Australian Library and Information Association

Supplementary submission to the Senate Inquiry into the Role of Libraries in the Online Environment

The Australian Library and Information Association (ALIA) wishes to supplement its submission to the Inquiry into the Role of Libraries in the Online Environment, in order to support the recommendations of the Copyright Law Review Committee (CLRC) on Copyright and contract, released by the Commonwealth Attorney-General, Hon. Daryl Williams, on 1 October 2002.

Of crucial importance to the future role of libraries and to public interest access to information is the key recommendation of the CLRC, that Copyright Act 1968 be amended to provide that a contract or a provision of a contract that excludes or modifies fair dealing and library and archives exceptions should have no effect.

If this recommendation is not given legal force in the Copyright Act, licence agreements, particularly those which are non-negotiable or hidden until purchase (such as shrink-wrap and clock-wrap agreements) may over-ride the uses of information which students, libraries and members of parliament have under the Act.

A US district court found recently that, although reverse engineering is permitted as a fair use under US law, the terms of a shrink-wrap licence excluded the operation of the consumer's rights under copyright law.

The CLRC report acknowledges that many submissions from libraries and universities and its own research produced conclusive evidence of copyright licences that restricted or negated legitimate copyright uses.

ALIA points out that such licences not only impede original access to information but also prevent libraries from storing or preserving such information. Despite the costs of online products and databases which are commensurate with or greater than the costs of print material, the effect of using them under some licence agreements is more akin to leasing the information than purchasing it. For example, some digital products have built-in termination devices. Over time, the proportion of materials in electronic formats in libraries will increase, compared to printed materials, thus increasing the barriers to legitimate copyright uses.

Copyright owners of digital information were concerned that the traditional balance between owners and users would favour users. The reverse is occurring. The recommended change to the Copyright Act would preserve the traditional balance.

27 November 2002