AARL

Digital agenda report card: how are libraries and the digital copyright amendments getting on one year after commencement?

Nick Smith

Abstract: This article reviews the operation of the Copyright Amendment (Digital Agenda) Act 2000 in libraries, concentrating in particular on five areas: the 'reasonable portion' test; library document supply provisions (sections 49 and 50); intra-library networking (section 49 (5A)); protection from authorisation liability (section 39A); and preservation copying (section 51A). The article suggests that some further changes could simplify library procedures without adversely affecting the interests of copyright owners.

The Copyright Amendment (Digital Agenda) Act 2000 commenced on 4 March 2001. It was the culmination of a legislative development process that seemed excruciatingly long and was peppered with angry exchanges between industries that normally manage to get along quite nicely.

Some rights-holder groups had given the view that the passage of this Act which included exceptions to the rights of copyright owners would be the end of the world as we knew it: 'Within three years the damage to online writing and publishing in this country is likely to be so great there will be nothing left to review'. [1] Similarly, library groups had suggested that a failure to pass the amendments might effectively shut libraries out of the digital environment altogether.

Now, with the benefit of a year's hindsight, it is possible to examine exactly what happened when the night of 3 March 2001 gave way to the bleary morning of 4 March 2001. This article will look at the various exceptions of interest to libraries in detail and consider whether they have led to any changes in library practice.

The 'reasonable portion' test

Right at the heart of almost all conflict over the Digital Agenda Act (DAA) was a little thing known as the 'reasonable portion' test. This 'test' is used in three different contexts within the Act: section 40 (fair dealing for research or study), document supply (ss49 and 50) and the educational statutory licence for works (Part VB). The operation of most exceptions in the Copyright Act is governed by their purpose. Thus, for example, under section 41, fair dealing for the purpose of criticism or review, a work may be copied (typically within another work) if appropriate credit is given and the purpose is criticism or review. However, in some provisions, the purpose provides insufficient guidance. Under section 40, copies may be made provided that the copying is 'fair' and it is for research or study. What does this mean? What is fair?

'Fairness' is defined by five principles (s40(2)(a-e)) such as 'the purpose and character of the dealing' or 'the effect of the dealing upon the market for the work'. This is not a great deal of help. It is extremely difficult for a student, for example, to be aware of the effect that their copying of two articles on green tree frogs will have on the market for green tree frog articles.

To resolve this uncertainty, the Act contains the reasonable portion test which deems that 10% of pages (or words), a chapter or an article is 'fair' without having recourse to the five principles. The reasonable portion test only applies to literary works and dramatic works (ie chiefly text) and musical works in score sheet form. They did not, and do not now, apply to recorded music or film.

Copyright owners objected strenuously to the extension of the reasonable portion test to the digital environment, arguing that it promotes an ease of copying which will lead to piracy. (Which, in some ways, is a strange argument. It is doubtful whether those who ripped their CDs and posted the tracks on Napster stopped to consider whether their activities could be viewed as 'research or study' or whether they had kept within the '10% rule'.)

Nevertheless the Government extended the reasonable portion test to the digital environment and so maintained the usefulness of the vital fair dealing provisions for research or study exception as well as enabling a number of other important exceptions.

Library document supply provisions (sections 49 and 50)

Of all the amendments contained in the DAA, none attracted as much attention as the proposed amendments to sections 49 and 50, which permit libraries to copy and supply portions to users and other libraries respectively.

Copyright owners suggested that the extension of these document supply provisions to the digital environment would be a catastrophe; that an emerging Australian electronic publishing industry would be crushed by super-efficient libraries beating them to their customers with neatly-wrapped copyright-free digital packages. They asserted that library document supply activities are essentially a form of publishing with one enormous advantage: the cost of creating the material is taken out of the business equation.

They further held that transmitting articles and chapters of books is a profitable activity which is used to cross-subsidise other library activities. (The law says that document supply charges may only cover costs but copyright owners held, not unreasonably, that 'costs' are what you make them.)

In this light, considerable pressure was exerted upon the Government (and upon Parliament directly) to confine document supply to non-digital methods. However, the Government was acting from a strong position of principle that all exceptions operating in the print environment should be extended to the digital environment.

In the end, sections 49 and 50 were amended to allow digital document supply but with safeguards built in for the benefit of copyright owners. The extension to the digital environment was achieved easily: a definition of 'supply' was added that reads: 'supply includes supply by way of a communication'. (A communication, under the DAA, is any electronic transmission or act of 'making available online' such as uploading material to a website.) The digital safeguards are somewhat more complex and are as follows:

Interim copies

Where print material is digitised for the purpose of document supply (for example, an article is scanned into Ariel), the interim copy must be destroyed as soon as practicable after transmission. That is, the supplying library keeps its print original, the receiving library gets its new digital copy and no further copies are left.

The purpose behind this qualification was to prevent libraries from using the document supply exceptions to build up a digital database of copyright works which could then form the basis of a super-efficient digital document supply service. This qualification tends to ignore the reality behind the difficulties associated with digitisation and the management of digital objects. Few libraries would imagine creating a database of Ariel page images.

Library-to-user warnings

Where material is sent by some electronic means to users under section 49, the work must be accompanied by a warning notice. This notice is similar to the warning notices that may be placed on library machinery. This proviso does not apply to material sent to other libraries or archives under section 50.

Library-to-library supply of electronic source material

The document supply provisions ordinarily permit the supply of up to a reasonable portion for the purpose of research or study (or the inclusion of a work in library's collection). More than this (up to the whole work) can be supplied if a copy, other than a second-hand copy, is not available at an ordinary commercial price within a reasonable time.

This proviso was altered with respect to section 50 (library to library) supply of material from an electronic source. In this case, no portion, not even a reasonable portion, may be supplied without first applying the commercial availability test. This was implemented because it was feared, somewhat unrealistically from the library point of view, that the market for an electronic work could effectively be ended after a single sale; that the first library to purchase a new work would supply (reasonable portions of) it to every other library in Australia (and perhaps the world).

To complicate library to library supply further, there is an exception to this proviso: for a portion of a work to be 'commercially available', it must be available for separate sale. Thus, an article from Cardio-Thoracic Fun Monthly is not 'commercially available' unless that specific article is available for purchase on its own; the mere fact that anyone may subscribe to the journal or even purchase a single issue does not make that article 'commercially-available'.

The effect

How have the amendments in the DAA changed document supply practices in libraries? The answer seems to be that document supply has not been greatly altered by the new provisions. This is somewhat misleading because the DAA had the vital effect of legitimising the existing legally-grey arrangements. For many years, libraries have used digital technology (Ariel and, yes, fax machines) to supply material; a legal question mark hung over this activity which libraries cheerfully ignored. With the passage of the DAA, libraries can at last be certain that document supply can be safely conducted with digital technologies.

As far as this author knows, the new provisos have not had a serious impact on library practice. Libraries are not in the business of archiving interim scanned copies as generated by Ariel. This provision has had one important effect, however: it prevents libraries from scanning a popular item once and using the same digitised copy to satisfy multiple requests. Copyright holders would applaud this for creating incentives for libraries to purchase their own copies of material rather than relying on a library network.

Libraries have adapted to the need to accompany electronic transmissions with the required user warning. As for the new restriction covering library to library electronic source material, this has barely been noticed by libraries. The chief reason for this is that libraries do not, for the most part, actually undertake document supply of electronic source material. There are perhaps several reasons for this but the most important must be that works acquired by libraries in electronic form are typically accompanied by licence agreements which prohibit document supply. (Or if they do allow document supply, then there is no need to rely upon section 50).

The absence of much in the way of supply of electronic source material is borne out by the joint CAL/National Library of Australia study which looked at NLA document supply across three months last year. Of 5,237 copies made in the months of September, October and November 2001, only 34 came from an electronic source. (The survey can be found at: http://www.nla.gov.au/dss/calsurvey.html.) Thus the fears of copyright owners that their emerging electronic markets would be swamped by free digital library reproductions have proven to be groundless so far.

Intra-library networking (section 49(5A))

This provision, nestled discreetly amongst the document supply provisions, permits libraries to network materials that they have acquired in digital form across the premises of the library (and not beyond). This is subject to the proviso that the machines which receive the networked material are disabled so that users are not able to make further electronic reproductions or communications.

This exception represents a worthy but ultimately unsuccessful attempt on the part of the Government. The aim was to allow libraries to get better use out of digital resources that they acquired. However, as with document supply of electronic materials, the networking of such materials is typically governed by a licence agreement. In fact, if a product has a licence agreement, the question of network use is the most common issue it will address. Licences for electronic material will typically say something along the lines of 'to be installed on one computer only' or 'limited to five simultaneous users'.

The question whether such a contractual term overrides the copyright law or vice versa is an open one. (The Copyright Law Review Committee has completed a report on this very issue which is still in the hands of the Attorney-General and yet to be released to the public.) Out of prudence, fear and the need to maintain on-going commercial relationships with publishers, librarians have almost always followed licence conditions rather than the law in this regard. This exception is little used.

Indeed, it is possible that this exception is actually harmful. Some librarians have misunderstood the nature of this provision (ie that it provides an opportunity to network material without copyright permission subject to some conditions) and have believed that it merely imposes a requirement to disable machines any time that material is networked to them. These librarians, having read this provision, have seen it as their duty to lock up disk drives and remove e-mail applications from library PCs even though they are only using licensed material that may be freely networked.

It may be that this provision will prove useful but it could use some improvement. The Government ought to drag it from its obscure position within the depths of section 49 and enhance its usefulness to libraries.

Protection from authorization liability (section 39A)

Authorisation liability is the indirect liability that arises when someone 'authorises' another to do an infringing act. This form of liability arose with the case of Moorehouse vs University of New South Wales. In this case, UNSW was held to be liable for 'authorising' ('sanctioning, countenancing or approving') the infringing acts of its students and staff by placing photocopying machines next to stacks of copyright material with the knowledge that copyright infringement would almost certainly take place.

In order to protect libraries from this form of liability, the Government introduced a provision which allows libraries to attach copyright warning notices to photocopiers and thereby escape liability for infringement. Note that this protection is only good against liability arising from the use of library photocopiers. Libraries that find other ways to authorise infringement may still find themselves liable; for example, a librarian might tell patrons not to worry about copyright and to copy anything they like. Indeed, it is even possible (though highly unlikely in practice) that a library could find itself liable for remaining silent while it knew that a patron was infringing copyright.

In the Digital Agenda Act, as well as codifying the law of authorisation (unifying the threads of case law and bringing them into the Act), the Government has updated library authorisation protection to include protection with respect to machines other than photocopiers. The amended section 39A (and its parallel films and sound recordings provision 104B) allow libraries to attach notices to (or near) any machine that a patron might use to make infringing copy, such as a PC or a scanner. (Unfortunately, in a masterstroke of unnecessary bureaucracy, the Government requires that libraries attach not one but two notices to library machines. Each notice - which must, by law, be A4 in size - contains broadly similar text and a lot of white space. Combining the two notices on one page ought not to be the most taxing task a Government has ever faced.)

It is also worth noting that a peek at the 'amended' section 39A will reveal no apparent change. This is because the amendment was 'misdescribed' in the Digital Agenda Act; the legislative equivalent of a typo. However, the Government has assured librarians that they treat the amended s39A as the law even if it technically isn't.

The effect

The amendment to library authorisation protection is worthwhile and something that libraries can be grateful for. It is increasingly possible that organisations that provide internet connectivity to the public could be viewed as targets by rights holders looking for someone to sue other than their own customers.

Still, no library has been sued for authorising its patrons' infringements since the UNSW. Prior to the DAA, libraries could have been sued for patron infringements taking place on library PCs but apparently haven't been. However, it is this very absence of litigation that might well indicate that the provision is doing its job.

Preservation copying (section 51a)

Section 51A has always been the Copyright Act's answer to entropy. Before things fall apart, this provision allows copies to be made in order to preserve them (or at least their semblance) into the future. Unfortunately, this vital provision has always been somewhat flawed.

Section 51A had previously achieved a certain notoriety amongst people working in cultural institutions. Sub-section 51A(3) used to read that a 'microform' copy could not lawfully be made unless 'as soon as practicable after the copy is made, the work from which the copy is made, is destroyed.' This requirement to destroy an original in order to save it was routinely ignored and, happily, has been removed from the amended Act. Unfortunately, the amended preservation provision contains a number of new flaws which make it less than completely useful to a modern library.

Digitisation, chiefly for the purpose of preservation, has been a major priority for cultural institutions around the world for several years now. It has also been a major impetus behind Government funding for the arts. It is not unreasonable therefore, that libraries should expect that the preservation provision ought to allow them to digitise their collections and make them available to their patrons in some form.

Alas, section 51A falls maddeningly short. It allows some but not all preservation copying; and it places burdensome restrictions on what may be done with preservation reproductions once they have been made. Section 51A(1) permits libraries and archives to make copies of works in their collection for the purpose of preserving them against eventual deterioration, but only if the copy of the work held is in manuscript form or is an original artistic work. If the work held is in a published form then a preservation copy may only be made if the copy held has been lost, stolen, damaged or destroyed. Unfortunately the law does not permit the library to make the preservation copy before the work has been lost, stolen, damaged or destroyed. It presumes that another copy can be sourced from another institution, which will not necessarily be the case if the work is unique or extremely rare.

It also requires that that a commercial availability check be made before the replacement preservation reproduction copy can be made. So before a library can make create a digital surrogate copy of a 1901 first edition of Miles Franklins' My Brilliant Career (presumably only to send to another library which had lost its copy), it must ascertain whether another new copy of that work can be purchased; upon finding a 2002 reprint in a bookshop, that library cannot then legally make a preservation copy of that work.

When the Digital Agenda Act was being developed, the Government had some notion of this difficult situation and inserted a somewhat more useful 'administrative purposes' provision. Whereas a library could not legally copy the aforementioned first edition of My Brilliant Career for the purpose of preservation under sub-section (1), it can quite lawfully make a copy for administrative purposes under sub-section (2). Unfortunately, this is where the usefulness ends. The provision further specifies that these reproductions may only be made available to staff on the premises. Any attempt to communicate such reproductions to the public, even simply on the premises of the library or gallery, would be an infringement of copyright.

But there is a further twist to this most confused of provisions. Where a library or archive makes 'administrative purposes' reproductions of original versions of artistic works in its collections, it can communicate these to members of the public via on-site terminals from which subsequent reproductions cannot be made. It can do this provided it makes a judgement in the case of each original version of the work that the work has deteriorated or is so unstable it cannot be displayed. Quite why it is acceptable to display digital reproductions of paintings or prints but not manuscripts or scoresheets is not clear.

The effect

The sad result of this flawed provision is that libraries and archives are essentially not using it in order to digitise their collections. The feeling is that the conditions under which material may be digitised and then made use of are simply too complicated and limiting. As a result, digitization efforts appear to focus upon public domain or otherwise licensed material.

Conclusion

The DAA updated the copyright regime with respect to libraries and new technologies in a relatively useful fashion. A number of important changes were made which allow some library use of digital and online technologies. However, even allowing for the fears of copyright owners that libraries would misuse copyright material, several provisions in the DAA seem flawed. In particular, the intra-library networking provisions and preservation provisions as presently drafted seem of little use to the library sector.

It will be interesting to see what the Government makes of all this as it heads towards the planned review of the digital copyright provisions. Hopefully it can be persuaded that the operation of the digital-friendly library exceptions has not resulted in any harm to authors and publishers as was predicted.

Notes

1. Joint media release by the Copyright Agency Limited, Australian Publishers Association, Australian Copyright Council and Australian Society of Authors 29 June 2001

Nick Smith, copyright advisor, Australian Libraries Copyright Committee, and executive officer, Australian Digital Alliance (at the time of writing).