12.50 While the ALRC recommends the introduction of a flexible fair use exception, it also recommends that some specific exceptions be retained and that certain new specific exceptions be introduced. These specific exceptions should not limit the application of fair use. The exceptions reflect the existence of strong public policy reasons for protection, and in some instances, recognition that the case for fair use is so strong that requiring an assessment of fairness factors would be redundant, and possibly serve to increase transaction costs.
12.51 The ALRC considers that preservation activities undertaken by cultural institutions should be covered by such an exception. Preservation activities—as distinct from providing access to copyright material—would in most instances be fair use. Preservation of copyright material is in the interest of both users and copyright holders and does not affect the copyright holder’s ability to exploit the market of his or her work. Further, preservation ensures the protection of Australian heritage and promotes the public interest in research and study and access to cultural and historical material.
12.52 There are numerous provisions in the Copyright Act that deal with preservation copying by cultural institutions. These are divided between copying of ‘works’ and ‘subject matter other than works’.
12.53 Under s 51A, a library or archive can make and communicate a reproduction of the work if :
the work is in manuscript form or is an original artistic work—for the purpose of preserving against loss or deterioration or for the purpose of research that is being carried out at the library or archive; or
the work is in published form but has been damaged, deteriorated, lost or stolen—for the purpose of replacing the work.
12.54 Preservation copying of works held in published form is only permitted subject to a commercial availability declaration. That is, preservation copying is only permitted if, after reasonable investigation, the library or archive is satisfied that a copy (not being a second-hand copy) cannot be obtained within a reasonable time at an ordinary commercial price. Further, reproductions of original artistic works can only be communicated via copy-disabled computer terminals installed within the premises of the library or archive.
12.55 Mirror provisions can be found in s 110B in relation to reproductions of sound recordings, and cinematographic films, including the commercial availability test, and the restriction of online communication to computer terminals installed within the premises of the library or archive.
12.56 In 2007, three further exceptions were inserted into the Copyright Act: ss 51B, 110BA and 112AA. These provisions allow certain ‘key cultural institutions’ to make up to three reproductions of ‘significant works’, being ‘works of historical or cultural significance to Australia’ for preservation purposes. They are in addition to the provisions that apply to library and archives generally. The Supplementary Explanatory Memorandum noted that:
The policy for this exception is to ensure that key cultural institutions are able to fulfil their cultural mandate to preserve items in their collections consistent with international best practice guidelines for preservation.
Current exceptions are outdated
12.57 The exceptions are a good example of how prescriptive and rigid rules are inadequate for the digital environment. Stakeholders suggested that the limit of one copy for preservation purposes or three copies for a ‘key cultural institution’ no longer meets best practice preservation principles. Aside from ‘legacy’ works—such as old manuscripts and films—libraries and archives must also preserve materials that are ‘born digital’ in the face of ‘technological obsolescence’. Best practice preservation principles in relation to digital material require numerous copies to be made in multiple formats. For example, the ADA and ALCC suggested that effective preservation may require a ‘variety of processes including reformatting, migration and emulation’. Similarly the National Film and Sound Archive (NFSA) argued:
Items selected for digital preservation may be subject to back up copying, format-shifting, remote storage, quality control and administration, which can also involve reproducing, communicating or performing copyright material. This full range of activities needs to be covered by the proposed exception.
12.58 Stakeholders supported a more technologically-neutral exception that would not limit the number of copies and which would allow for format shifting.
12.59 Australian copyright academics 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. There appears little utility in having different preservation exceptions addressing ‘works’ and ‘subject matters other than works’ and different considerations for ‘original’ and ‘published’ works. As noted above, preservation of all copyright material is required in the interests of both users and copyright holders.
12.60 Recent copyright reviews in other jurisdictions have also recognised the need to give libraries and archives greater freedom to undertake preservation of copyright material. In the UK, the Government will implement recommendations from the Hargreaves review to allow libraries, archives and museums to copy any item for preservation purposes.
12.61 Similarly, the Copyright Review Committee (Ireland) recommended that the Copyright and Related Act 2000 (Ireland) be amended to allow heritage institutions to undertake format shifting for the purposes of preservation. In Canada, libraries and archives are permitted to make copies of works, whether published or unpublished, in its permanent collection if the work is deteriorating, damaged or lost, or is at risk of being so. Copying is also permitted if the library ‘considers that the original is currently in a format that is obsolete or is becoming obsolete, or that the technology required to use the original is unavailable or is becoming unavailable’.
12.62 The ALRC recommends that the Copyright Act 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. As a consequence, a number of existing exceptions should be repealed. These recommendations are consistent with the ALRC’s framing principles for reform and ensure that libraries and archives are able to preserve copyright material in the interests of both users and copyright holders.
Commercial availability requirement
12.63 In the Discussion Paper, the ALRC proposed that any new preservation copying exception should include a requirement that does not apply to copyright material that can be commercially obtained within a reasonable time at an ordinary commercial price. Cultural institutions uniformly opposed this proposal.
12.64 Many suggested that commercial copies are not the same as preservation copies. Commercially available digital works may not be in a format or quality that is suitable for preservation. For example, the NFSA submitted:
Commercial copies are intended to be efficient to mass produce and distribute widely, not to ensure the highest quality or long-term survival of their content. It is rare that commercially available copies will be in a format and quality appropriate for preservation.
12.65 The ADA and ALCC argued ‘if the work is in an unstable format then purchasing another copy simply means acquiring another problem of the same kind’. Others suggested that buying a copy of the work may not be appropriate where a work is a ‘limited edition work’. For example, the Art Gallery of NSW suggested that
in many cases preservation copying is needed to preserve a particular edition, or a particular copy with annotations or other features. The commercial availability of different editions, or copies without those features, does not assist.
12.66 Cultural institutions suggested that a consequence of a commercial availability requirement may be that libraries and archives delay undertaking preservation activities until such time as a work is no longer commercially available, by which time the work may have deteriorated. The NLA suggested ‘the ideal time for digital capture’ of a paper based item is at the beginning of the item’s existence.
12.67 Some stakeholders suggested that if a commercial availability requirement is to be retained, it ought to consider whether the format and quality of the available material is suitable for preservation. This would be consistent with similar provisions in other jurisdictions, where the commerciality requirement only applies if the commercial copy can ‘fulfil the purpose’ of preservation or is ‘of a medium and quality appropriate’ for preservation.
12.68 However, others argued that commerciality should not be a relevant factor because preservation, of itself, involves no market harm. The ABC considered that commercial availability ‘incorporates the commercial sector, for which the preservation of cultural material is generally not an objective or driver of behaviour, into the process of preserving cultural heritage’. Similarly, the Pirate Party echoed that preservation is ‘not a normal or consumptive’ use of a copyright work:
It seems irrelevant to restrict preservation to prevent commercial disadvantage when there is no market value in preserved content. Preservation copies do not prejudice the ability of the copyright holder to derive proﬁt from commercial sales: it is only when content becomes unavailable that preserved copies become relevant.
12.69 Preservation may be beneficial to rights holders who do not foresee the need or do not have the resources to preserve material to an archival standard. The NFSA suggested that ‘collection material is frequently used to develop new commercial release’ and that reduced preservation of material ‘disadvantages rights holders, as it decreases the likelihood that their material will be available into the future’.
Distinguishing between preservation and access
12.70 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. For example, the Arts Law Centre of Australia supported an exception provided that the new ‘preservation copying exception operates within commercial licensing arrangements that may be in place for the material for the reproduction and communication to the public of material held by libraries and archives’.
12.71 While the ALRC’s recommendations extend the preservation exceptions, the question of access is left to fair use, new fair dealing, or licensing solutions. In the case of fair use and new fair dealing, the fairness factors provide a framework in which to consider competing interests, including licensing solutions that are being offered.
Who benefits from the exception
12.72 A question that arises if the current exceptions are to be streamlined into one exception is who should benefit from the exception. The current exceptions distinguish between libraries and archives from ‘key cultural institutions’. Burrell and others questioned the policy reasons for the three-copy limit applying to ‘key cultural institutions’ and not other libraries and archives, because it is difficult to argue that only key cultural institutions are the repositories of significant works.
12.73 The ALRC agrees that the new preservation exception should apply not just to ‘key cultural institutions’. One option is for the exception to 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. For example, the Copyright Act 1985 (Can) defines a ‘library, archive or museum’ to mean
an institution, whether or not incorporated, that is not established or conducted for profit or that does not form part of, or is not administered or directly or indirectly controlled by, a body that is established for profit, in which is held or maintained a collection of documents and other materials that is open to the public or to researchers; or
any other non-profit institution prescribed by regulation.
12.74 This is already recognised to some extent in the Copyright Act. An archive is defined in s 10(4) to include ‘a collection of documents or other material of historical significance or public interest that is in the custody of a body, whether incorporated or unincorporated, is being maintained by the body for the purposes of conserving and preserving those documents or other material and the body does not maintain and operate the collection for the purposes of delivering a profit’.
Recommendation 12–2 The exceptions for preservation copying in ss 51A, 51B, 110B, 110BA and 112AA of the Copyright Act should be repealed. The Copyright Act should provide for a new exception that permits libraries and archives to use copyright material for preservation purposes. The exception should not limit the number or format of copies that may be made.
See, eg, NFSA, Submission 750 suggested that leaving preservation copying to fair use risks the potential for such activities to be licensed in the future, eroding the protection provided by fair use. This may have unintended consequences of reducing preservation activities due to licensing costs.
Copyright Act 1968 (Cth) s 10 defines a ‘work’ as a literary, dramatic, musical or artistic work. An artistic work is further defined to mean ‘an artistic work in which copyright subsists’.
Ibid, ss 51A, 51B deal with copying ‘works’ while ss 110B, 110BA and 112AA deal with subject-matter other than works, which includes sound recordings and cinematograph films and published works.
Ibid s 51A(1)(a).
Ibid s 51A(1)(b), (c).
Ibid s 51A(4)(a).
Ibid s 51A(3A).
Ibid s 110B. In relation to sound recordings, the provision refers to reproduction of a ‘first record’ of a sound recording or a ‘first copy’ of a cinematograph film.
Ibid s 51B (deals with manuscripts, original artistic works, published work); s 110BA (deals with: first record, or unpublished record, embodying sound recording; first copy or unpublished copy of a film; published film); s 112AA (deals with published editions of works).
Ibid ss 51B(1), 110BA(1), 112AA(1). The provisions define a ‘key cultural institution’ as one administering the library or archive with a statutory function of developing and maintaining the collection. Other institutions may be prescribed by the Regulations. Prescribed Institutions include: the Australian Broadcasting Corporation; Australian National University Archives Program; and the Special Broadcasting Corporation: Copyright Regulations 1969 (Cth) sch 5.
Supplementary Explanatory Memorandum, Copyright Amendment Bill 2006 (Cth), .
National Library of Australia, Submission 218; ADA and ALCC, Submission 213; ABC, Submission 210; National Archives of Australia, Submission 155.
For example, the National Library of Australia stated that in 2011, it made preservation copies of 16,235 works. See also, National Archives of Australia, Obsolescence—A Key Challenge In the Digital Age <www.naa.gov.au/records-management/agency/preserve/e-preservation/obsolescence.aspx> at 24 March 2013.
For example, International Standards Organisation contemplates a range of different archived copies, including: an archived master copy; an access copy; at least one backup copy which enables restoration in the event that a system is compromised; and at least one remote master copy. International Standards Organisation, Reference Model for an Open Archival Information System (OAIS) Recommended Practice (IOS 14721:2012), (2012), 8. See also United Nations Educational, Scientific and Cultural Organisation, Guidelines for the Preservation of Digital Heritage (2003), 93.
ADA and ALCC, Submission 868.
NFSA, Submission 750.
ADA and ALCC, Submission 213. See also State Records South Australia, Submission 255; Grey Literature Strategies Research Project, Submission 250; Australian War Memorial, Submission 188; Arts Law Centre of Australia, Submission 171; National Archives of Australia, Submission 155; Powerhouse Museum, Submission 137.
See Intellectual Property Office, Factsheet—Research, Libraries and Archives (2013). The current provisions in the Copyright, Designs and Patents Act 1988 (UK) only allow libraries and archives to make preservation copies of certain works, but not artistic works, sound recordings or films.
Copyright Review Committee (Ireland), Department of Jobs, Enterprise and Innovation, Modernising Copyright (2013), 176.
Copyright Act 1985 (Can) s 30.1(1)(a).
Ibid s 30.1(1)(c).
Australian Law Reform Commission, Copyright and the Digital Economy, Discussion Paper 79 (2013), Proposal 11–6.
ADA and ALCC, Submission 868; NFSA, Submission 750; National Library of Australia, Submission 704; CAARA, Submission 662; National Archives of Australia, Submission 595.
NFSA, Submission 750.
ADA and ALCC, Submission 586.
NSW Government and Art Gallery of NSW, Submission 740.
ADA and ALCC, Submission 586.
National Library of Australia, Submission 704. Similarly, the NFSA argued that it may be important to make a high quality photographic copy of a drawing as soon as possible after acquisition to ensure there is copy in another medium against which decay, such as fading of pigments, can be measured.
NFSA, Submission 750; NSW Government and Art Gallery of NSW, Submission 740; National Archives of Australia, Submission 595.
The Copyright, Designs and Patents Act 1988 (UK) s 42(2) restricts preservation copying to cases where it is not ‘reasonably practicable to purchase a copy to fulfil that purpose’. In Canada, preservation copying is not permitted where an appropriate copy is commercially available in a medium and of a quality that is appropriate: Copyright Act 1985 (Can) s 30.1(2).
Australian Society of Archivists Inc, Submission 630 arguing that simply preserving the material does not affect the ability of the owner to commercially exploit the material. See also, Pirate Party Australia, Submission 689.
ABC, Submission 775.
Pirate Party Australia, Submission 689.
For example, the NFSA advised that ‘rights holders often source copies of their copyright material from the NFSA as these tend to be the best preserved (or sometimes only) copies in existence from which new masters could be derived to enable commercial distribution’: NFSA, Submission 750.
Copyright Agency/Viscopy, Submission 249; ARIA, Submission 241; Australian Publishers Association, Submission 225; Pearson Australia/Penguin, Submission 220; Australian Copyright Council, Submission 219.
Arts Law Centre of Australia, Submission 706.
R Burrell, M Handler, E Hudson, and K Weatherall, Submission 278.
Copyright Act 1985 (Can) s 2.
Copyright Act 1968 (Cth) s 10(4). An explanatory note to the section states that museums and galleries are bodies that could have collections covered by the definition of ‘archives’.