12.5 In this chapter, the ALRC uses the term ‘cultural institutions’ to refer to libraries and archives (including museums, galleries and public broadcasters) as defined in the Copyright Act. These cultural institutions have an important public interest role in maintaining collections and providing access to cultural and historical knowledge.
12.6 The digital environment has changed the ways in which copyright materials are created, stored, preserved and published by cultural institutions. In particular, the digitisation of collections has been recognised in government policy. The Australian Government’s report, Creative Australia: National Cultural Policy, emphasised that:
The way in which we engage with the collections of our National Collecting Institutions will change significantly. The digitisation of their collections and increasing online engagement, using the potential of the NBN, will exponentially increase the value and role of our national collections in telling Australian stories.
12.7 During the Inquiry, cultural institutions sought reform to the Copyright Act that would give them greater freedom to engage in:
routine digitisation of collection material;
digitisation and provision of access to unpublished material (for example, on a museum’s website);
digitisation and communication of non-Crown copyright material that forms part of government records;
capturing and archiving Australian web content;
mass digitisation projects; and
use of orphan works.
12.8 The fact that cultural institutions require greater flexibility to use copyright material in the digital environment is not a new consideration to copyright law reform in Australia. There was substantial debate during the Inquiry as to whether the current flexible dealing exception in s 200AB, discussed below, is adequate or whether it should be replaced by fair use.
A library is defined in various exceptions in the Copyright Act. For example, for the purposes of s 49, a library is defined as ‘a library all or part of whose collection is accessible to members of the public directly or through inter-library loan’. This is a broader concept than ‘key cultural institutions’ which are defined as bodies administering libraries and archives under a law of the Commonwealth or State, or bodies prescribed by the regulations. The prescribed bodies include the Australian Broadcasting Corporation, Special Broadcasting Service Corporation and the Australian National University Archives Program: Copyright Regulations 1969 (Cth) sch 5.
Copyright Act 1968 (Cth) s 10 defines ‘archives’ to mean archival material in the custody of: the Australian Archives; the Archives Office of NSW; the Public Record Office; the Archives Office of Tasmania; or a collection of documents or other material of historical or public interest in custody of a body that does not operate or maintain the collection for the purposes of deriving a profit. This may include museums: s 10(4).
Many cultural institutions have statutory obligations to develop, maintain and provide public access to their collections. See eg, National Film and Sound Archive Act 2008 (Cth); Archives Act 1983 (Cth); Australian War Memorial Act 1980 (Cth); National Library Act 1960 (Cth).
See A Christie, Cultural Institutions, Digitisation and Copyright Reform (2007), Intellectual Property Research Institute of Australia Working Paper No 9/07, 21–25, noting that digital technology has transformed libraries from traditionally holding non-digital works for physical access, to a 21st century-type institution that provides public access to digital representations of the cultural institutions online and around the clock.
Australian Government, Creative Australia: National Cultural Policy (2013), 100.
Grey Literature Strategies Research Project, Submission 250; National Library of Australia, Submission 218.
State Records South Australia, Submission 255; Grey Literature Strategies Research Project, Submission 250; CAMD, Submission 236; National Library of Australia, Submission 218; ADA and ALCC, Submission 213; National Archives of Australia, Submission 155.
CAARA, Submission 271; National Archives of Australia, Submission 155.
National Library of Australia, Submission 218.
Art Gallery of New South Wales (AGNSW), Submission 111.
See Ch 13.