Document supply for research or study

12.75 In the Discussion Paper, the ALRC proposed that certain access limits be placed on document supply by libraries and archives.[107] Following further consideration, the ALRC decided not to proceed with these proposals.

Current law

12.76 Under ss 49 and 50 of the Copyright Act, a person may make a request in writing to be supplied with a reproduction of an article, or part of an article contained in a periodical or published work held by the library or archive.[108] There are a number of limits to reproduction.[109] A key limit is that where a request is made for reproduction of the whole of the work, or part of a work that contains more than a ‘reasonable portion’[110] of the work, reproduction cannot be made unless:

  • the work forms part of the library or archives collection; and

  • before a reproduction is made, an authorised officer, after reasonable investigation is satisfied that the work cannot be obtained within a reasonable time at an ordinary commercial price.[111]

12.77 Where a library acquires a work in an electronic form, the library may make the work available online within the library premises in a manner such that users cannot make an electronic copy of the work, or communicate the article or the work.[112]

Emerging distribution markets

12.78 A number of publishers submitted that any expansion of the library and archives exceptions relating to document supply would undermine emerging distribution and licensing models.[113] For example, the Australian Publishers Association (APA) argued that part of the historical rationale that underpins the document supply exceptions—such as Australia’s geographical isolation and inability to retrieve materials quickly—no longer applies in the digital environment. It argued that such ‘legacy’ provisions should be repealed.[114] The APA stressed there is now immediate access to authorised copies and that digital technology assists in both identifying and communicating with publishers and/or collection societies that are able to license the use of copyright material on behalf of publishers. It was argued that the exceptions ‘have no place in copyright legislation that supports a digital economy’.[115]

12.79 A further concern was that files distributed by libraries and archives were susceptible to further distribution by users on file sharing sites. Allen & Unwin suggested that libraries ‘frequently create files without any digital security and send them to patrons as email attachments’ and that ‘requiring library patrons to warrant the file is for personal use is no real protection with a digital file’.[116]

Limits on document supply

12.80 In the Discussion Paper, the ALRC proposed that some limits could be placed on document supply by libraries and archives, including measures to: prevent users from further communicating the work; ensure that the work cannot be altered; and limits on the time in which the work could be accessed.[117]

12.81 Cultural institutions opposed such limits on the basis that they:

  • place unreasonable burdens on cultural institutions compared to others who provide content to third parties;[118]

  • would restrict fair use of copyright material amounting to de facto contracting out of fair use;[119]

  • amount to a tax on technology that would deter digital use;[120] and

  • are inconsistent with the mandate of cultural institutions to provide access in the public interest of research and study.[121]

12.82 Many cultural institutions stressed that they would not be in a position to implement the ALRC’s proposals due to lack of funding[122]and the need to make a massive overhaul of infrastructure.[123] For example, ADA and ALCC went into some detail in their submission about the different systems that are used provide document delivery and emphasised that moving from open systems to proprietary systems would be expensive.[124]

12.83 Cultural institutions suggested that it should be sufficient for libraries and archives to notify the user of his or rights under the Copyright Act.[125] The ADA and ALCC noted concerns in relation to piracy, but suggested that there ‘has not been any expectation on the part of libraries that these copies would be made available for wider public access, or to reduce purchasing of digital content licenses’.[126] It argued that:

While we understand the legitimate worries of copyright holders about piracy, considering that document supply requests are either of non-commercially available material (so are not damaging markets) or of a small portion, it seems unlikely that they would be used for piracy … Indeed, there was no evidence we noted in the submissions to this inquiry that linked document supply to systematic piracy.[127]

12.84 The NLA drew attention to a survey it conducted showed that file sharing as a result of document supply is low.[128] For the financial year 2012–2013, the NLA refused 13% of document supply requests for copyright reasons:

With the increasing capacity of internet searches and efficient distribution portals, it is becoming increasingly easy to ascertain whether a work is available at an ordinary commercial price and within a reasonable time. If it is, and the user has requested more than a ‘reasonable portion’ they will be directed to the commercially available source. In these cases, libraries are often acting as pointers to direct business to publishers and authors.[129]

12.85 After further consideration, the ALRC agrees that the limits proposed are unreasonable and would have a negative impact on research and study, particularly for people who do not have physical access to a library. From the view of copyright holders, the ‘reasonable portion’ and market availability requirements compare favourably with other jurisdictions.

Supply for purposes beyond research and study

12.86 Cultural institutions also called for a more liberal interpretation of research and study, to take into account situations where a user might request a document for any fair use or fair dealing purpose. For example, the supply of sheet music for someone learning to play a piece may not be research or study, and therefore, not supplied.[130]

12.87 On the other hand, copyright holders called for the document supply provisions to be limited to ‘non-commercial research’ and ‘private study’—consistent with the way similar provisions are framed in other jurisdictions.[131]

12.88 The ALRC does not consider that the document supply exception should be expanded beyond research or study, nor further confined to private research or non-commercial research. As Professor Sam Ricketson and Chris Creswell observed:

the purpose of the person requesting the reproduction under s 49 is linked only to the individual research and study fair dealing defence in s 40: it does not extend to any of the other purposes that are covered by the fair dealing defences in ss 41 to 43.[132]

12.89 The link between the document supply exception and the research and study fair dealing should be retained in the interest of certainty. If either fair use, or the new fair dealing exception for library and archive use is implemented, that may provide some scope for document supply beyond research and study, subject to the fairness factors.


12.90 While the exception should be retained, it would benefit from substantial redrafting and simplification. Cultural institutions voiced concerns over the complexity of the document supply provisions, including their limited breadth and inefficiency in operation. The ADA and ALCC suggested that:

  • the 1,600 word provision is complex and difficult to administer for library staff; and

  • the need to destroy all electronic copies sent to the user as soon as practicable has resulted in inefficiencies and increased cost for end-users.[133]

12.91 The ALRC agrees that s 49 is unnecessarily complex and would benefit from simplification. In implementing the ALRC’s recommendations, the Australian Government may wish to also consider amendments to simplify the document supply provision in s 49, along with the associated exceptions in s 50 (interlibrary loan). The ALRC notes that guidance can be sought from other jurisdictions with similar exceptions, which display much clearer drafting.