Technological protection measures and contracting out

12.92 Some cultural institutions raised issues relating to temporary protection measures (TPMs). The ADA and ALCC were concerned about the

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.[134]

12.93 The ADA and ALCC called for ‘mirrored exceptions permitting circumvention of TPMs where an exception for digitisation or fair use or proposed legislative alternative exists’.[135]

12.94 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 for ‘reproduction and communication of copyright material by libraries, archives and cultural institutions for certain purposes’ are needed.[136] The Terms of Reference direct the ALRC not to duplicate work in relation to this review.

12.95 However, as discussed in Chapter 20—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. For the reasons stated in that chapter, the ALRC recommends that contracting out of fair use should be possible, but if fair dealing is implemented, there should be limits on contracting out of fair dealing and specific exceptions for libraries or archives.