AARL

Copyright vs contract: are they mutually exclusive?

Evelyn Woodberry

Abstract: This article focuses on the conflict between copyright and contract law being experienced in university libraries in Australia as the result of the development of information in electronic format. It considers some of the issues emanating from the US and Europe, where similar tensions are being experienced. It also considers some of the issues raised by submissions to the CLRC reference on Copyright vs Contract Law and the future role of copyright and contract in the electronic environment.

Copyright law in Australia has been developed over many years, with the government's stated intention to promote creative endeavour by balancing the rights of copyright owners with access to information and the rights of copyright users. Contract on the other hand expanded rapidly in the late twentieth century in response to the emergence of information in electronic format and the development of the internet. Contract has been defined as 'a facility for more closely defining informational property rights, structuring digital property', and has led to the increased commodification of information. [1] It is worth noting that the explanatory memorandum which accompanied the release of the Copyright Amendment (Digital Amendment) Bill 1999, includes a number of references to the Bill as part of the strategic framework for the development of the information economy. [2] Whether talking about copyright or contract, in the current environment it is becoming increasingly clear that the government sees copyright as an economic rather than a social argument. As libraries and librarians are focused more on the social aspects of access to information it is to be expected that conflicting views would emerge in the copyright law versus contract debate.

Copyright Law

The development of copyright law over an extended period resulted in balanced legislation applicable in the analogue environment. However, the rapid development of electronic information created tensions with the existing structures of business, social relationships and legislation. The lag between the emergence of electronic information and the development of copyright law was strained as the legislation and case law reflected a situation which changed dramatically in a short period of time. Despite these recent developments, Bill Town in his December 2001 article argued that copyright is more important than ever before, particularly in relation to social issues such as fair dealing and equity of access. [3]

As far as legislation in Australia is concerned, while products in electronic form began to emerge in the late 1980s, amendments to the Copyright Act which recognise the issues of the digital environment, did not come into effect until 2001. The delay in development of the Act allowed the publishing industry to take the opportunity to divide the market for electronic products and sell at differential prices under contracts with varying conditions. On the positive side as a result of taking time for consultation the resulting legislation is well considered, and manages to maintain most of the principles from the Act which it amends. This is an important factor according to Jessica Litman who, in her 1997 article, argues strongly that legislation must make sense to the end users or they will ignore it and that:

The other conclusion I draw is that: more than ever before, our copyright policy is our information policy. As technology has transformed the nature of copyright so that it now applies to everybody's everyday behavior, it has become more important, not less that our copyright rules embody a deal that the public would assent to. The most important reason why we devised and continued to rely on a copyright legislative process whereby copyright rules were devised by representatives of affected industries to govern interaction among them is that it produced rules that those industries could live with. [4]

While this is a US article and their copyright legislation is different to Australia's the sentiments expressed can equally be applied in Australia. The article goes on to recognise the role of contracts and the necessity for them to coexist with copyright legislation, while stressing the view that they should not be a replacement for copyright law.

Librarians, however, have been increasingly concerned with what they considered to be the commodification of information in the electronic environment and more importantly limitations being placed on access, often in conflict with Australian copyright legislation, through the use of contracts issued under the auspices of overseas countries. This continues to be a point of contention between the publishing industry and librarians.

Role of contracts

Charles Oppenheim[5] has argued that in an electronic environment copyright is unlikely to survive in its present form and that contracts are one of the most important features associated with copyright, in this particular environment. The view he expresses is that in the digital environment, greater reliance will be placed on contracts rather than on the law alone. When discussing the European implementation of the Database Directive[6] he states that, in most cases databases will receive database right and copyright, rather than one or the other. Many of the issues he raises are reflected in the submissions to the CLRC on their copyright versus contract reference.

Publishers have supported the use of contracts in the electronic environment as it allows much more stringent control by dictating who can use the information, the format of delivery and limits the length of time the information is available. An example of this increased control regards access to archival information: in the print environment if a library subscribes to a journal title the title remains the property of the library and can be reused regardless of whether or not the subscription is renewed. In the electronic environment if a library elects no longer to subscribe, depending on the terms of the contract, the library may no longer have access to any of the information, may be offered the information only for the period of their subscription on CD-ROM, may be offered continuing access to only the period of the subscription, may be expected to pay annually for access to the archive, or a variety of other options. In addition, once a contract is signed the library is bound by the conditions of the contract and is no longer covered by the library provisions of the Act.

Access and fair dealing

Access to information is the primary purpose of libraries. In Australia this is recognised within the Act through the library provisions. However, librarians have always recognised that there is a cost associated with information and respect the necessity for copyright owners to obtain a financial return on their intellectual property. The cost of re-use of print materials through the circulation of books or the copying from journals has in the main been carried by libraries, in the form of 'institutional' pricing, payment of statutory and voluntary licenses with copyright collecting societies or copyright owners. Similarly fair dealing for specific purposes is integral for the access and use of information by individuals.

The erosion of fair dealing is considered to be potentially the most serious effect of the use of contracts to define access. The role of libraries in the provision of access to information includes aspects of public benefit, the assurance of equity of access, and the making available of access to information to as many as possible of their user population. The new communications technologies have the potential to provide access to users who previously through problems of distance, economic or physical circumstances could not access information resources. However, if as part of the new communications technologies it becomes necessary also to pay for information, which could previously be accessed under fair dealing provisions, the divide between those who can and cannot access information will widen.

The limits which the publishing industry has attempted to place on the access to information in electronic form through the use of contracts, conflicts with the principles enshrined in the copyright legislation. University libraries in Australia are traditionally open access resources where any member of the community can walk in and browse the collection, photocopy for their own use from books or journals or read at their leisure under the fair dealing provisions of the legislation. In the electronic environment there is the capacity for the contract to limit access to only 'authenticated' members of the university community, and specify how the material can be used. This contracting out of fair dealing is a major point for negotiation between librarians and publishers.

CLRC inquiry into copyright law and contract

The debate on copyright versus contract in Australia was focused by the release of the CLRC issues paper into the relationship between copyright law and contract in 2001. [7] James Lahore, the chair of the CLRC, summarised the purpose of the reference as follows:

... the Attorney-General has asked the CLRC to inquire into and report on whether the existing balance between the rights of copyright owners and users provided through the structure of copyright protection, and exceptions established under the Copyright Act, has been altered by the use of private agreements. If these agreements are in fact a cause for concern, the CLRC has been asked to make recommendations about what should be done - in line with our international obligations and domestic policy considerations - to restore the appropriate balance. [8]

The CLRC received 36 submissions from a range of copyright owner and copyright user groups, individuals and the computer industry. [9] At the time of writing the report from the Committee has been sent to the Attorney-General but no release date has been set down. However, following the close of submissions the CLRC produced a paper which highlighted the key issues raised by the submissions and held a meeting inviting further comment and discussion. [10]

The views expressed in the submissions of copyright owner and copyright user interests, particularly regarding the first question, which asked 'the extent to which electronic trade in copyright works and other subject matter is subject to agreements which exclude or modify exceptions to the exclusive rights of copyright owners provided under the Copyright Act'[11] were polarised.

While submissions from copyright owner interests asserted that there was little evidence of the use of contracts which sought to modify limitations to copyright, submissions from the copyright user groups, particularly libraries, provided numerous examples of contracts which attempted to override or modify the limitations. Based on the information and examples provided,

the Committee formed a preliminary view that contracts that try to modify or exclude the copyright exceptions do exist and that they are common enough to warrant further investigation. [12]

This polarisation of views continued regarding the need for increased regulation through the Act. Copyright owner interests argued that the market for electronic information was still emerging and that at present there is sufficient regulation available through contract and consumer protection legislation, with no need to extend copyright legislation. Copyright user interests generally supported some form of legislative reform to prevent contracting out of exceptions. In the paper for the October 2001 meeting the Committee stated that at that time it was not convinced that existing remedies were sufficient and that it is likely to recommend a solution somewhere between the two extremes, after further investigation.

The Committee identified four particularly significant differences between what they classify as 'online and offline trade' in copyright materials. These are:

• the difference between the ownership of a tangible product and the right to access certain material
• the possibility of enforcing online contractual terms via technological protection measures (digital 'lock-up') or legal measures
• the incidence of trade across national borders, and
• the potential ease of creating high quality infringing copies of digital material. [13]

The issues raised by the submissions to this CLRC reference are directly relevant to the three-year review of the Copyright Amendment (Digital Agenda) Act which the government committed to as part of the implementation of the Act in 2001. Consequently the release of the report will be an important part of the review process, particularly any recommendations which refer to changes in conditions relating to contracting out from exceptions.

Conclusion

Contracts used to regulate the purchase and use of information in electronic form apply to only a small percentage of published output. Print, governed by copyright law, remains the major format for publication of books and journals with electronic provision only a small, but growing, percentage. It is therefore essential that the use of contracts in one particular part of the information industry does not override the more broadly applied copyright legislation. The importance of maintaining effective copyright legislation is summarized by the International Federation of Library Associations (IFLA) in their position paper on Copyright in the Digital Environment:

... unless libraries and citizens are granted exceptions which allow access and use without payment for purposes which are in the public interest and in line with fair practice such as education and research, there is a danger that only those who can afford to pay will be able to take advantage of the benefits of the Information Society. [14]

There is general agreement in much of the overseas as well as Australian literature that contracts should complement copyright legislation, not replace it.

Issues which have emerged as part of the development of the use of contracts in the electronic environment need to inform the debate on copyright. In Australia most of these issues have been identified and discussed as part of the CLRC reference on copyright and contract. The ensuing report will be a key component in the three-year review of the Copyright Amendment (Digital Agenda) Act.

While recognition of the economic value of intellectual property and the increasing commodification of information has gained momentum in the past decade, it is the principles of access to information contained within the Copyright Act which must be maintained to ensure the balance which copyright law has always tried to attain.

Notes

1. [B Fitzgerald 'Commodifying and Transacting Informational Products through Contract' Copyright Reporter: Journal of the Copyright Society of Australia vol 20 nos 2 and 3 April 2002 pp56-63 at p56
2. [Parliament of the Commonwealth of Australia House of Representatives Copyright Amendment (Digital Agenda) Bill 1999 Explanatory Memorandum
3. [B Town How do You Provide Access to Electronic Content Without Creating Barriers for Users? Information World Review Oxford Dec 2001 pp53-56
4. [J Litman 'Copyright Noncompliance (or why we can't 'Just say yes' to licensing)' 29 NYU Journal of International Law and Policy 237 1997
5. [C Oppenheim 'Does Copyright have any Future on the Internet?' Journal of Documentation vol 56 no 3 May 2000 pp279-298
6. [Copyright and Rights in Database Regulations 1997 SI No 3032/1997
7. [Copyright Law Review Committee. Copyright and Contract - Issues Paper (2001) http://clrc.gov.au/clrc/pres_ref/IssuesPaperJune2001.pdf [20/8/2002]
8. [J Lahore 'Copyright Law Review Committee's Inquiry into Copyright Law and Contract' Copyright Reporter: Journal of the Copyright Society of Australia Vol 20 nos 2&3 April 2002 pp50-55
9. [http://www.clrc.gov.au/pres_ref/what_Committee_doing.htm [5/8/2002]
10. [Paper for meeting with the Copyright Law Review Committee on 4 October 2001 http://www.clrc.gov.au/clrc/whatsnew/discusspaper.html [5/8/2002]
11. [J Lahore op cit p50
12. [Paper for meeting with the Copyright Law Review Committee on 4 October 2001 http://www.clrc.gov.au/clrc/whatsnew/discusspaper.html [5/8/2002] p3
13. [Ibid p4
14. [IFLA Position on Copyright in the Digital Environment http://www.ifla.org/V/press/copydig.htm [19/8/2002]

Evelyn Woodberry, university librarian, University of New England. E-mail: ewoodber@metz.une.edu.au.nospam (please remove the '.nospam' from the address).