131. The digital environment is changing the way in which libraries, archives and cultural institutions approach fulfilling their public missions to preserve and provide access to cultural heritage and knowledge. In particular, there is growing expectation that institutions will be able to provide public access to works held in their collections in digital formats—for example, via websites, online databases or online repositories.
132. Digitisation offers avenues for better preservation and wider dissemination of works, in less costly ways than previously possible. Libraries and archives consider access to their material to be in the public interest, as it delivers resources to ‘people from all walks of life … ranging from higher education and schools, through to the research community, business and creative industries’.
133. Digitisation may also offer benefits to copyright owners. For example, out-of-print works may now be able to generate returns that were not possible before. On the other hand, it may also result in a loss of control as to how works may be used, and may be detrimental to the owner’s economic interests.
134. Promoting fair access and wide dissemination of copyright works is a framing principle for this Inquiry, and an ongoing aim of copyright policy in Australia. For example, a stated aim of the Copyright Amendment (Digital Agenda) Act 2000 (Cth) was to ‘ensure that cultural and educational institutions can access, and promote access to, copyright material in the online environment on reasonable terms’, having regard to the ‘provision of adequate remuneration to creators and investors’.
135. This section asks whether the Copyright Act needs to be amended to permit greater digitisation of, and wider access to, works held by libraries and archives.
136. Digitisation of an analog work in digital format is a reproduction and may constitute copyright infringement. Similarly, the communication of a substantial part of a copyrighted work, for example, by showing it on a website, may also constitute copyright infringement. Institutions cannot digitise copyrighted works unless they can rely on a licence or assignment to use the work, or a statutory exception.
137. However, digitisation of out-of-copyright works by Australian libraries and archives is nevertheless occurring. For example, in 2007 the National Library of Australia, in collaboration with state and territory libraries embarked on its first mass digitisation project, the Australian Newspapers Digitisation Program. The program digitised out-of-copyright newspapers and, by 2011, was estimated to comprise 40 million news stories. The Library’s wider digital repository, Trove, contains over 304 million resources including books, pictures, music, maps and diaries and letters.
138. Libraries and archives note that a barrier to digitisation lies in the costs of clearing rights and the negotiation of individual licences, especially for mass digitisation projects. These problems may be exacerbated where a collection or archive involves large numbers of ‘orphan works’, whose copyright owners cannot be located.
139. Digitisation and wider dissemination of material raise particular issues in relation to Indigenous works. For example, Indigenous communities may consider that works are owned by a collective, rather than an individual, as part of an ongoing knowledge tradition. They may also claim ownership of the work in perpetuity. Moral rights issues may also arise. For example, where a traditional painting has been digitised and put on a website, an Indigenous owner may claim that the use is derogatory or a misuse.
Libraries and archives exceptions
140. There is no specific exception in the Copyright Act that covers mass digitisation projects or digitisation for the purposes of providing public access to works. However, there are a number of exceptions that allow libraries and archives to digitise collection items for defined purposes, such as:
responding to user requests or requests by other libraries for copies of published works for the purposes of research and study;
certain reproductions, when made by or on behalf of researchers;
the preservation of manuscripts, artistic works, sound recordings; and
replacing a published item that is not commercially available.
141. Professor Andrew Kenyon and Emily Hudson argue that the current libraries and archives exceptions cover specific circumstances, and do not ‘extend to providing general digital access to institutions’ collections’. For example, the exception that allows reproduction of published works acquired in electronic form, in response to user requests, only permits libraries and archives to communicate on their premises via copy-disabled terminals.
Flexible dealing exception
142. Section 200AB permits any use of a work that is made ‘for the purpose of maintaining or operating the library of archives’. Section 200AB can only be relied upon if there is no other exception available under the Copyright Act, and the use must meet the three-step test under the Berne Convention.
143. While s 200AB might allow certain copying and communication of material necessary for digitisation projects, reliance on it appears to be limited in Australia. For example, the Australian Digital Alliance has argued that:
Adoption of s 200AB has been slow. In operation, the provision has failed to provide certainty for copying of works by cultural institutions. 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.
Options for reform
144. The ALRC welcomes comments on whether the libraries and archives exceptions are working effectively in the digital environment. For example, should the Copyright Act be amended to permit a wider range of digitisation practices by libraries and archives—for example—mass digitisation of a collection? Are there other practices occurring in the digital environment, beyond digitisation, that should be covered by the current exceptions?
145. If not, is there a need for a specific exception dealing with digitisation for libraries and archives? How should such an exception be framed? For example, should the exception allow libraries and archives to digitise, but not communicate, all of its collection, including orphan works and copyright works? Should the exception be confined to a particular purpose, such as an exhibition?
146. The ALRC also invites submissions on whether a specific exception is required to permit the communication of digitised works by libraries and archives, and if so, on what basis. Should communication be limited to non-commercial use that does not interfere with the copyright owner’s market? Would the introduction or use of collective licensing models—for example, as discussed in the orphan works context—provide a solution where digitisation involves commercial use?
147. Another option is for a broad and flexible exception based on a concept of ‘fair’ or ‘reasonable’ use that may permit the use of digitised works, especially where the use does not interfere with the copyright owner’s market.
148. In considering the issue of digitisation, the ALRC welcomes submissions on what copyright issues may need to be considered in relation to Indigenous works.
Question 19. What kinds of practices occurring in the digital environment are being impeded by the current libraries and archives exceptions?
Question 20. Is s 200AB of the Copyright Act 1968 (Cth) working adequately and appropriately for libraries and archives in Australia? If not, what are the problems with its current operation?
Question 21. Should the Copyright Act 1968 (Cth) be amended to allow greater digitisation and communication of works by public and cultural institutions? If so, what amendments are needed?
Question 22. What copyright issues may arise from the digitisation of Indigenous works by libraries and archives?
 Ibid s 10(4) defines an archive to include public museums and galleries which could have collections of documents or material of significant historical significance or public interest that is in custody of the body, and is being maintained for the purposes of conserving and preserving those documents.
 See E Husdon and A Kenyon, ‘Digital Access: The Impact of Copyright on Digitisation Practices in Australia Museums, Galleries, Libraries and Archives’ (2007) 30(1) UNSW Law Journal 12, 13 and M Dawes, ‘Setting the Orphans Free’ (2010) 18(4) Australian Law Librarian 289.
 E Derclaye (ed), Copyright and Cultural Heritage: Preservation and Access to Works in a Digital World (2010), viii.
 National and State Libraries Australasia, Digitisation Research Project (2011), 3.
 M Williams and C Andrews, ‘Why the Foundations of Copyright Remain Sound in the 21st Century’ (Paper presented at 15th Biennal Copyright Law & Practice Symposium, Sydney, 13 October 2011), 12.
Copyright Amendment (Digital Agenda) Act 2000 (Cth) s 3(d).
Copyright Act 1968 (Cth) ss 31(1), 85(1), 86, 87 and 88. The Act defines ‘communicate’ to mean ‘make available online or electronically transmit (whether over a path, or a combination of paths, provided by a material substance or otherwise’: s 10(1).
 National Library of Australia, Australian Newspapers Digitisation Program <www.nla.gov.au/ndp/> at 20 July 2012.
 National Library of Australia, Trove: Current work counts by zone <http://trove.nla.gov.au/system/counts> at 2 August 2012.
 See E Husdon and A Kenyon, ‘Digital Access: The Impact of Copyright on Digitisation Practices in Australia Museums, Galleries, Libraries and Archives’ (2007) 30(1) UNSW Law Journal 12 who alludes to the wider problem of ‘gridlock’: where multiple copyright owners cannot be located; M Warren, Getting the Orphans out of the Orphanage: Risk management and orphan works at the State Library of Queensland (2009).
 See the section ‘Orphan works’.
 N Nakata and others, Australian Indigenous Digital Collections: First Generation Issues, Final Report (2008), 10.
 K Bowrey, ‘Indigenous Culture, Knowledge and Intellectual Property: The Need for a New Category of Rights?’ in K Bowrey, M Handler and D Nicol (eds), Emerging Challenges in Intellectual Property (2011).
Copyright Act 1968 (Cth) ss 49 (relating to user requests), 50 (relating to inter-library loans).
 Ibid ss 51(1), 110A allow old, unpublished works, sound recordings and films held in publically accessible collections to be reproduced and communicated for the purposes of research and study.
 Ibid s 51A(2).
 Ibid ss 51A(1)(a), 110B(1)(a), 2(a).
 Ibid ss 51A(1)(b)–(c), 110B(1)(b)–(c), 110B 2(b)(c).
 A Kenyon and E Hudson, Copyright, Digitisation and Cultural Institutions (2004), Intellectual Property Research Institute of Australia, Occasional Paper No 3/04, 12.
Copyright Act 1968 (Cth) s 49(5A).
 Ibid s 200AB(2)(a).
 Ibid s 200AB(7) in effect incorporates the three-step test found in the TRIPS Agreement and the Berne Convention: Berne Convention for the Protection of Literary and Artistic Works (Paris Act), 24 July 1971,  ATS 5 (entered into force on 15 December 1972), art 9(2).
 Australian Digital Alliance and the Australian Libraries Copyright Committee, Response to the Engage: Getting on with Government 2.0 Draft Report (2009), 9.
 See the section ‘Fair use’.