11.12 The proposition that cultural institutions require greater flexibility to make use of copyright material is not new in copyright law reform. In 2006, the Australian Government inserted s 200AB into the Copyright Act. The intention was to provide cultural institutions with ‘a flexible exception to enable copyright material to be used for certain socially useful purposes while remaining consistent with Australia’s obligations under international copyright treaties’.
11.13 Section 200AB only applies to cultural institutions, educational institutions and users assisting those with a disability. For cultural institutions, use of copyright material is not infringement if it is:
- made by or on behalf of the body administering the library or archive;
- made for the purposes of maintaining or operating the library or archives; and
- not made partly for the purposes of the body obtaining a commercial advantage or profit.
11.14 Importantly, any use under s 200AB is subject to the three-step test language found in the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS Agreement). In order to be protected by s 200AB the use of the copyright material must:
- amount to a special case;
- not conflict with the normal exploitation of the work or subject matter; and
- not unreasonably prejudice the legitimate interests of the owner of copyright.
11.15 Further, the exception is only available if no other exception or statutory licence is available to the user.
Limited application in practice
11.16 Since its introduction, a number of guidelines have been developed by various groups to facilitate the use of s 200AB. Despite these guidelines, it appears that the provision has been used rarely. The Australian Digital Alliance and the Australian Libraries and Copyright Committee (ADA and ALCC) has argued that adoption of s 200AB has been slow:
The provision has not been used to a great extent because it is too limited, and cultural institutions are unsure about how to use s 200AB in accordance with their institutional risk management, relationship management and other policies.
11.17 Submissions from cultural institutions to this Inquiry broadly confirmed this view. For example, a number of those institutions stated that they had never used s 200AB. One particular exception was the Australian War Memorial, which found that s 200AB, in part, addressed the conflicting requirements under its statute to digitally preserve its collection while adhering to its obligations under the Copyright Act.
11.18 Others have used s 200AB in a limited way to facilitate the use of orphan works. For example, the Art Gallery of NSW stated that it relied on s 200AB for the communication and publication of works in exhibitions where the author is unknown or un-contactable after a reasonably diligent search. Similarly, the Council of Australian Museum Directors (CAMD) submitted that some museums have applied, with legal assistance, the test embodied in s 200AB in order to place material online.
Uncertainty in the language
11.19 The ADA and ALCC submitted that its consultations with cultural institutions suggested that many viewed s 200AB as ‘a failure’. A report attached to its submission argued that s 200AB was not working in practice because:
the incorporation of the three-step test into s 200AB has created a high degree of uncertainty as to its practical application and scope;
s 200AB(6)(b) appears to limit its operation;
the inability to circumvent technical protection measures (TPMs) for the purposes of s 200AB, combined with increasing use of TPMs on audio-visual works, has resulted in a growing number of works that fall outside the exception; and
the uncertainty surrounding the three-step test, combined with the general culture of risk aversion, has led cultural institutions to refrain from using the exception at all for fear of facing legal challenges. 
11.20 A number of submissions supported the view that incorporation of the language of the three-step test caused uncertainty, and therefore led to minimal reliance on the provision. In particular, stakeholders highlighted uncertainty around the meaning of ‘special case’ and were concerned about ‘the effort and knowledge required to rule out all other exceptions before using s 200AB’. Cultural institutions considered that they could not interpret the provision without legal advice. The combination of these factors deterred cultural institutions from litigation to determine whether a use is permitted by s 200AB.
11.21 Australian copyright academics suggested that lack of case law surrounding s 200AB has entrenched a narrow interpretation of the section in practice. That is:
if no one is willing to be the test case, it makes it difficult for industry practice to emerge, not just because of an absence of law, but because the muted practice themselves can end up justifying the interpretation of the exception as limited in scope, even if such an interpretation was never intended.
11.22 On the other hand, the Australian Copyright Council argued that slow uptake of s 200AB could be attributed to cultural norms and that the law is only part of the answer. It suggested that some of the problems associated with s 200AB could be overcome through agreed industry guidelines: for example, that agreement could be reached in relation to certain, common scenarios. A number of collecting societies agreed with this view. Copyright Agency/Viscopy argued that while there is a trade-off between ‘certainty’ and ‘flexibility’, the section:
is less ‘uncertain’ than some think. There are now a number of guides to the operation of s 200AB for libraries and other institutions. There is more commonality than difference in these guides, and we think there is scope to identify more common ground. The additional ‘confidence’ that some institutions would like can be achieved through a guide that is endorsed by representatives of both cultural institutions and organisations representing creators and publishers of content.
Fairness approach is familiar to cultural institutions
11.23 A number of cultural institutions called for s 200AB and for it to be replaced with something broader—like a fair use exception, or a flexible fair dealing right for cultural institutions.
11.24 In supporting a move to fair use, the ADA and ALCC argued that cultural institutions already take a ‘fairness’ approach to providing access to their collections in the digital environment. They argued that an exception based on ‘fairness factors’, would provide more certainty than the language in s 200AB:
One theme that was repeated in discussions with stakeholders was that the language of the three-step test is not as familiar or instinctive as the language of fairness … For example, Australians are used to assessing whether uses for research or study, or criticism or review are fair. In terms of determining the practical application of an exception based on fairness, there would also have been jurisprudence for would-be-users to draw upon.
11.25 In the educational context, Universities Australia expressed a similar view that university copyright officers have long been used to applying a fairness analysis.
11.26 Some Australian copyright academics agreed that the attitudes and behaviours of cultural institutions were ‘eminently suited to a flexible exception’, and that many had taken a ‘risk analysis’ approach in making works available. They queried why such ‘risk analysis’ did not lead to the conclusion that s 200AB would apply, and suggested that the reason for this might be that:
institutions found it difficult to connect these considerations to the TRIPS-based language that appears in s 200AB, and had internalised the view that the ‘special case’ requirement permitted only discrete uses of copyright works. To the extent there was uncertainty with s 200AB, this related not to the underlying concepts, but the particular language used in that provision.
 Explanatory Memorandum, Copyright Amendment Bill 2006 (Cth), [6.53].
Copyright Act 1968 (Cth) s 200AB(2)(a)–(c).
 Ibid s 200AB(1)(a)–(d). Section 200AB(7) defines ‘conflict with the normal exploitation’, ‘special case’ and ‘unreasonably prejudice the legitimate interest’ with reference to Article 13 of the TRIPS Agreement. See also, E Hudson, ‘Copyright Exceptions: The Experience of Cultural Institutions in the United States, Canada and Australia’, Thesis, University of Melbourne, 2011 where she states that ‘no-one who contributed to the [Fair Use] review had asked for such a provision, which is unique to Australian law’.
Copyright Act 1968 (Cth) s 200AB(6).
 L Simes, A User’s Guide to the Flexible Dealing Provisions for Libraries, Educational Institutions and Cultural Institutions (2008), Australian Libraries Copyright Committee and the Australian Digital Alliance’; Australian Copyright Council, Special Case and Flexible Dealing Exception: s 200AB (2012).
 Australian Digital Alliance and the Australian Libraries Copyright Committee, Response to the Engage: Getting on with Government 2.0 Draft Report (2009), 9.
 Australian Broadcasting Corporation, Submission 210; State Library of New South Wales, Submission 168, State Records NSW, Submission 160; Powerhouse Museum, Submission 137.
 Australian War Memorial, Submission 188.
 Art Gallery of New South Wales (AGNSW), Submission 111.
 CAMD, Submission 236.
 That is, s 200AB does not apply if a licence is available. For example, the Council of Australasian Archives and Records Authority was not clear on ‘whether s 200AB is even applicable for government archives where s 183(1) applies: CAARA, Submission 271.
 See Policy Australia, Flexible Exceptions for the Education, Library and Cultural Sectors: Why has s 200AB failed to deliver and would these sectors fare better under fair use? (2012), Report prepared for Australian Digital Alliance/Australian Libraries Copyright Committee: ADA and ALCC, Submission 213.
 R Burrell and others, Submission 278; CAARA, Submission 271; National Library of Australia, Submission 218; ADA and ALCC, Submission 213; National Gallery of Victoria, Submission 142; Powerhouse Museum, Submission 137; Art Gallery of New South Wales (AGNSW), Submission 111.
 National Library of Australia, Submission 218.
 For example, the Powerhouse Museum suggested that s 200AB ‘requires an in-house lawyer to provide us with an in depth analysis of how we could use it’: Powerhouse Museum, Submission 137.
 National Archives of Australia, Submission 155.
 R Burrell and others, Submission 278.
 The Australian Copyright Council suggested that transparency in the guidelines could be overcome by registration of such guidelines under the Legislative Instruments Act 2003: Australian Copyright Council, Submission 219. See also, Australian Directors Guild, Submission 226.
 APRA/AMCOS, Submission 247; ARIA, Submission 241; PPCA, Submission 240.
 Copyright Agency/Viscopy, Submission 249.
 R Burrell and others, Submission 278; CAARA, Submission 271; CAMD, Submission 236; National Library of Australia, Submission 218; ADA and ALCC, Submission 213; State Library of New South Wales, Submission 168; R Wright, Submission 167; National Gallery of Victoria, Submission 142; Powerhouse Museum, Submission 137.
 National Archives of Australia, Submission 155.
 Policy Australia, Flexible Exceptions for the Education, Library and Cultural Sectors: Why has s 200AB failed to deliver and would these sectors fare better under fair use? (2012), Report prepared for Australian Digital Alliance/Australian Libraries Copyright Committee.
 Universities Australia, Submission 246.
 R Burrell and others, Submission 278 ‘Relevant factors that informed their analysis included the nature and age of the copied work, whether the copyright owner could be ascertained and located or, if not, the likelihood that there existed an active copyright owner, and the accessibility and commerciality of the institution’s use’.