the public discussions held by the Review consultants, Phillips Fox, and the Commonwealth Attorney-General's Department, some representatives of copyright owners revealed some misunderstanding of how libraries use the fair dealing and library exceptions (ss.49,50) in the Copyright Act and of the changes to library operations as a result of the Digital Agenda amendments. In the interests of an informed public debate, ALIA wishes to describe briefly these operations, especially, but not exclusively, those of specialist libraries. This submission draws on consultations with ALIA individual and institutional members representing a range of libraries from large to one-person, publicly and privately funded, and the Association's copyright and intellectual property policy and advisory committee.

Library access to electronic information resources since the commencement of the digital agenda amendments to the Copyright Act on 4 March 2001.

Purchase of information: Australian libraries are spending more money on print and electronic resources through direct purchasing and through statutory and voluntary licences. Since information in electronic format is not always reliably supplied or archived by publishers, larger libraries will buy the same material in digital and in print format.

Libraries generally report 10 per cent to 30 per cent increases in the cost of purchasing digital material directly and under licence over the past two years. This money goes directly or through copyright collecting agencies to copyright owners and publishers.

Interlibrary document delivery and resource sharing: at the same time as libraries are spending more money on print and electronic resources the level of library-to-library document delivery is falling. Most of this material is in print format and a survey conducted by the largest lender, the National Library of Australia, shows that most lending is of material that is at least five years old.

Licence restrictions: many licences restrict the sharing of information to non-licensed users. An example is CIAP, the cluster of medical and health databases paid for by the State Departments of Health and available only to public health and hospital libraries.

Privately-funded non-profit libraries

Librarians in this sector purchase resources but they also rely on the library copying exceptions to deliver research and information services to the business, research and scientific communities and to share their specialist collections with the wider community. Some examples of this resource-sharing for the public benefit include:

• Engineering library services to local councils, including the provision of information in times of emergency
• Pharmaceutical industry library services to hospital staff and medical practitioners in regional areas
• Resource-sharing between public and private medical libraries
• Access to corporate libraries by parliamentary and government libraries
• Access to legal information for one-person legal firms

The number of non-profit libraries in businesses continues to fall, as it has over the past decade, to the present number of approximately 230. There are approximately fifty non-profit libraries in non-profit organisations. [Directory of Special libraries, ALIA]

Some of these libraries are large, but a majority are small with one full-time or part-time librarian or library technician worker, serving 200 or fewer users. They hold specialist collections in law, engineering, religion, history and heritage.

The largest category covers health and welfare. Some of these are attached to hospitals which are private or partly public and partly private. Those libraries which serve non-profit organisations have very limited budgets and may employ one person part-time. They serve a valuable public interest and are an important part of the resource-sharing network. Their organisations include the Alzheimer's Association, Red Cross Blood Bank, the Nursing Mothers' Association, the Brotherhood of St Laurence and Burnside, the Uniting Church's child welfare service.

Many of these libraries rely on resource-sharing and the operation of ss.49 and 50 because they have no market power to negotiate with copyright owners and digital publishers which are not yet offering reasonably priced access to small amounts of information for these consumers, as a comment from one librarian indicates:

'If licensing arrangements affected ILANET [State Library of NSW] being able to provide access to small libraries like mine, I would not have access to databases like Proquest ... The cost of accessing Proquest directly is about $3000 to $5000 a year, not including the cost of downloading full text articles. This cost is prohibitive. Of the 546 Health journals on offer from Proquest I could use about 33 titles. They do not provide a bundled group of journals relevant to my needs.' [library of a church family and child welfare agency]

Changing business models and technological solutions
Initially inexperienced in contract negotiation and sometimes outclassed by the bargaining power of publishers, librarians have not sought further regulatory protection. Instead they have developed relationships and negotiating strategies with individual copyright agencies and individual publishers and, where appropriate, some libraries have formed consortia to support more effective outcomes.

This has not been an easy process. The licensing of access to digitised music for the purposes of study and research in Australian academic institutions is still being negotiated with the four copyright collecting agencies which cover music scores, performance and recording.

Some of the concerns of copyright owners regarding library operations, expressed for example, in recent consultative forums, appear to be derived from examples of unrestrained domestic copying, such as peer-to-peer music swapping, and bear little, if any, relevance to the legally valid operations of libraries.

Digital music swapping may be seen as piracy and the pursuit of children and young adults through legal action or, as Apple has chosen, a business opportunity to capture a new group of consumers at $US99 a hit, making so far a reported $US9 million dollars.

The copying done through libraries, unlike that of domestic users, is limited and within the law. The argument should not be extrapolated from all users to library users. Copying by library staff under ss.49 and 50 is restricted to limited amounts for a limited purpose which doesn't interfere with commercial exploitation by the copyright owner. The copying of digital information by library staff is limited by the test of commercial availability and price within a reasonable time frame.

These restrictions provide publishers with opportunities to supply material in digital format to libraries and some discussions have already occurred regarding the possible provision of digital reference material on a pay per view basis (with generally the cost to be borne by the library).

Digital tracking of database use and the marketing of new digital services to domestic consumers, are making the digital publishing environment more secure for copyright owners who already benefit from the facility and cheapness of digital technology in the distribution of their product.

Against this background, ALIA addresses issues in the Digital Agenda Review issues papers on Libraries, Archives and Educational Copying.

Aims of the legislation
ALIA believes that the aims of the digital agenda amendments as they relate to the activities of libraries are being generally supported by the operation of the Act. Where the balance of interest has altered, it has been in favour of copyright owners, now supported by a complex and growing web of licensed uses paid for by libraries and by government.

Any further amendment in favour of copyright owners may diminish present legitimate access by library users to copyright information.

Specific issues raised in the Digital Agenda Review Libraries, Archives and Educational copying issues paper. July 2003

Issue 1. The definition of libraries (ss.18 and 49(9).
'S.18 Libraries established or conducted for profit
For the purposes of this Act, a library shall not be taken to be established or conducted for profit by reason only that the library is owned by a person carrying on business for profit.'

'S.49(9) In this section
library does not include a library that is conducted for the profit, direct or indirect, of an individual or individuals.'

ALIA supports the retention of the definition of libraries in s.18 and the access of non-profit libraries whether they are publicly or privately funded to the library 'exceptions' in ss49 and 50.

ALIA believes that the further definition of libraries in s.49(9) should be removed. The concept of a library run for the indirect profit of an individual is capable of a variety of linguistic and judicial interpretations of what constitutes 'indirect' and 'individual' for the purposes of this section. Embedded in the first of the library provisions, s.49(9) contributes to legal uncertainty and is irrelevant in view of the s.18 definition which has general operation under the Act.

Issue 2. Making print copies of digital information under s.49(5A)
Librarians are required to provide digital information at dumb terminals so that, unless licensed to do so, users cannot make ongoing digital reproductions and communications. However, users may make print copies of digital information within the same limits and for the same fair dealing purposes which cover print-to-print reproduction. This is an example of the government's stated aim of technological neutrality.

Issue 3. Effect on market opportunities for commercial publishers
Librarians are not using the ss.49 and 50 library exceptions to engage in electronic publishing in competition with commercial publishers. The multiple copying of print or electronic material for library users is done strictly in accordance with licence provisions and is paid for on a per-user or a per-use basis.

Issue 4. Operation of ss.49 and 50
As stated above ALIA supports the removal of s.49(9)

ALIA believes that the test of commercial availability of electronic material gives publishers and owners the opportunity to develop new markets in electronic information. Library copying under ss49 and 50 is, therefore, not interfering with those market opportunities.

Issue 5. The concept of first digitisation
ALIA supports the arguments of the Australian Libraries' Copyright Committee that the concept of 'first digitisation' is misleading. Copyright owners already have the right to reproduce their material in a digital format. Their commercial exploitation of the information they own is protected within the exceptions provisions.

The digitising of student material in educational institutions is already paid for under copyright collecting agency licences. Further, the Copyright Agency Limited (CAL) is co-ordinating a course-pack project with authors and publishers.

Digital access to collections held in libraries and archives aids the knowledge and research of the Australian community. The digitising of unpublished or out of copyright material held in national and state library and other institutional collections does not of itself impede commercial exploitation of such material. If these activities were seen to be a profitable commercial source, one would expect them to attract commercial funding, and the fact that a library has digitised them does not preclude commercial exploitation.

In many cases the amount of research needed to meet the requirements to clear all copyright in material such as letters and diaries puts the project beyond commercial viability. There is no onus on creators or publishers to provide rights management information, digital or otherwise. In 2002, the Carnegie Mellon University libraries in the United States did a survey of the feasibility of seeking copyright permissions. One third of copyright holders did not respond at all to two request letters and 14 per cent of holders were untraceable.

Copyright and contract

ALIA supports the implementation of the Copyright Law Review Committee's recommendation in its report Copyright and contract, that agreements which purport to exclude or modify copyright exceptions should not be enforceable.

The fair dealing and library copying exceptions are within the scope of the limitations permitted by the Berne Convention and by the WIPO Copyright Treaty and should not be extinguished by contract, particularly by terms which under the common law of contract would be characterised as unfair.

ALIA is concerned that the current nature of contracts for electronic resources treats access to these differently from print purchase. The capacity to develop library collections may be adversely affected if librarians can only lease access to an electronic journal. The shift from print distribution to electronic distribution raises serious concerns about archiving. A library that subscribes to a print form of a journal will retain a hard copy of work It will be able to be accessed by researchers and users for as long as the information is relevant. By contrast, a library that subscribes to an electronic journal can only guarantee access to the resource for the duration of a contract. It retains no hard copy if the contract lapses because the library can no longer afford the fees charged by the information provider.

ALIA argues that a licence should include provision for affordable, perpetual access to the licensed information by some appropriate and workable means. Furthermore, it maintains that a licence should address provisions for long-term access and archiving of the electronic information resource(s) under consideration and should identify responsibilities for these. If such access is not protected by licence, libraries should be able to archive the information they have purchased without further permission, in the same way in which they can collect print material.

Anti-circumvention devices as discussed in the Digital Agenda Review Circumvention devices issues paper, July 2003
ALIA believes that the present legislation promotes a reasonable balance between competing interests. In surveying sixty libraries, we found no librarian who had used a device to circumvent a technological lock. However, ALIA would oppose an attempt to remove the ability of librarians to circumvent such protections if the barrier impeded otherwise legitimate access to information.

Internet service providers as discussed in Digital Agenda Review Carriers and carriage service providers issues paper, July 2003
Although, libraries as intermediaries have an important role to play in ensuring compliance with copyright law, liability should ultimately rest with the infringer. Copyright law should enunciate clear limitations on liability of third parties in circumstances where compliance cannot practically or reasonably be enforced. ALIA believes that the 'safe harbour' exemptions provided by s39A and s39B of the Copyright Act 1968 should not be able to be overridden by contract.

I would be happy to discuss or provide further information on any of the matters raised in this submission. I can be contacted on 02 6215 8215.

ALIA gives consent to Phillips Fox and to the Commonwealth Attorney-General's Department to make this submission public and to make it available in print or digital form.

Yours sincerely

Jennefer Nicholson
Executive director