Copyright: Progress in Australian Law Reform Commission’s inquiry

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

The ALRC discussion paper is very detailed and comprehensive, containing over 380 pages It is available online http://www.alrc.gov.au/sites/default/files/pdfs/publications/dp79_whole_pdf_.pdf. 46 proposals and 8 questions have been developed in the paper from the detailed analysis undertaken for the inquiry.

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)

A number of organisations appears to have commenced publically opposing this approach – see  http://www.copyright.com.au/news-items/2013/copyright-news/alrc-discussion-paper-released and https://asauthors.org/bulletin-june-2013 :

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.

Watch this space – ALIA has produced a submission to the discussion paper which can be found from http://www.alia.org.au/information-and-resources/copyright . The comments focus particularly of inter library lending/document supply and copying for members of parliament.

The major next step will be the issuing of the ALRC report by 30 November 2013.

References

Australian Law Reform Commission (2013) Copyright and the Digital Economy. DISCUSSION PAPER. Sydney: ALRC. http://www.alrc.gov.au/sites/default/files/pdfs/publications/dp79_whole_pdf_.pdf

Universities Australia (2012) Response to the ALRC Issues Paper: Copyright and the Digital Economy November 2012. Canberra: Universities Australia. http://www.universitiesaustralia.edu.au/resources/777/1509

Roxanne Missingham

University Librarian (Chief Scholarly Information Services)

The Australian National University