156._org_ Australian Society of Archivsts

Full name: Cassandra Findlay

If you are making this submission on behalf of an organisation, please provide the name: 
Australian Society of Archivsts

Address:  Australian Society of Archivists Inc. PO BOX A623 Sydney South, NSW 1235

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In a period of diminishing resources for archives and archival programs, archives need to be able to take full advantage of opportunities for online exposure of their collections. Government policy as articulated in the National Cultural Policy Discussion Paper released by the Minister for the Arts in August 2011and the introduction of the National Broadband Network support this aim.

However there are a number of ways in which the current copyright exceptions for archives impede archives’ efforts in this area. Perhaps foremost of these is the limited presumption that copyright is assessed by a person making a specific decision about a specific piece of material. For example, if a government archive has accepted an entire recordkeeping systems consisting of hundreds of  thousands of documents, some of which are likely to have originated from outside government (such as a reports submitted by a consultant which is then captured into an agency’s recordkeeping system), and this system is approved for general public access, the natural method of delivering such access is to put the whole system online. In this scenario, document by document evaluation for breach of copyright is entirely untenable and beyond the implementation capability of any archival institution.
 
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The ASA contends that there are a number of problems with the operation of section 200AB of the Copyright Act 1968.
As noted above, Section 200AB, like the other copyright exemptions, is expected to be applied at the level of single specific use of a single specific item. There is no consideration of the economic impact on an archive attempting to fulfil its duties to preserve and make available its collection as a whole, or large sets of digital records in ‘sub collections’ within an archive.
The ASA would also argue for a distinction to be made in the Act between the records of businesses, governments, organisations and individuals that are kept as archives and ‘unpublished literary works’. It is our view that equating archives with unpublished literary works with potential market retail value is not useful or appropriate, not least because the copyright of unpublished materials never expires. Becoming part of the archive should mean that a record’s reproduction and publication is permitted and straightforward to implement in copyright terms (putting aside other access restrictions that might apply in law, by donation agreement or otherwise). For example, if a local government Council captures an architect’s drawing into its electronic recordkeeping system and that drawing is appraised as having permanent value as an archival record, there should be no need for that Council to seek the author’s permission to make it available on its website as part of a digital archives collection, providing other access restrictions permit.
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The definition of ‘archive’ it employs is extremely limited; by the naming of specific ‘privileged’ institutions who are permitted to avail themselves of the 200AB exceptions significant sections of Australia’s archival documentary heritage is ignored. Even if the Act were updated to include all the Federal, State and Territory archives institutions, it would leave out non government, church, independent school, university, corporate and community archives and many others. The definition is also inherently paper based and biased, giving special consideration of archives in the custody of institutions.  
Given the diverse nature of archives in society, and the fact that the very nature of archival institutions is currently subject to a great deal of change, including the advent of non-custodial digital archives, the ASA would argue for the removal of the concept of privileged institutions with a strictly custodial role in the copyright act. Rather, we would suggest that the definition of archives that are identified by designation within a process (irrespective of custody) is contemplated in the review of the Act, and that it is the records designated as archives that attract the privileged rights for copying and sharing, as opposed to bestowing these on certain institutions. This would not only accommodate the changing nature of archives in society but would mean the need to update the list of institutions would be removed. Care would need to be taken to ensure the concept of archives was not misused to enable claiming of privileges for commercial gain, but this would not be an insurmountable obstacle. An alternative option would be to link to public or official records definitions in the various State, Commonwealth and Territory Records or Archives Acts, to ensure that all holders of public records benefited from the removal of barriers to digital uses of these materials. However this option would mean disadvantage for non government and community archives.
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The ASA supports the recommendations made in the paper by Anita Heiss on this subject in 2010 that ‘consideration be given to amending the Copyright Act 1968 to provide moral rights (rights of attribution, no false attribution and cultural integrity) for Indigenous cultural groups whose traditions are drawn upon to create a copyright work’. In the digitisation of indigenous works naturally there must also be regard for secret / sacred restrictions, both in the digitisation process itself and in the use and sharing of the digitised materials.   

(Anita Heiss, Australian Copyright vs Indigenous Intellectual and Cultural Property Rights:
a discussion paper, The Australian Society of Authors, 2010 https://www.asauthors.org/files/pages/australian_copyright_vs_indigenous_intellectual_and_cultural_property_0.pdf)
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About the Australian Society of Archivists 

The Australian Society of Archivists (ASA) is Australia’s peak professional body for archivists. Our mission is to:  
                                         
Our members work in a wide variety of places. The Commonwealth, Territory and State governments, and some local governments, employ archivists to manage their archival records. Manuscripts libraries and other institutions which collect archives also employ archivists. Business corporations, religious bodies, universities and schools, museums, professional and trade associations, and community organisations are other examples of groups that employ archivists, and some members work as private consultants.
About archives
Archives are records created or received and accumulated by a person or organisation in the course of the conduct of affairs and preserved because of their continuing value. Historically, the term has often referred more narrowly to non-current records deposited or selected for deposit in an archival institution. Archival records do not come only as text on paper, but include every known form and format in which information can be fixed, including ‘born digital’ records such as websites or emails, or digitised copies of physical documents.
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