The Australian Library Journal
volume 50 issue 2

Virtual libraries - long overdue: the Digital Agenda Act and Australian libraries

'Here, then, is the point at which I see the new mission of the librarian rise up incomparably higher than all those preceding. Up until the present, the librarian has been principally occupied with the book as a thing, as a material object. From now on he must give his attention to the book as a living function. He must become a policeman, master of the raging book.' [A translation of Ortega y Gasset's address to the International Congress of Bibliographers and Librarians in Paris in 1934.] Jose Ortega y Gasset (1883-1955)

Manuscript received December 2000

This is a refereed article

Librarians and copyright law

Libraries and the digital age

Copyright owners hope that by gaining adequate protection for their works in the on-line environment they will be able to expand their markets and maximise the return on their investment. Users, on the other hand, see the new digital technology and sources such as the world wide web as a means of maximising their access to knowledge and information whilst minimising their costs of access.

Libraries, in the meantime, are trying to decide where they fit into this new digital information environment. Sir Anthony Mason, in his role as chairman of the National Library of Australia Council, has suggested that:

...the idea of a library as an on-site owner of a large collection is giving way to the notion of a functional library which will deliver electronic materials not housed on-site. The functional library will collect only materials which are regularly used' and 'The likelihood is that electronic texts will substantially replace print in a large number of areas, particularly where the search is for information...3

The question for librarians is whether this dream of the 'virtual library' of the future is, in fact, a likely result of the passage of the Digital Agenda Act.

An Australian copyright law for the 21st century

Principles of copyright law

Australian copyright law prior to the Digital Agenda Act

• gives copyright owners exclusive control over the way their copyright works can be used;
• protects 'literary works' or written material such as journal articles, novels, screenplays, poems, song lyrics, reports, computer programs and databases and 'artistic works' such as paintings, drawings, cartoons and the like. Musical works, dramatic works and audio-visual items such as cinematograph films, sound recordings, broadcasts and published editions are also protected;
• provides protection for most 'works' - literary and artistic works - for the life of the 'author' plus fifty years after the end of the year in which the author died or fifty years after the expiration of the year of first publication. The term 'author' is used generically to mean the creator of the work such as writers, composers, visual artists and computer programers;
• provides that copyright is infringed when a person other than the copyright owner exercises a copyright owner's exclusive rights for a protected category of work without the licence (agreement) of the copyright owner; and
• provides access through 'fair dealing' provisions which act as a statutory defence to infringement.

These basic principles have not been changed by the passage of the Digital Agenda Act.

Changes introduced by the Digital Agenda Act

• reproduction;
• adaptation;
• publication;
• performance;
• broadcast;
• diffusion; and
• commercial rental of their copyright works.

A key feature of the Digital Agenda Act is a new broadly-based, technology-neutral right of communication to the public. This new right replaces the current broadcast and cable diffusion rights. It incorporates the right to make copyright material available online. It is an exclusive right covering all protected works except for published editions (because the reproduction of a book's typeface or layout is not required on-line).

The right is designed to be technology neutral referring only to transmissions along a 'path' rather than specifying the technology involved, as in the past. It is intended to apply to future developments in technology without the need for constant amendments to the Act. Consequently, copyright owners can now take action directly against persons infringing their copyright in the digital environment regardless of how that material is transmitted. Notably, even though this right is new, the exceptions to it, such as fair dealing and library copying provisions, follow the previous exceptions for in-print copyright.

Library copying for users: s49
At present the Copyright Act allows libraries and archives to copy material in hardcopy form for users if it is for the purpose of research or study.[5] Libraries are required to obtain a written declaration from the user stating that the copy is only going to be used for purpose of study or research.[6] Currently the whole or part of an article contained in an issue of a periodical publication can be copied[7] but the whole or parts of two or more articles can only be copied from the same issue of that periodical publication if the articles relate to the same subject matter.[8]

Normally, copying for library users is limited to a 'reasonable portion' of a published literary, dramatic, or musical work (other than an article in a periodical publication).[9] However, the whole of a published work, or an amount exceeding the 'reasonable portion' can be copied if the work forms part of the library or archives collection and an authorised officer has made a declaration stating that s/he is satisfied that a new copy of the work cannot be obtained within a reasonable time at an ordinary commercial price.[10] The term 'reasonable portion' is discussed in further detail below.

Copyright owners feared that were these provisions to apply in the digital environment libraries could become commercial publishers by creating electronic document copying and delivery services on a commercial scale without compensation to authors.

Consequently, the conditions under which a library can furnish a copy of a work to a user have been tightened under the Digital Agenda Act:

• the exception will only apply to works already held in the collection of the library.[11] This means that the library cannot, for example, search for related material on the internet, and download and copy it in response to user requests under this provision;
• where an electronic copy of an item in the library collection is made the library has to destroy the reproduction as soon as practicable after communicating it to the user.[12] This is designed to prevent the library from building up a database of digitised works;
• the library can make items it acquires in digital form available to users 'within the premises' of the library but only on so-called 'dumb terminals'. These are terminals from which the user cannot make an electronic copy of the work (for example, by copying it to disk) or communicate it (via the internet, for example).[13] However, users are able to make a hard copy of the material made available online in the library if it complies with fair dealing principles;[14] and
• libraries are limited to making the electronic copy available 'within the premises'. This is likely to prevent the library making the electronic copy available to users outside of the library premises in related but separate buildings, satellite or affiliated libraries or off-site centres such as computer labs or university staff offices.

Finally, libraries are not permitted to convert works in their collection from hardcopy to digital unless entitled to do so under a fair dealing provision or library exception. The right of 'first digitisation' is part of the copyright owner's exclusive right of reproduction.[15] This puts paid to any idea that libraries might have had of conducting a wholesale digitisation of their collections outside of commercial negotiations with copyright owners.

Definition of 'reasonable portion' updated
The term 'reasonable portion' in the Copyright Act[16] interacts with provisions for:

• fair dealing for research or study;[17]
• copying of works by libraries for users;[18]
• copying of works by libraries for other libraries;[19] and
• copying of works by educational institutions for educational purposes.[20]

Under the Digital Agenda Act where a literary or dramatic work in electronic form is reproduced a 'reasonable portion' will mean not more than ten per cent of the number of words in the work.[22] Alternatively, where the work is divided into chapters and the number of words copied exceeds ten per cent of the words in the work, in aggregate, then reproduction may contain the whole or a part of a single chapter in the work.[23]

Clearly, the current test of a 'reasonable portion' based on page counting is inappropriate in the electronic environment because pagination reflects the browser used, font size and printer employed by the end user. However, assuming that appropriate word counting software can be employed, the question remains as to how electronic material such as world wide web pages fit into the new word-based test. Are graphics and headings to be ignored in assessing ten per cent of the number of words to be copied? In addition, no guidance is provided for the assessment of a reasonable portion in the case of musical works, computer databases and non-literary works such as sound recordings and films.

The heart of the inter-library supply system: s50
Under the Copyright Act[24] libraries may supply each other with copies of requested material for the purpose of adding the item to the collection of the requesting library and to satisfy user requests under the library to user copying provision. This provision is the basis of the inter-library supply system operating throughout Australian libraries. Where a copy of more than a reasonable portion of a work (other than a periodical article) is sought the requesting library must be satisfied that a copy of the work cannot be obtained within a reasonable time at an ordinary commercial price.[25]

Under the Digital Agenda Act[26] where the source material to be copied is in electronic form the commercial availability test will apply to all works including periodical articles. This means that if the requesting library can obtain the electronic work itself from a commercial source in a reasonable time it cannot be provided by another library.

This provision is intended to oblige libraries to acquire their own copies of electronic articles and reasonable portions of works where they are commercially available.[27] However, following representations by library organisations the government has agreed that the commercial availability test is not intended to oblige libraries to purchase whole databases where they are only seeking a portion of the material on it or one electronic article out of a collection of electronic articles.[28]

Where a reasonable portion or less than a reasonable portion of a work is sought the library cannot supply the work to another library if it is available either separately or together with a reasonable amount of other material within a reasonable time at an ordinary commercial price.[29] What constitutes a 'reasonable amount of other material' is not indicated. However, in the case of the whole or part of an article in electronic form unless the article is individually commercially available the supplying library can provide it to the requesting library.[30] A likely consequence of this stricter commercial availability test is that the inter-library supply system will not play as big a role in the digital environment as it has in the past.

The Digital Agenda Act, as originally drafted, only allowed libraries to supply material held in their own collections.[31] This would have interfered with library supply services that access overseas collections such as 'Supply 1'.[32] Consequently, the Digital Agenda Act now provides that the supplying library can provide a work available through its library network rather than just from its own collection.[33]

Consistent with the Digital Agenda Act's library to user copying provisions,[34] the libraries supplying under the inter-library loan system will be required to destroy the reproduction of the work as soon as practicable after it has been communicated to the requesting library.[35] Again, this provision is designed to prevent libraries building up databases of electronic materials as a result of responding to inter-library copying requests.

Libraries copying for preservation purposes: s51A
Under the Copyright Act[36] an original artistic work, manuscript or published work held in the library collection may be copied for the purpose of preservation, research on the premises or replacing a work that has been damaged, lost or stolen.

Under the Digital Agenda Act[37] libraries will be able to digitise works in their collection for preservation and administrative purposes. Administrative copies of works can be made available online within the premises of the library for library officers.[38] In the case of original artistic works it was intended that the online copies could be communicated to the public within the premises of the library.[39] This was designed to allow libraries, art galleries and museums[40] to display original artistic works that are not currently available for public viewing.

However, the House of Representatives accepted an Australian Labor Party (ALP) amendment to the Digital Agenda Act[41] which limits the scope of this provision. The only works which may now be displayed under this provision are those which have been lost or have deteriorated since the preservation reproduction was made or have become so unstable that they cannot be displayed without risk of significant deterioration. The view of the ALP[42] is that, in the main, cultural institutions should not be permitted to display digital reproductions of works without the payment of reasonable remuneration to copyright owners.

Finally, this limited range of digitised works can only be viewed by the public on 'dumb terminals'.[43] This means that the library or gallery must ensure that there are no means for the public to make an electronic or hardcopy of the reproduction or communicate it, for example, on the internet.

Fair dealing provisions
Under the Copyright Act the fair dealing provisions allow dealing with a work for

• Research or study;[44]
• criticism or review;[45]
• reporting news;[46] or
• giving of professional advice by a legal practitioner or patent attorney.[47]

The primary consideration in relation to copying for research and study is that the dealing must be fair in that the 'reasonable portion' rule applies. In addition where copying is for purpose of study or research a number of qualitative factors have to be taken into account in deciding whether the dealing is fair or not.[48] These are the purpose and character of the dealing; the nature of the work or adaptation; the possibility of obtaining the work or adaptation within a reasonable time at an ordinary commercial price; the effect of the dealing upon the potential market for, or value of, the work or adaptation, and the amount and substantiality of the part copied taken in relation to the whole work or adaptation. These restrictions do not apply to copying for the purpose of criticism or review, reporting news or giving of professional advice by a legal practitioner or patent attorney. However, in the case of criticism and review and reporting news sufficient acknowledgement of the work must be made.[49]

Under the Digital Agenda Act a reproduction of a work includes a first digitisation of a work.[50] However, a first digitisation that complies with the fair dealing exceptions outlined above including the new definition of 'reasonable portion' will not be in breach of copyright. The government has indicated that this extension of the fair dealing provisions is intended to allow libraries to scan reasonable portions of works and e-mail them to remote users for research or study.[51]

Change to library definition - back to the hold shelf
One of the major concerns of libraries following the first tabling of the Digital Agenda Act into the House of Representatives in September 1999 was a plan to change the definition of libraries to exclude libraries operating within 'for profit' businesses.[52] After concerted pressure by library organisations this provision was deleted from the final version of the Act that went to the House of Representatives in June 2000.[53] As a result the Copyright Act library copying provisions continue to exclude for profit libraries but do allow non-profit making private sector libraries to copy material under these exceptions.[54] However, had the definition been changed, as first proposed, these libraries would have been viewed as being for profit because they are within profit businesses and would therefore be excluded from the copying exceptions.

The government has stated its intention to review the operation of the Act after three years.[55] Consequently, it is likely that copyright owners will continue to press for the introduction of this new definition of libraries. If the new definition of libraries is accepted at that time libraries in for profit organisations will be obliged to enter into licence agreements with copyright owners to reproduce the works in their collections for users and other libraries.

Liability for on-line copyright infringement

Libraries must also avoid 'authorising' copyright infringements by users Under the Copyright Act a librarian may infringe copyright if he or she 'authorises' a user to make an infringing copy.[59] Following the case University of NSW v Moorhouse[60] in 1975, libraries were obliged to place copyright warning notices on photocopiers to avoid liability for copyright infringement by their users.[61] Under the Digital Agenda Act this provision is extended so that copyright warning notices must also be placed next to computer terminals.[62] However, the use of the notices alone does not absolve the library from any responsibility for what users then do on those machines. The factors that will be taken into account in deciding whether a library has authorised an infringement of copyright are the extent of the library's power to prevent the infringing act; the nature of the relationship between the library and the infringer and whether the library took any reasonable steps to prevent the infringing act.[63] These factors indicate that where a library can take reasonable steps to prevent copyright infringement by users using its equipment it should do so. In relation to material in the library collection this can be achieved by ensuring that the library is able to lock computer terminal drives and ports, restrict user ability to print from computer terminals where appropriate, and educate users and staff of the library as to what they can and can't do using library equipment.

Web surfing - how libraries can avoid getting wet
The question arises as to the liability of libraries when users use library computer terminals to 'surf the web' and make electronic or hard copies of material they find along the way. The restrictions in the library to user copying exception in the Act relate to copying digital material held in the library collection.[64] Nevertheless, apart from the use of copyright notices, the question of authorisation still applies. If, for example, a librarian were aware that a user was exceeding fair dealing copying provisions whilst 'surfing the web' and has the power to prevent this then they should take reasonable steps to do so to avoid inadvertently authorising an infringement of copyright.

On-line browsing using library equipment
The making of ephemeral copies of material is an integral part of the way computers receive and display material accessed via the internet. Consequently, the act of browsing material on the world wide web on a library computer could inadvertently breach copyright. Generally it is argued that computer users may rely on an 'implied licence' from the copyright owner to access this material. This is based on the view that the owner has made it available knowing that it may copied but has omitted to take steps to limit that use.

The government has stated that it is keen to '...ensure that copyright laws do not jeopardize the underlying technical processes that are integral to the operation of the internet...'.[65] Consequently, a new exception has been introduced for temporary copies made in the course of the technical process of making or receiving a communication.[66] This will allow libraries to make available on-line material for browsing by users on library equipment without incurring liability for copyright infringement.

Technological protection measures
The Act introduces protection for two types of technologies designed to prevent the infringement of copyright in the digital domain. The first is electronic rights management information (RMI) such as codes embodied in or attached to a work identifying the copyright owner and indicating the terms on which the material may be used. A typical example is a digital watermark in the document. The second type of enforcement measure are technological protection measures such as access and copy control measures - password protections, file permissions and encryption.

Commercial rather than domestic use targeted
This has been an area of heated debate and submissions by copyright users and owners during the development of the Digital Agenda Act. The government believes that copyright owners rights are more threatened by the actions of those who make illegal circumvention possible than the end users of such devices.[67] Consequently, the Digital Agenda Act targets the manufacture and dealing in devices for the circumvention of technological protection measures rather than individual or domestic use of such devices.[68]

Copyright owners will now be able to take action against people who are manufacturing and dealing in devices such as software that breaks passwords or file permissions and encryption decoding devices. In addition there will be penalties for the intentional removal or alteration of RMI such as digital watermarks.[69] These provisions are designed to target people who deal commercially in, and communicate copies of works where the RMI has been removed or altered.

Dealings with tampered works - should libraries take care?
However, the new s116C of the Digital Agenda Act may inadvertently affect libraries because as well as targeting the distribution and importation of affected material it also attacks the communication of such works to the public.[70] Under the Digital Agenda Act the activities of libraries under the library-to-user and library-to-library copying provisions as well as preservation copying provisions will include communications of electronic material to the public. For liability to arise the library would have to have actual knowledge that the RMI in these works had been removed or altered and knew or ought reasonably to have known that their act of communicating the work would '...induce, enable, facilitate or conceal an infringement of the copyright in the work'.[71]

Whilst clearly directed against commercial dealings with tampered works[72] this provision may unintentionally bring the activities of libraries in dealing with this material into question. Should libraries now have a system in place for screening material coming into the library collection to check that its RMI, where used, has not been tampered with? Until clarified by the government libraries would do well to remain cautious about their management of donated items and material coming from other libraries in this regard.

No library circumvention for fair dealing purposes
Circumvention for limited permitted purposes including library copying for users, inter-library loans and preservation copying is allowed under the Digital Agenda Act.[73], [74] A library will only be able to obtain a circumvention device on the completion of a declaration by a library officer.[75] However, if the work is 'readily available' in a form that does not carry a technological protection measure, for example, in hard copy, use of a circumvention device to access the digital version is not permitted.[76] The fair dealing provisions are not covered so that even where individuals are entitled to copy material for themselves, for example, under the fair dealing exception for research and study, they cannot circumvent a technological protection measure to do so.

The Australian library in the digital age

However, as can be seen from the provisions of the Digital Agenda Act, libraries will not necessarily be at the forefront of this revolution. As has been argued by the Australian Libraries Copyright Committee, the passage of the Digital Agenda Act is more likely to mean that libraries will use the new technologies to provide similar services to the same groups of users as they have done in the past.[78] The opportunity for libraries to digitise works in their collections, outside of commercial negotiations and licensing agreements with copyright owners, is limited.

The authors acknowledge the assistance of: Mia Garlick, Lawyer, Gilbert & Tobin and Simon Cordina, principal legal officer, Intellectual Property Branch, Attorney-General's Department, Canberra.

Hilary May Black is a lawyer in the Communications and Technology and Intellectual Property Groups of the specialist Australian law firm Gilbert and Tobin. She specialises in intellectual property, internet and entertainment law. She writes on a range of intellectual property and entertainment law issues. E-mail hblack@gtlaw.com.au.nospam (please remove '.nospam' from address)