11.02.2016
Ms Kirsti Haipola and Mr Sam Ahlin
Copyright Law and Policy Section
Department of Communications and the Arts
By email: copyright@communications.gov.au
11 February 2016
Dear Ms Haipola and Mr Ahlin,
Exposure Draft Copyright Amendment (Disability Access and Other Measures) Bill 2016
The Australian Law Reform Commission (ALRC) welcomes the opportunity to provide a submission in response to the Department’s call for views on the updating of Australia’s copyright laws to make them easier for the disability, educational, libraries and archives sectors.
The exposure draft of the Copyright Amendment (Disability Access and Other Measures) Bill 2016 deals with a number of issues. This submission refers only to those issues that the ALRC considered in the inquiry which culminated in the report, Copyright and the Digital Economy (ALRC Report 122, 2013).
1. Disability access
Amongst the proposed amendments concerning disability access to copyright materials is a proposal for a stand-alone fair dealing exception for individuals for the purpose of access by persons with a disability (proposed s 113E). The Department’s explanatory material states that this exception will replace existing s 200AB(4) so that the fair dealing criteria will apply rather than the criteria in s 200AB(1).
The Department will be aware that the ALRC recommended the introduction of fair use, and that access for people with disability was recommended as an ‘illustrative purpose’ in the fair use provision (Recs 5–1, 5–3). Such an illustrative purpose would not create a presumption that a particular type of use will be fair but rather would signal that certain uses are somewhat favoured or more likely to be fair. The fairness factors (outlined in Rec 5–2) would always need to be considered.
The ALRC recommended an alternative exception, should fair use not be enacted. The ALRC recommended a new fair dealing exception that consolidates the existing fair dealing exceptions and provides that fair dealings for certain new purposes do not infringe copyright. Access for people with disability was recommended as one of the prescribed purposes (Rec 6–1).
Chapter 16 of ALRC Report 122, ‘Access for People with Disability’, sets out the ALRC’s case for reform in this area. The ALRC recommended that the fair use or new fair dealing exception should be applied when determining whether a use for access for people with disability infringes copyright (Rec 16–1). The ALRC also recommended the repeal of s 200AB (Rec 14–1).
The ALRC is pleased to see this proposed partial implementation of ALRC Report 122.
The ALRC makes no comment about the proposed amendment—new s 113F—which would provide a stand-alone exception for the use of copyright material by institutions assisting persons with a disability. This is because the ALRC’s Terms of Reference for the Copyright Inquiry asked the ALRC not to duplicate work being undertaken on increased access to copyright works for people with print disability. Accordingly, the ALRC did not conduct a detailed consideration of the pt VB statutory licence in this respect.
2. Preservation copying
The Department’s website states that proposed amendments to the existing preservation copying provisions are intended to provide ‘simple, clear rules for libraries, archives and key cultural institutions to make preservation copies of copyright material’.
Preservation copying is examined in Chapter 12 of ALRC Report 122. The ALRC recommended that the Copyright Act 1968 (Cth) be amended to consolidate and streamline existing preservation copying exceptions into a single exception that would permit libraries and archives to make use of copyright material necessary for the preservation of published and unpublished works in their collections. The ALRC specifically recommended that the new exception should not limit the number of copies or formats that may be made. As a consequence of the new exception, the ALRC recommended that a number of existing exceptions should be repealed (Rec 12–2). (Note that the ALRC’s recommendations for a new fair use or fair dealing exception with respect to ‘library and archive use’ (Recs 5–3, 6–1, 12–1) were designed to supplement such a specific exception for preservation copying).
The proposed amendments are in accord with the ALRC’s recommendations. Aspects of the proposals are considered below.
The exceptions are to apply to public libraries and archives, parliamentary libraries and prescribed key cultural institutions
Some stakeholders to the ALRC’s Copyright Inquiry questioned the policy reasons for existing exceptions applying to key cultural institutions and not other libraries and archives. The ALRC concluded that the new preservation exception should apply beyond key cultural institutions, suggesting that the exception be available to libraries, archives and museums that do not operate for profit and hold collections that are accessible to the public. This would be consistent with other jurisdictions that have libraries and archives exceptions, such as Canada.
Streamlining the existing preservation copying provisions
Proposed pt IVA div 3—which concerns libraries and archives—uses the term ‘copyright material’ that is to be defined in s 10(1) as meaning ‘anything in which copyright subsists’. In its report, the ALRC stated that there appears little utility in having different preservation exceptions addressing ‘works’ and ‘subject matter other than works’.
Removing the distinction between published and unpublished
The Department’s explanatory material accompanying the Exposure Draft states that the proposed amendments will provide greater flexibility for cultural institutions in the copying and digitisation of copyright material, whether published or unpublished, to preserve their collections.
In the ALRC’s Inquiry, some stakeholders queried whether the distinction between ‘original’ and ‘published’ works remains tenable in the digital environment and argued that the preservation exceptions should apply to all works, whether published or unpublished. The ALRC concluded that there appears little utility in having different considerations for ‘original’ and ‘published’ works.
No limit on the number, version or format of copies that can be made
The Department’s explanatory material notes that there will be no limit on the number, version or format of copies that can be made for preservation purposes, consistent with best practice. In the ALRC’s Inquiry, a number of stakeholders suggested that the existing limit of one copy for preservation purposes or three copies for a ‘key cultural institution’ no longer meets best practice preservation principles. The ALRC heard that best practice preservation principles in relation to digital material require numerous copies to be made in multiple formats. Many stakeholders expressed to the ALRC their support for a more technologically-neutral exception that would not limit the number of copies and which would allow for format shifting.
No specific commercial availability test to be imposed
The Department states that no specific commercial availability test will be imposed. However, the exception does require that the authorised officer is satisfied that a copy of the material cannot be obtained in a version or format that is required for preservation.
ALRC Report 122 outlines stakeholder views on this issue. Many cultural institutions suggested that commercial copies are not the same as preservation copies. For example, commercially available digital works may not be in a format or quality that is suitable for preservation. Rights holders did not express major concerns about copying works for preservation purposes, but were concerned with subsequent access to the works in ways that affect the ability of the copyright holder to exploit the material.
The ALRC determined that the question of access should be left to fair use, new fair dealing, or licensing solutions. By contrast, the Exposure Draft of the Bill contains provisions for restricted access so that a person cannot electronically copy the material or communicate it to the public. The Department’s explanatory material states that these provisions are ‘intended to complement other provisions in the Act relating to use of copyright material in libraries and archives’.
The ALRC is pleased to see this proposed partial implementation of ALRC Report 122.
3. Statutory licences—educational sector
Statutory licences are discussed in Chapter 8 of ALRC Report 122.
The proposed amendments to the statutory licences for the educational sector accord with a number of aspects of the ALRC’s recommendations. It should be noted that the ALRC’s recommendations were to apply more broadly than to the educational sector only.
Statutory licences not compulsory
The ALRC had concluded that educational institutions should not be required to rely on the statutory licences. Statutory licences were intended to be compulsory for rights holders, not for licensees. The ALRC recommended that the Copyright Act should be amended to make this clear (Rec 8–2). This recommendation was designed to encourage and facilitate voluntary licensing.
Proposed s 113T(1) makes it clear that a copyright owner may grant a licence to a body administering an educational institution authorising any use of the copyright material.
Statutory licences to be less prescriptive
The Department’s website states that the proposed changes are designed to streamline the educational statutory licence provisions, ‘making it easier and simpler for educational institutions and copyright collecting societies to agree on licensing arrangements for the copying and communication of copyright material’. For example, s 113P consolidates the existing provisions relating to the pt VA and VB statutory licences.
The ALRC considered that the statutory licences were too complex and rigid and that much of the detail in the Act should be removed (Rec 8–4). The ALRC was of the view that the parties should agree on whether a survey of use needs to be conducted, and if it does, how often and what methodology should be used. The parties should also agree on the amount of equitable remuneration. If the parties cannot agree, then the parties may seek to have the Copyright Tribunal settle the dispute.
Proposed s 113P(4) outlines questions that the Copyright Tribunal may determine. It appears to accord with the tenor of the ALRC’s recommendation.
The ALRC welcomes this legislative initiative, which is consistent with some of the approaches to reform reflected in ALRC Report 122.
We hope this submission is of assistance. If you require any further information, please do not hesitate to contact the ALRC.
Yours sincerely,
Professor Rosalind Croucher AM