What is contracting out?

17.5 In this chapter, the term ‘contracting out’ refers to the practice of parties entering agreements that exclude or limit the operation of exceptions to copyright provided by the Copyright Act.

17.6 Such agreements may be in writing, or entered online in the form of a ‘clickwrap licence’ or other electronic contract. To enter a ‘clickwrap licence’, for example, the terms of the licence are presented to the user electronically, and the user agrees to the terms of the licence by clicking on a button or ticking a box labelled ‘I agree’ or by some other electronic action.[1]

17.7 Contractual terms in licensing and other agreements may require copyright users to contract out of exceptions—purporting to prevent users from relying on statutory exceptions and, for example, engaging in fair dealing with copyright materials.

17.8 Copyright owners may also limit permissible uses of copyright materials by imposing technological protection measures (TPMs) which prevent, inhibit or restrict certain acts comprised in the copyright. The use and circumvention of TPMs raises similar policy issues to those raised by contracting out, and TPMs can be used to enforce the terms of licences and other agreements.[2]

17.9 Legislative limitations on contracting out of statutory provisions are not uncommon, at least in consumer protection law. For example, under the Australian Consumer Law (ACL), a term of a contract is void to the extent that the term purports to exclude, restrict or modify legislative consumer guarantees, such as guarantees as to the fitness for purpose of goods or services.[3]

[1] D Clapperton and S Corones, ‘Unfair Terms in Clickwrap and Other Electronic Contracts’ (2007) 35 Australian Business Law Review 152, 154.

[2] The ALRC is directed not to duplicate work on TPMs being undertaken at international level and by the Attorney-General’s Department. See Australian Government Attorney-General’s Department, Review of Technological Protection Measure Exceptions made under the Copyright Act 1968 (2012).

[3]Competition and Consumer Act 2010 (Cth) sch 1, s 64.