Technological protection measures and contracting out

11.127 Some cultural institutions raised issues relating to TPMs. The ADA and ALCC were concerned that

increasing tendency of digital content licenses to contract libraries out of existing copyright exceptions, and ways in which TPMs impede preservation and long-term access to copyright works in the public interest.^[150]

11.128 It called for ‘mirrored exceptions permitting circumvention of TPMs where an exception for digitisation or fair use or proposed legislative alternative exists’.^[151]

11.129 The ALRC notes that the Australian Government Attorney-General’s Department is conducting an inquiry into whether exceptions for TPMs under the Copyright Act are appropriate and whether new exceptions should be added. That review is considering whether further exceptions in sch 10A of the Copyright Regulations that encompass ‘reproduction and communication of copyright material by libraries, archives and cultural institutions for certain purposes’ are needed.^[152] The Terms of Reference direct the ALRC not to duplicate work in relation to this review.

11.130 However, as discussed in Chapter 17—and consistent with the ALRC’s views in this chapter—the inherent public interest in libraries and archives exceptions requires that there be no contracting out of these exceptions. The ALRC proposes that this be the case, whether or not fair use is implemented.^[153] The ALRC also notes that if limitations on contracting out are implemented, consistent amendments to TPM provisions may be justified. That is, there may be little point in restricting contracting out of exceptions, if TPMs can be used unilaterally by copyright owners to achieve the same effect.^[154]