National Archives of Australia - Submission – Copyright and the Digital Economy
ALRC, IP 42, 2012
The Inquiry – Nil.
Guiding principles for reform
Question 2. What guiding principles would best inform the ALRC’s approach to the Inquiry and, in particular, help it to evaluate whether exceptions and statutory licences in the Copyright Act 1968 (Cth) are adequate and appropriate in the digital environment or new exceptions are desirable?
The National Archives of Australia (the Archives) supports the aim of reforming legislation to better support government archives to perform their role to make their collections widely available to the Australian people.  The Archives therefore supports Principle 4 as set out in the Issues Paper, promoting fair access to and wide dissemination of content, as vital for any legislative provisions affecting the ability of Australian archival institutions to make their collections accessible to the public.  The principle of fair access should balance the benefits of allowing the public to access via new technologies the holdings of archives in the interests of education, research and culture with the benefits from regulating access in line with copyright law. Access to archival records also supports the principles of democracy, accountability and governance in Australia.
In addressing fairness, it is relevant to consider that much material in copyright held in archives, and especially in government archives, could be disseminated widely to the great benefit of the community and with no real harm to the commercial interests of the copyright owners.  For archival institutions, the principle of fair access would mean that the benefits of allowing greater access to their collections would not conflict with the objectives of regulation aiming at protecting real economic interests and the encouragement of innovation.
It is the nature of material in government archives that its value lies in the evidence it provides for historical and cultural research and accountability of government.  In the interests of fair access, copyright legislation should provide protection for real commercial interests and prevent real harm to copyright holders and not unnecessarily regulate access to and use of archival material not created for commercial purposes or with intent of publication for monetary gain.
To provide fair access to archival material, the complexity of copyright law should be reduced.  The existing exceptions for archives and other cultural institutions consist of complicated provisions that are not easy to interpret and which are not appropriate for archival institutions with extensive holdings of material in copyright, mostly of a routine administrative nature.  These institutions have to respond to increasing public demand to access their collections and need copyright provisions that do not put unnecessary or expensive procedures in the way of giving wide access to archival holdings.
The Archives suggests that in recognition and support of the role of archival institutions as providers of content that informs and educates the public and supports democratic processes that the Archives, and other government archives, should continue to have a special status in the copyright regime with the provision of special exceptions.  Archival records of governments document events, policy decisions and interactions that affected the lives of individual Australians as well as the destiny of the country as a whole.  Copyright legislation should not unnecessarily interfere with statutory right of the public to access this information, including to access government archival holdings by means of new digital technologies.
Caching, indexing and other internet functions – Nil.
Cloud computing – Nil.
Copying for private use   
Question 10.  Should the Copyright Act 1968 (Cth) be amended to clarify that making copies of copyright material for the purposes of back-up or data recovery does not infringe copyright and if so how ?
The increasing online demand for access to archival material makes it imperative for archives to make extensive use of digital technology by converting paper-based material into digital format.  The amount of records and information created in digital format is also growing exponentially with increasing use by government of digital technology for conducting its business as part of the digital economy.  This means that records currently being created in government will be transferred to archives predominantly in digital form.  In this environment it is important that both the creators of records, for example,  government organisations, and archives have the necessary legislative framework which will allow them to manage, preserve and  provide public access to records created in digital format, including measures such as copying for the purposes of back-up or data recovery, without infringing copyright law.  This is particularly important for making multiple digital copies of administrative records which were created outside of government and received and maintained by government for administrative purposes.
Online use for social, private or domestic purposes - Nil.
Transformative use – Nil.            
Libraries, archives and digitisation         
Question 19. What kinds of practices occurring in the digital environment are being impeded by the current libraries and archives exceptions?
Online access is now the most effective way of providing wide access to archival collections. Users expect to not only find online descriptions of archival material, but to view digital copies of records as well.  This is achieved by the digitisation of material originally created in physical format, predominantly paper-based.  In addition to growing user expectation of obtaining access online directly to archival material, the government has mandated government organisations to provide information to the public online and conduct their business online.  Recommendation 6 of the Government 2.0 Taskforce of 2009 ‘to make public sector information open, accessible and reusable’ was supported by the Government’s response in May 2010.  By providing digital copies online, archives serve users who may not be able to travel to view original records but now can have access to archival collections from their preferred location.
Providing access to digital copies also reduces physical damage to hard-copy material by reducing the handling associated with making original records available to the public in the reading rooms of archival institutions.  Digitisation of material already in poor physical condition or which will deteriorate with time is also becoming the usual practice of archives.
The limit on the number of preservation copies currently allowed under the Copyright Act 1968 (Cth) (Copyright Act) for key cultural institutions do not facilitate digital preservation of material for which the institution is not able to exercise copyright.  The limit of only three preservation copies is not adequate in the digital environment as usually more than three are required if an archives to follow the best practice in digital preservation.  The same physical record may need to be copied in a variety of digital formats and sizes, from which numerous additional copies will be made as part of standard backup procedures.   Likewise s 51AA covering the making of copies for administrative purposes within the Archives does not take account of the multiple copying of works as a standard procedure in a digital environment.
The effects of the limitation on preservation copies are felt in government archives where archival holdings comprise predominantly material created by government organisations, in which the Crown owns copyright, with a significant component of material originating outside of government, received by government and incorporated into the official record. This portion of the official records in which the Crown does not own copyright is integral to the evidentiary value of the official records and requires preservation action including the making of digital preservation copies.
Section 51 restricts the reproduction of non-Crown copyright unpublished material by stipulating that copies may be made and communicated only after 50 years have passed from the death of individual creators, a date which is not readily discoverable.  This restricts reproduction only to older works and imposes a level of checking that is impractical for large scale digitisation projects.  Therefore Copyright Act provisions do not allow archival institutions to make their collections available online through large scale digitisation projects.  This is because the checking processes for the presence of non-Crown copyright material on government records and the removal of this material prior to digitising government files would make such projects prohibitively expensive and ultimately defeat the purpose of online access by removing from the online copies material that is integral to understanding the record.  There is no other provision to support the digitisation and online communication of archival material except perhaps for s 200AB but there is considerable doubt on whether this section can be used for this purpose.
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?
The operation of s 200AB presents archival institutions with sizable problems with its application.  These issues are evident in the Australian Libraries Copyright Committee’s A User’s Guide to the Flexible Dealing Provisions for Libraries, Educational Institutions and Cultural Institutions or in Anne Fitzgerald and Kylie Pappalardo’s  ‘Report to the Government 2.0 Taskforce: Project 4, Copyright Law and Intellectual Property’ in December 2009. 
Of particular note is the uncertainty of the scope and application of s 200AB with the inclusion of the Berne Convention’s “three step test” demands the application of “a complex test of uncertain scope” but the lack of legal precedents in Australian law and of definitive guidance on implementation of the three-step test presents Australian cultural institutions with great uncertainty on the practical application of s 200AB.  
For example, the requirement of subsection 1 paragraph (a) that the use “amount to a special case” is open to a variety of interpretations and it is not clear if large scale digitisation of archival material containing some third party copyright material is possible under the provisions of s 200AB.
The requirement of subsection 6 that no other exceptions in the Copyright Act can be used may mean that s 200AB cannot be relied on by government archives for which s 183 is available.
Due to such uncertainty, the reluctance on the part of archival institutions to base extensive digitisation and communication of collection material on a provision which is little understood, uncertain in scope, subject to various interpretations and untested in Australian courts can be easily understood.  The proposition in the Supplementary Explanatory Memorandum, Copyright Amendment Bill 2006 (Cth), provided that the provisions of 
s 200AB ‘might be determined by a court for example to allow a library or archive to make a use of a work where the copyright owner’s permission cannot be obtained…’ which, in our view, does not settle the matter.  The potential cost and uncertainty of outcomes of legal proceedings would not encourage any public institutions to enter legal proceedings in order to determine if its use of s 200AB is legal or not.
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?
As outlined in answers to the above questions, the Copyright Act should be amended to allow for greater digitisation and communication of works by publicly funded cultural institutions.  These institutions are mandated to preserve and make publicly available cultural resources including by means of digitisation and online communication.  To facilitate this role copyright legislation should have greater clarity and provide a wider scope of actions that cultural institutions can take in enabling online public access.
Ambiguity of definitions and scope should be eliminated, and the need to refer to specific legal cases or apply a number of threshold tests open to interpretation, such as those currently in s 200AB, should be avoided.
To allow archival institutions to take full advantage of possibilities offered by new technologies, any Copyright Act exceptions should not be limited to certain actions without taking into consideration the full scope of digitisation activities, for example, allowing only digitisation of archival material but not its ongoing communication online, or confining communication to a particular instance such as an exhibition.  Such restrictions preclude fairness of access and wide dissemination of archival collections especially when no detriment to copyright owners occurs.
In our view, any amendments to the Copyright Act should not create additional complexity and cost to public cultural institutions when they are trying to make their collections available especially through digitisation programmes. While decreasing cost of technological solutions makes digitisation and online communication achievable by many institutions, a requirement, for example, to carry out and document a reasonably diligent search for copyright owners for every document to be digitised will make such projects impractical.  Proposals of monetary deposits to a copyright licensing board or payments to a collecting society to be made by public institutions could add significantly to the costs of large scale digitisation projects. 
Amendments to the Copyright Act should reflect the appreciation that the overwhelming majority of non-Crown copyright material in government archives does not have any commercial value as intellectual property.  This material mostly documents interactions of private citizens with the government in relation to their rights, obligations and entitlements and the routine business of government.  After the business use of such material expires with the passing of time, the main value of these records lies in their potential use for social, political, family or economic research.
If these records of mostly administrative nature from government archives are digitised and made available online by public institutions, such actions will not discourage innovation nor will be detrimental to the copyright owners’ economic interests, while, on the contrary, any legislation which contains complex and cost-adding provisions will deter publicly-funded institutions from embarking on innovative projects of digitisation.
The situation described above is also true for archival institutions which hold non-government archives.  The majority of these records will be administrative records which were not created for material or commercial gain.
Amendments could take the following form: 
•	A broad flexible dealing exception such as proposed under Question 52 allowing for digitisation and communication of works in libraries and archives for non-commercial purposes where the use does not affect commercial interests of the copyright owners, and which is not limited by the current s 200AB provision. 
•	An amendment abolishing the perpetuity of copyright in unpublished works and establishing a limit to the length of time during which unpublished works remain in copyright from the date of creation.  Such a limit would allow digitisation and online communication of archival material, in which it could be determined, by their age, that all non-Crown copyright had expired, instead of the current s 51 which allows copies to be communicated to individuals and requires knowledge of the date of death of the creator.
•	An amendment stipulating that if an unpublished work or document (orphan or otherwise) held in a library or archives is of certain age, its copying and communication  should be permitted for fair or non-commercial use such as reference, study or exhibition.
•	An amendment providing a general permission to government archives to communicate online non-Crown copyright material once it is publicly available under relevant archival legislation as provided in the exceptions in the Copyright, Designs and Patents Act 1988 (UK).  Under such amendment third-party copyright material provided to government for administrative purposes could continue to be used for purposes of public administration, including public research in government archives, without infringing copyright or requiring payment of compensation. 
Question 22. – Nil.
Orphan works
Question 23. How does the legal treatment of orphan works affect the use, access to and dissemination of copyright works in Australia?
Apart from s 200AB, the legislation does not provide any exemptions for orphan works where the author cannot be identified or located and lays the same requirements for their copying and communication as on other works, this putting archival institutions at risk of infringement when they want to embark on digitisation projects or to disseminate these works online.
Question 24.  Should the Copyright Act 1968 (Cth) be amended to create a new exception or collective licensing scheme for use of orphan works? How should such an exception or collective licensing scheme be framed?
The Archives notes that a collective licensing scheme for use of orphan works is based on the assumption that every unpublished document has an author with an economic interest in that work who is entitled to remuneration.  The Archives also notes that it is unlikely that any payment for use of orphan works to an authorised collecting society whose members would not include authors of these works, would reach the authors.  Such an arrangement, therefore would not appear to promote the public policy aims of copyright legislation to provide fair remuneration for creative effort and to encourage innovation.  The creation of a licensing scheme for orphan works which have no commercial value as intellectual property and whose authors would not be economically disadvantaged by their public communication would  needlessly commercialise the process of public access to archival records.
It would be more appropriate to have an exception that will allow use of orphan works without involving remuneration.  Any such exception, however should not be confined to provisions for orphan works only.  The issue with works held in cultural institutions is wider than the inability to identify or locate an author.  Government archives hold large amounts of copyright material which has significant cultural, historical and evidentiary value but not commercial value as intellectual property.  Its wide dissemination through the use of new digital technologies can bring great benefits to the public in terms of understanding of their government, history and culture.  No economic disadvantage to the copyright owners would result from making this material available online. 
The situation of routine administrative documents authored outside government and held in official archives involves three issues under current copyright legislation.
Firstly is that of perpetual copyright in unpublished works.  This is a general issue for older works but particularly for orphan works as it leads to the problem that cultural institutions hold unpublished copyright works in which copyright endures indefinitely. The institutions holding the materials often cannot publish them (because the authors are unknown or untraceable) and by publishing so set a time limit on the duration of copyright. 
A second issue is that non-Crown copyright material held in government archives was not for the most part produced for a commercial purpose and has no commercial value as intellectual property.  Public institutions should be able to copy and communicate these purely administrative works from their collections for non-commercial purposes. 
A third issue is that material received by government is of low originality and yet receives the full protection of copyright law although moral rights and issues of attribution integrity are not relevant issues for such material.  Administrative records should not attract copyright protection. The effect is that copyright law affords full protection to letters and other records of government business which would not be expected to be published.
Data and text mining – Nil.        
Educational institutions – Nil.             
Crown use of copyright material – Nil.         
Retransmission of free-to-air broadcasts – Nil.          
Statutory licences in the digital environment – Nil. 
Fair dealing exceptions – Nil.       
Other free-use exceptions
Question 48.    Nil.
Question 49.    Nil.
Question 50. Should any other specific exceptions be introduced into the Copyright Act 1968 (Cth) ?
The Archives supports a free use exception that would permit government archives to copy and communicate non-Crown copyright material held in their collections that is open to public access under legislation without the need to seek permission from copyright owners or payment of remuneration.  This exception would be similar in intent and form to the administration exceptions in the Copyright, Designs and Patents Act 1988 (UK), which provides an example of the sort of exception that would ensure that copyright material provided to government by third parties for administrative purposes could continue to be used for purposes of public administration, without infringing copyright or requiring payment of compensation.
Question 51.    Nil.
Fair use 
Question 52. Should the Copyright Act 1968 (Cth) be amended to include a broad flexible dealing exception ? If so how should this exception be framed ? For example, should such an exception be based on ‘fairness’ , ‘reasonableness’ or something else ? 
For the benefit of archives, libraries and other cultural institutions the Archives supports the introduction of a broad flexible exception that would provide a certain and simple basis allowing archives to copy and communicate their collection material for the benefit of the public without infringing copyright and without payment of remuneration.  The exception might be based on the principle of reasonable use where the character of the work, the purpose of the use and the effect of the use are taken into account.  So there would be no infringement where a public institution copies and communicates for the public benefit works of low originality and of no commercial value as intellectual property and where no real harm would result to the copyright owners.  
Question 53.  Should such a new exception replace all or some existing exceptions or should it be in addition to existing exceptions?  Nil.
Contracting out – Nil.