Background
The ALRC was asked by the Government to consider whether
exceptions and statutory licences in the Copyright Act 1968 are adequate and
appropriate in the digital environment and whether further exceptions should be
recommended on 29 June 2012. The Commission-in-charge is Professor Jill
McKeough, who has been seconded from her position as Dean of Law at the
University of Technology, Sydney.
The issue of the principles of the nation’s approach to copyright
(fair use vs fair dealing) and exceptions and statutory licence provisions are
very significant to Australian libraries and organisations.
Changes in technology, education and the economy provide an
important context for the report. The ALRC notes that “Policy makers around the
world are actively reconsidering the relationship between copyright exceptions
and innovation, research, and economic growth, with a view to ensuring that
their economies are capable of fully utilising digital technology to remain
competitive in a global market”.
The discussion paper released on 31 May is the second discussion
paper issued as part of the inquiry. It frames in detail the issues that are
expected to appear in the final report which is due to be released by 30
November 2013.
ALIA, ALCC, ADA and many other organisations, provided comments on
the first discussion paper and have prepared submissions to this discussion
paper. Very broadly they welcome the report as a means of obtaining a copyright
regime which better balances the needs of creators and users. If the proposals
become recommendations and are accepted one major result would be a change from
a concept of “fair dealing” to the “fair use” concept embodied in US
legislation and that of many other countries. There are a number of
organisations which do not support this change.
Discussion paper: summary
A framework for considering copyright is developed by the inquiry
based on the following principles:
Principle 1: Acknowledging and respecting authorship and creation
Principle 2: Maintaining incentives for creation of works and
other subject matter
Principle 3: Promoting fair access to and wide dissemination of
content
Principle 4: Providing rules that are flexible and adaptive to new
technologies
Principle 5: Providing rules consistent with Australia’s
international obligations
Some key issues are summarised below.
Fair use
In taking consideration the submissions, the fundamental basis for
use of material in copyright has been analysed, not for the first time by a
copyright review in Australia. Universities Australia argued:
The
shortcomings of a purpose-based fair dealing regime are such that reform
efforts should be directed to replacing this regime with a more flexible regime
rather than tweaking or simplifying the existing fair dealing exceptions. While
there may be a continuing role for some specific exceptions, these should
operate as prescribed minimum standards that may be exceeded if the use in
question satisfies a fairness test. As a general rule, purpose-based exceptions
are unlikely to be sufficiently future-proofed to be appropriate in a rapidly
developing technological environment. (Universities Australia, 2012 p. 2)
In considering “fair use” the inquiry notes that
There were four main
arguments advanced in support of fair use in submissions,
that it:
• provides flexibility to
respond to changing conditions as it is principles-based and technology
neutral;
• assists innovation;
• restores balance to the
copyright system; and
• assists with meeting
consumer expectations. (ALRC, 2013, p. 59)
Bodies arguing against fair use put the position that:
• is unnecessary and no
case is made out for it;
• would create uncertainty
and expense;
• originated in a
different legal environment; and
• may not comply with the
three-step test. (ALRC, 2013, p. 59)
The ALRCs view in summary is that enactment of a fair use
exception in Australia:
• is suitable for the
digital economy and will assist innovation;
• provides a flexible
standard;
• is coherent and
predictable;
• is suitable for the
Australian environment; and
• is consistent with the
three-step test. (ALRC, 2013, p. 79)
Statutory licences
Statutory licences are part of the current Copyright Act. They are
compulsory licences that require payment for certain types of use. The
ALRC notes that rights holders cannot choose not to license their
material. The discussion paper proposes the repeal of the statutory
licences for educational and other institutions and the statutory licence for
the Crown. They argue that “the digital environment appears to call for a new
way for these licences to be negotiated and settled. Like most other licences
for use of copyright material in Australia and abroad, these licences should be
negotiated voluntarily. Voluntary licences—whether direct or collective—are
less prescriptive, more efficient and better suited to a digital age.” (ALRC,
2013, p 109).
Universities Australia argued that the licence approach:
·
impedes new technologies and educational
uses
·
does not reflect modern teaching methods
·
removes incentives for rights holders to
develop innovative and competitive licensing models for educational content
·
has created a false market: Australian
universities are paying to copy works that no one ever wanted or expected to be
paid for
·
has removed any scope for fair dealing
and has led to an unintended shift in the copyright balance
· is economically inefficient.
Dr Matthew Rimmer from ANU gave very convincing arguments as to
how the scheme disadvantaged those with disabilities.
Again those receiving payments from this scheme are expected to
conduct a very strong campaign opposing the proposed change.
Moving to a non statutory licence approach would be more
equitable. It will enable Creative Commons and other licencing approaches to be
fully realised and will better support teaching and research in universities.
Libraries, archives and digitisation
Chapter 11 addresses the issue of digitisation, in particular
section 200AB copying. Only a small number of libraries have been able to use
this provision and the ALRC finds that it is “not working”. A more flexible
approach is proposed using fair use. The sections on mass digitisation and
preservation copying provide a useful summary of international experiences.
The section on “Document supply for research and study” is one
that has been identified by ALCC, ADA and ALIA as not well reflecting the
Australian environment and needs. Submissions to the discussion paper will
address in detail the questions posed in this section.
Summary
The discussion paper’s draft proposals and approach seems to
strikes a very fair balance between the interests of creators and users of
copyright.
The major next step will be the issuing of the ALRC report by 30
November 2013.
References
Roxanne Missingham
University Librarian (Chief Scholarly Information Services)
The Australian National University
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