167. R Wright

Full name: Robin Wright

Question 1: 
Australian copyright law applies to a large amount of material whether or not the creator or other copyright owner ever wished to exercise their rights or exploit the material for economic return.  In such cases the automatic existence of copyright, and the lack of flexible exceptions that can respond effectively to the rapidly changing digital environment, can result in unnecessary inefficiencies for both users and creators.  The current copyright law and exceptions do not allow for the type of nuanced interpretation of the law necessary in the digital environment, where reusing copyright material is a critical part of community engagement with information and cultural material. 
This was noted by participants in the CMCL/IPRIA research project Cultural Collections, Creators and Copyright: Museums, Galleries, Libraries and Archives and Australia's Digital Heritage.  One participant noted "Under the coverage of copyright law we deal with an extraordinary variety of situations.  On the one hand there is real money and serious ... rights and at the other end often ... it's much more tied up with emotional feelings for family and there is no money ... So under that Act we're covering a variety of spectrum from straight commercial through to stuff about emotions and feelings."  Another stated that "I think copyright's part of the problem ... The fact that copyright is now such an all embracing thing ... There's just so much garbage [protected by copyright]".  This reflects the frustration of collecting bodies who are often prevented from using material in the digital environment even if the use is in the national interest and does not harm any economic interests.
Creators interviewed for the project also noted that the difficulty of complying with copyright rules could slow down creative processes and lead to "a very stifled kind of creativity".  There is now a generation of digital creator-users whose experience of creativity relies heavily on the reuse of material protected by copyright but are often unsure about how the rules apply to those practices.  It was noted that copyright law was "like alcohol prohibition back in the [old] days ... routinely ignored, for better or worse".  Artists are often unsure about what is permitted.  Comments included: "I often feel very uncomfortable thinking 'what the hell am I doing' in terms of legality and moral and ethical concerns ... I'd like to see greater clarity and opportunity for artists to have that clarity" and "...you're going to have to change the language of an entire generation who are used to being able to ... take the songs and the assets and kind of talk about them .. totally freely".
Further results from the CMCL/IPRIA research project Cultural Collections, Creators and Copyright: Museums, Galleries, Libraries and Archives and Australia's Digital Heritage are available in R Wright, A Kenyon, A Christie 'Collections, creators and copyright : Views of Australian cultural professionals' October 2009.

[Note: This submission is made in a personal capacity but draws on my experience working as a Research Fellow on the ARC funded CMCL/IPRIA research project Cultural Collections, Creators and Copyright: Museums, Galleries, Libraries and Archives and Australia's Digital Heritage 2007 - 2009 and as Copyright Manager at Swinburne University of Technology.]
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Question 6: 
There are situations where universities wish to move data storage or management to external services located in the 'cloud'.  This has led to concerns being expressed about whether this could risk copyright infringement if such services were used to deliver material under the educational statutory licences in Part VA anda Part VB of the Act. It is possible that material hosted by cloud computing services could be located outside of Australia's legal jurisdiction.  In such situations it is unclear if the protection from infringement under s.135E would still apply or if provisions requiring acts to be undertaken 'on the premises of an institution' such as s.135ZMB could still be utilised.
Cloud computing services have the potential to increase the efficiency of data management within universities, so it would be appropriate for the statutory educational licence provisions to be amended so that it is not an infringement for copyright material being used under these licences to be stored on or communicated from a server located in the 'cloud' as long as acceptable data security and access control procedures are in place.  The use of cloud computing services will potentiall increase the efficiency of IT systems and copyright exceptions should be drafted to take the use of such services into account.
Question 7: 
The existing provisions allowing certain private and domestic use of copyright material are technology-specific and scattered throughout the legislation in a way that requires users to have a detailed understanding of the structure of the legislation even to locate them.  A single principle-based exception written in a way comprehensible to users of the multiplicity of digital reproduction technologies now available would be preferable.
Question 8: 
To improve the simplicity and effectiveness of operation of the Act for users, as well as to future proof the legislation in light of potential future technological developments, the existing private and domestic use exceptions should be re-drafted and incorporated into one technologically neutral and principle based exception.  Having the private and domestic use exceptions scattered throughout the Act does not assist non-specialist users to understand what they are permitted to do and encourages individual rule-making decisions by poorly informed users about how copyright law works.  A single exception would allow consumers to make private and domestic uses of legally obtained material and encourage an environment where consumers were clear about their rights and the intention of the Act.
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Question 15: 
Creators who participated in the CMCL/IPRIA research project Cultural Collections, Creators and Copyright: Museums, Galleries, Libraries and Archives and Australia's Digital Heritage referred to the importance of transformative practices where creators reuse copyright material as part of their creative practice.  One comment received was "So it's not kind of straight reproduction, it's quoting or re-purposing or changing it a lot.  You're definitely borrowing from the intellectual property but you're extending it".  
The need for a transformative use exception in Australia's copyright legislation was also demonstrated in the 2010 Federal Court case EMI Songs Australia Pty Limited v Larrikin Music Publishing Pty Ltd [2011] FCAFC 47 concerning the iconic Australian children's round 'Kookaburra sits in the old gum tree' and the flute riff in the Men at Work pop song "Down Under". The case illustrated the important role of reference and quotation to musical creative practice and suggests a negative impact on creativity if creators believe that copyright law prohibits any transformative use of material from their wider cultural environment.  Transformative use is an important part of creative practice and is likely to become increasingly so in the digital environment.
Copyright law should allow certain fair transformative uses to be freely permitted to encourage creativity and provide Australian artists with the confidence to experiment and engage with different ways of using copyright material that don't damage the commercial use of the original.  As in US fair use law, any exception introduced in Australia to allow the transformative use of copyright material should include a requirement not only that the work has been used to create something new, but also the effect of the use on the potential market for or value of the original work.
The ability to make transformative uses of copyright material would also support the development of innovative education services in the digital environment.  The ability to undertake transformative uses of copyright material would assist in the development of media rich educational resources including for use in the non-commercial and open source areas.
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Question 19: 
There are significant differences betwen the analogue and the digital world in relation to preservation and exhibition practices, administrative requirements, discovery and access and educational practices within cultural institutions.  Because the library and archives exceptions have not evolved to address the changing activities of institutions in the digital environment, as part of the CMCL/IPRIA research project Cultural Collections, Creators and Copyright: Museums, Galleries, Libraries and Archives and Australia's Digital Heritage the researchers worked with the Arts Law Centre of Australia to develop a standard agreement for the non-commercial use of copyright material by cultural institutions.  This agreement allows creators/copyright owners to decide whether or not to permit a cultural institution to undertake certain non-commercial uses of their material in the digital environment.
The agreement incorporates a schedule which offers the creator/copyright owner the ability to select from a group of non-commercial uses, the ones that they would allow the cultural institution to use their material for without providing remuneration.  These are uses that are not covered by existing exceptions, but were still considered by some creators to be valid non-commercial ways for the institution to use their material without remuneration as part of their operations.  The uses included were drawn from the results of the research and discussion with the Collections Council of Australia.
The optional uses included in Item 2 of the schedule for creators/copyright owners to choose from are:
Administrative uses (related to the internal management, care and control of the Works including communication for valuation/insurance)
Digital exhibition – on-site (Works exhibited in either high or low resolution as required)
Digital exhibition – internet (available to the public worldwide for free) Low-resolution format / High resolution format
Information or curatorial/scholarly publications available for free Hard copy / Digital storage media 
Education kits available for free Hard copy / Digital storage media 
Promotional use (promoting the institution or exhibitions including the Works)  Except for following uses/media which are excluded                                     
All of these are uses that are important for the operation of a cultural institution in the digital environment but are not currently permitted under the libraries and archives excetions.
Copies of the agreement are available for purchase from the Arts Law Centre of Australia web site. 
Question 20: 
Section 200AB of the Act is not working adequately or appropriately for educational libraries.  The complex drafting and the use of terminology which is difficult to interpret for both legal and non-legal users, means that the provision cannot provide the flexibility it was intended to deliver. 
In the context of a university library, the section has been used in some cases to transfer material from an obsolete format (such as VHS video) to one that can be used in the modern educational environment.  However this requires following a complex multi-step process for each individual item and which has led to minimal reliance on the provision.  Staff often do not feel confident to determine if s.200AB could apply to any use other than as detailed in the internal procedure which covers only a very limited situation.  There is ongoing uncertainty about interpreting the terms ‘special case’, ‘normal exploitation’ or ‘unreasonably prejudice the legitimate interests’ without seeking expert advice for any specific situation.
The rapid change of digital technologies relating to the delivery of educational services means that there is need for a flexible exception that can be efficiently adapted to new reproduction and delivery technologies.  A flexible ‘fair use’ exception including fairness criteria which can be interpreted without legal advice is likely to be more effective than the existing provision in providing the flexibility needed for educational and other users in a rapidly changing environment.
Question 21: 
Participants in the CMCL/IPRIA research project Cultural Collections, Creators and Copyright: Museums, Galleries, Libraries and Archives and Australia’s Digital Heritage indicated that copyright law can create a practical barrier to the curatorial development and presentation of cultural programs.  Some interviewees considered it inappropriate that copyright law should limit the use of material that, in curatorial terms, has high value.
One indicative comment was "If you are handling certain sets of materials that have cultural characteristics that may be regarded as having a status of ... national interest ... or something like that, that do sit well outside any monetisation model, then there may be policy to be established that would allow you to mass digitise in the national public interest."
A range of suggested amendments to the Act and other avenues for change to support the digitisation and communication of works by public and cultural institutions drawn from the CMCL/IPRIA research project are canvassed in Kenyon, T & Wright, R., Whose Conflict? Copyright, Creators and Cultural Institutions, 2010 33(2) UNSWLJ 286.
Question 22: 
In 2008 CMCL/IPRIA with assistance from the Arts Law Centre of Australia undertook a survey of Indigenous Community Art Centres to investigate the attitudes of Aboriginal and Torres Strait Islander artists and Indigenous Community Art Centres to the reproduction of their artwork by cultural institutions.  This was part of the wider research project Cultural Collections, Creators and Copyright: Museums, Galleries, Libraries and Archives and Australia’s Digital Heritage.  
The most significant response from the survey was that artists and community art centres indicated their need to control all instances where their work was reproduced.  When asked whether there were situations where a cultural institution should not be allowed to make a reproduction at all, 100% of respondents said yes.  Reasons for this included: cultural sensitivity, death, if a story or painting is sensitive, secret or sacred or where inheritors may object to the use.  Another reason given was if the artwork would be in some way compromised or was to be used in a setting the artist would not want to be associated with.  The majority of respondents believed that an institution should be required to ask permission every time it wished to reproduce an artwork.  One respondent noted that this may be onerous for institutions but it enabled artists to control the use of their work.
A short report on the results of the survey was published in the Arts Law newsletter ART+law in late 2008.
Question 23: 
Interviewees in the CMCL/IPRIA research project Cultural Collections, Creators and Copyright: Museums, Galleries, Libraries and Archives and Australia's Digital Heritage noted that institutions held significant amounts of material for which they were unable to locate copyright owners.  As there was no legal guidance available some institutions were developing internal policies and risk management practices to deal with the potential risk of making such material available online.  Institutions reported making significant efforts to locate copyright owners often unsuccessfully.  One indicative comment from an institutional participant was: "I think the orphan work thing is an important thing for us.  A lot of ours [are not just] orphans so much as abandoned ... You know who owns it and you say to them 'listen I know you own this' and they say 'well, look, we owned that 40 years ago, we don't want to deal with it."
The issue of orphan works is particularly frustrating for cultural institutions.  With no legal mechanism available some institutions indicate they are effectively prevented from making material, which may have a very high level of cultural value, available online.
Uncertainty around the use of orphan works within cultural organisations can limit the dissemination of works held in these collections.  A research participant referred to the internal conflict around the issue - "Some institutions say well we have to be model citizens, you know the government has to be a model citizen therefore we can't infringe copyright.  We've got some people saying we should take a risk management approach, your mandate is to make the collection available, put it up there, other people saying no ... So there's a real conflict there."
Further results from the CMCL/IPRIA research project Cultural Collections, Creators and Copyright: Museums, Galleries, Libraries and Archives and Australia's Digital Heritage are available in R Wright, A Kenyon, A Christie 'Collections, creators and copyright : Views of Australian cultural professionals' October 2009.
Question 24: 
As with experience overseas it is likely to be difficult to frame an Australian legal scheme for the use of orphan works.  The potential challenges of creating a workable system for the use of orphan works here are illustrated by the comment of a participant in the CMCL/IPRIA research project Cultural Collections, Creators and Copyright: Museums, Galleries, Libraries and Archives and Australia's Digital Heritage who was critical of the idea that payment could be made to a collecting body in case a copyright owner was found in the future.  "I find difficulty with the idea that using an orphan work without permission of the creator is not OK, but is made OK if you pay money to a collecting society that has no relationship to the creator of the work ... There seems to be a push for a legal regime that is based on a zero tolerance approach, in the belief that any trivial infringement of anyone's copyright anywhere in the world for whatever reason is somehow bad for business."
Further results from the CMCL/IPRIA research project Cultural Collections, Creators and Copyright: Museums, Galleries, Libraries and Archives and Australia's Digital Heritage are available in R Wright, A Kenyon, A Christie 'Collections, creators and copyright : Views of Australian cultural professionals' October 2009.
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Question 28: 
The statutory licensing scheme in Part VA of the Act provides significant value to educational institutions as it allows copying of complete programs as well as format-shifting and copying for other institutions.  The ability to copy from digital and pay TV channels as well as free-to-air television means that the licence provides access to a wide range of audio-visual material for educational use.  The 2006 extension of the licence to post-broadcast podcasts from Australian broadcasters has also increased its effectiveness.
In the digital environment however, there is now extensive access to broadcast material throughout the community including often to material broadcast outside of Australia.  Teachers face a situation where broadcast content can be shifted to a more appropriate or useful digital format (under the Part VA licence) but other (potentially the same) audio-visual material is rigidly restricted to physical media (if commercially purchased).  The difference between broadcast content and audi-visual material delivered via different channels or mediums including the internet is increasingly difficult to explain in the digital environment.  Also the rise of YouTube means that a great deal of material is made available, with or without authorisation of the copyright owner, in an easily searchable and accessible format which teachers can easily embed into online delivery systems (for streaming from YouTube itself).  This has the potential to reduce reliance on the licence.
Any reduced effectiveness of the Part VA licence in the digital environment would appear to stem less from legal complexity and restrictions than from the complex and rapidly evolving audio-visual services, broadcasting technologies and business models.  There is increasing need for educational institutions to deliver rich media resources to students, and broadcast content plays an important role in this.  It is important that educational institutions continue to be provided with an effective and flexible way of providing access to broadcast material.
Question 29: 
The statutory licensing scheme in Part VB of the Act consists of highly complex media and format specific rules which are increasingly difficult to administer in the digital environment.  The complex drafting style and structure of the provisions makes the section almost impossible to understand, even for regular users, without an external interpretive layer.  The different rules applicable to hard copy works and works in electronic form are increasingly difficult to apply or explain in a convergent world. 
The repetitive style of the clauses in this section, with each clause combining broader administrative requirements (such as that a remuneration notice is in force) with minutely described usage rules (such as if a work in an anthology occupies not more than 15 pages, or whether 2 or more articles relate to the same subject-matter), makes the whole section almost impossible for non-specialists to interpret.  It also leads to considerable concern and uncertainty amongst both academic and administrative staff who often cannot remember the rules and feel the constant need to obtain advice.  In addition the ‘back-to-front’ drafting of many of the clauses that start with ‘no infringement’ sections and are then followed up with ‘does not apply’ sections that negate all or part of the earlier section in certain situations adds to the interpretive difficulty.  The very specific, and often media-based drafting means that the provisions are increasingly difficult to apply in specific situations.  Whether items are periodicals, anthologies, separately published, paginated etc. are concepts that are increasingly unclear and often irrelevant in the digital environment.
The development of new technologies or business models (such as cloud computing or open educational resources (OERs)) are not easily translated into the operation of Part VB and often cannot be incorporated into the existing structure without waiting for court cases to provide guidance on similar issues.
In addition the rapid developments in the publishing industry have rendered some of the requirements almost ineffective.  For example the requirement in ss. 135ZL, 135ZMD for reasonable investigation of whether the work is available ‘within a reasonable time at an ordinary commercial price’ has been interpreted as meaning that a textbook will be available within 6 months. This very long time-frame obviously no longer reflects the publishing practices of the industry.  Part VB would require significant revision to operate adequately and appropriately in the digital environment.
Question 30: 
The Australian Copyright Act 1968 contains a number of provisions that demonstrate an intention that some use of copyright material for educational purposes should be provided without any remuneration to the copyright owner.  These include performance for educational instruction under s.28, some uses of Fair Dealing for Research or Study (ss. 40, 103C) and the flexible dealing provision s.200AB.  The recent court decisions in the USA and Canada reconfirming the ability of educational institutions to undertake some uses for educational purposes without providing remuneration support a similar interpretation to that embodied in the structure of the Australian Act, that some educational use of copyright material does not require payment. 
Unfortunately the current structure of the statutory licences in Part VA and Part VB have in some cases limited the transfer these intentions into the digital environment.  In particular the ability to use material made freely available on the internet, to use insubstantial amounts of material, or to perform films or sound recordings in the course of educational instruction appear to have been eroded when using digital technologies to deliver what is effectively the same educational experience just delivered using new technologies.  Along with rigid definitions of ‘reproduction’ (including any instance of format-shifting) and ‘communication to the public’ this has reduced the effectiveness of existing provisions that permit free educational use in the Australian Act while drawing more activities within the ambit of the remunerated statutory licences.
Unremunerated exceptions are also provided in the Act for the activities of other commercial operators, in order to support the public benefit provided by their functions in the community.  These are notably ss. 42, 43(2), 103B, 104(c) which allow use of copyright material for news reporting and the provision of legal professional advice.  As with educational use, the law acknowledges the public benefit flowing from unremunerated exceptions that allow a base level of free use for certain socially valuable purposes.  Australia's legislation should continue to reflect the importance of a certain level of unremunerated use of copyright material for educational purposes alongside situations where educational institutions pay licence fees.
Question 31: 
The exceptions in the Act concerning use of copyright material by educational institutions should be amended in response to the digital environment to take into account the changed technological environment in which education services are delivered.  It is counterproductive if staff are not able to translate common educational practices in the analogue environment into the digital space.  Format shifting for the purposes of delivery in a different format should be acknowledged as a common practice not requiring additional remuneration as long as access is restricted to staff and students.  The inclusion of an easily applicable ‘fairness’ test or criteria that can be applied to determine the permitted non-remunerated use for educational purposes, as well as other personal uses, would streamline the overall copyright environment for users and encourage better community understanding of copyright.
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Question 34: 
There should be recognition that certain uses of copyright material by educational institutions for government administrative purposes, such as the DIISRTE requirement for the reproduction and storage of published articles by universities as part of the ERA and HERDC processes, are exempt from liability for copyright infringement as long as security measures are in place to protect the commercial interests of copyright owners.
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Question 40: 
Participants in the CMCL/IPRIA research project Cultural Collections, Creators and Copyright: Museums, Galleries, Libraries and Archives and Australia's Digital Heritage suggested that digital technologies themselves may provide some part of the solution for improving the access to content.  Creators suggested: "Perhaps an image could be imbued with its copyright [information] as ... some kind of meta-stamp that tells you exactly what the terms of use are so that they don't have to be negotiated with the artist, the image will tell you what the terms are.  They [could] become a contract in themselves ... the image or the piece of online material represents itself."  Another comment was: "In an online environment it's easier to track your hits or use, and a metadata infrastructure is a way of tracking that kind of use more accurately which would have benefits for both sides.  So you could quantify for sure how many users you had in the museum site relating to X and Y temporary exhibition online presence that you pay for."
Further results from the CMCL/IPRIA research project Cultural Collections, Creators and Copyright: Museums, Galleries, Libraries and Archives and Australia's Digital Heritage are available in R Wright, A Kenyon, A Christie 'Collections, creators and copyright : Views of Australian cultural professionals' October 2009.
Question 41: 
Question 42: 
Discussions with creators as part of the CMCL/IPRIA research project Cultural Collections, Creators and Copyright: Museums, Galleries, Libraries and Archives and Australia’s Digital Heritage demonstrated that creators whose material was included in public collections were concerned about economic returns that may be generated by cultural institutions through the use of their material.  Creators wanted to obtain a percentage of any economic returns that an institution generated through the use of their work even if the institution was a non-profit organisation.
Comments included "Further on, many artists are wondering if archival institutions are going to make money out of the use of this material" and "I am very happy for institutions to use my material if I know what that use means - content of use, who is using it and why.  I would prefer it, however, if there was some body that regulated this use, and ... gave me a percentage of return."
These comments suggested some form of licensing scheme for use of material by cultural organisations, however there was not broad support for the idea of new collective licences.  Participants at an associated workshop indicated that the range of media forms and rights used by cultural institutions would make any such scheme difficult to devise.  Cultural institutions noted that such a scheme may actually reduce their flexibility to enter individual contracts with creators for the use of material.
The CMCL/IPRIA research project did not reveal a strong interest in a statutory licensing scheme in the area.  Individual creators and Indigenous Community Art Centres were generally concerned to retain ongoing control over how their material could be used by cultural institutions as well as receiving returns for any economic use. One comment was "I would want it to be there freely available for research and dissemination for enjoyment; I wouldn't want it to be advertising a brand of coffee or something like that".
Further results from the CMCL/IPRIA research project Cultural Collections, Creators and Copyright: Museums, Galleries, Libraries and Archives and Australia's Digital Heritage are available in R Wright, A Kenyon, A Christie 'Collections, creators and copyright : Views of Australian cultural professionals' October 2009.
Question 43: 
Question 44: 
There are some instances where the statutory educational licences in Part VB is extended to cover material that is made freely available on the web to all other users.  It is inequitable that uses that are freely available to other parties in Australia and overseas should require remuneration from Australian educational institutions.  In particular the use of material made available on government, corporate and business web sites for information or publicity purposes where there is no intention to obtain remuneration from access to that material, should not fall under the Part VB licence.
A limited amount of educational use of any copyright material should be covered by a free-use exception and accessing material made freely available on a web site for educational purposes should not be considered remunerable under a statutory licence.
Question 45: 
These specific purpose-based fair dealing exceptions no longer reflect the complex usage environment for copyright material in the digital environment.  There are a range of uses providing significant public benefit that would not fall within one of these existing purposes.  In particular the use of short quotations in academic publications or providing visual information at public academic lectures in conferences or other industry events, should be covered by a fair use or fair dealing exception.  (See also response to q. 47)
General guidance on 'fairness' as the basis for such a provision would be a more flexible and effective way to structure such non-remunerated public interest exceptions than including a closed group of specific purposes.  By favouring particular activities, purpose-based exceptions already restrict the exercise of some publicly valuable acts and also potentially limit the development of future unanticipated and innovative uses in the changing digital environment.
Question 46: 
Question 47: 
The issue of using quotations of third-party copyright material for academic purposes is of significant concern in universities.  University staff often have considerable difficulty determining if the amount they wish to use would be considered less than a substantial part of a work under s.14 of the Act.  This leads to uncertainty when publishing academic articles or referring to third party copyright material outside the context of educational use within the university, such as in publications or at academic conferences.  Any future fair use or fair dealing exception aimed at allowing quotation should permit academic users and their publishers to include a deemed amount of a third-party copyright item as a quotation without seeking permission, but still be subject to an evaluation of fairness factors to allow for some flexibility.  In addition a condition of using the exception should be the provision of proper citation of the source of the underlying work.  Relevant fairness factors could include those used in the US copyright law §107 such as:
·         The amount and substantiality of the portion used in relation to the work as a whole; and
·         The effect of the use upon the potential market for, or value of, the work
An exception such as this would reduce a significant amount of friction in the academic publishing environment and introduce efficiencies for both academic authors and publishers.  It would ensure that Australian academic authors would be better able to exercise the acts permitted under Article 10 of the Berne Convention and would support broader participation in the digital academic environment in the 21st century.
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Question 51: 
The free-use exception in s.28 should be revised to reflect the realities of education delivery in the digital education environment.  This exception provides an important public benefit by enabling the performance and communication of works or other subject-matter in the course of educational instruction.  However it should now be modified to reflect the fact that in the digital environment a great deal of educational instruction is conducted online in virtual e-learning spaces rather than in physical classrooms.  The operation of digital education spaces requires the reproduction and communication of works and other subject-matter in order to deliver an equivalent educational experience for students in the digital environment.
The s.28 exception should be extended so that the reproduction and communication of works and other subject-matter via closed digital systems used to provide educational instruction is deemed to be non-infringing as long as the systems are only accessible by staff and students of the educational institution.
Question 52: 
The Act should be amended to include a broad, flexible exception which can be easily understood and complied with by a range of users.  The exception should be framed to reflect existing practices already recognised by the community as acceptable, such as non-commercial format shifting, display in the context of closed educational instruction, and quotation of short excerpts.  It should also include an easily understood list of ‘fairness’ criteria similar to those included in the US fair use exception (US copyright law §107) to assist users to feel confident making their own evaluation of how they are able to use copyright material in their own specific circumstance.
Question 53: 
Question 54: 
In the digital environment educational libraries enter licence agreements with a range of publishers and aggregators for the delivery of digital content to their students.  Many of these agreements are negotiated by the Council of Australian University Librarians (CAUL).  Most academic libraries enter contracts with a large number of such providers for the delivery of digital material to their users.  Currently the CAUL website lists approximately 450 different publishers or suppliers that offer digital material to CAUL members under commercial agreements, with the terms and conditions of the agreements offered by each made publicly available on the web site.
Each of those entities will offer different terms and conditions for the supply of their content.  Many of the agreements governing these arrangements are standard term agreements where individual libraries have little or no ability to negotiate changes to specific terms.
By entering into such agreements with different suppliers, libraries are altering their underlying operating environment from one universally governed by copyright law, to one governed by a complex web of different terms and conditions covering different users and uses.  The impact of this is particularly noticeable in the case of copyright exceptions that have been relied upon to provide services to library users.  A number of library services are based on existing exceptions such as the educational statutory licences (Parts VA & VB) and provisions permitting a library to reproduce and communicate works required for purposes such as inter-library loan (ss. 49, 50, 51).  Various commercial licence agreements for the provision of access to digital content may explicitly or under some interpretations of the terms, restrict how material provided under the licence can be used in the delivery of existing services.
Concerns about the ability to use material delivered under commercial licences via existing library services based on copyright exceptions stem from three main causes:
Libraries that enter licence agreements containing such terms may believe that they are unable to deliver material from a specific provider to users in the same way that they can deliver other material held in the collection.  This has the potential to fragment library services and undermine the public policy objectives underlying exceptions.
The following examination of some excerpts from a selection of publisher agreements (available on the CAUL website) demonstrate that some licence agreements contain examples of contractual terms that appear to expressly prohibit, or create confusion around whether an Australian library can rely on, the use of exceptions in the Australian Copyright Act 1968 to deliver licensed digital material via their existing library services.
Reference to foreign legislation
In Exhibit A Terms of Service, clause 1(a) from the standard Ebrary agreement (Ebrary Order Terms and Conditions (021805)) prohibits users from engaging in any acts ‘inconsistent with the principles of copyright protection and fair use’ and refers to the United States Code, 17 USC Sections 106-110.  Users can ‘make limited non-commercial use of small portions of the Materials to the extent permitted under United States law pursuant to the doctrine of fair use’.
Clause 1(b) of Exhibit A Terms of Service states that users cannot re-distribute the material ‘in any manner’ other than as expressly permitted in the agreement.
Use limited to those specified
The IG Publishing E-book End User License Agreement, iGroup (Asia Pacific) Ltd requires that licensees do not ‘knowingly permit anyone other than Authorized Users’ to use the licensed material.
Use otherwise allowed under an exception specifically prohibited
The Knovel Subscription Service License Agreement (draft) clause 5.8 prohibits a user incorporating the licensed material into ‘course packs or electronic reserve collections without the prior written permission of the Publisher’.  Clause 5.9 it states that material cannot be provided to a user at another library for ‘research or private study or otherwise’ and then adds ‘For avoidance of doubt, this Agreement does not permit interlibrary loans or document delivery’.
In the agreement CCH Australia Ltd Online Products: Higher Education Licence Agreement (seamless access) clause 1.2 expressly forbids certain activities including offering material for sale and includes ‘inter-library loans’ in the list.  However the clause also states that this is ‘subject to the provisions of the Copyright Act 1968 and the Copyright Amendment (Digital Agenda) Act 2000.
In the AustLit University Consortium Licence Agreement the Library Document Delivery clause states that the licensee must not ‘reproduce or communicate even under the Act’ the licensed material to anyone other than its own authorised users.
The IG Publishing E-book End User License Agreement, iGroup (Asia Pacific) Ltd agreement also expressly states that licensed material cannot be used for interlibrary loans.
These examples demonstrate that licence agreements do include terms that purport to exclude or limit a library’s ability to use the existing Australian copyright exceptions with licensed digital material.  This means that some material held in library collections may be subject to different usage terms than other material.
To ensure the continued delivery of appropriate and consistent library services in Australian libraries, terms that purport to exclude or limit existing or proposed new copyright exceptions should not be enforceable.
Question 55: 
In the digital environment access to an increasing amount of material is provided under the terms of licence agreements.  The Act should be amended to prevent licence agreements being used to contract out of existing exceptions such as s.28, the statutory educational licences (Part VA and VB), exceptions for reproducing and communicating works by libraries and archives under ss.49, 50, 51 and any fair dealing or fair use exceptions or any future exceptions intended to provide similar public benefits.
In the digital environment libraries are often not able to negotiate all the individual changes necessary to protect their ability to deliver material under exceptions in Australian copyright law, particularly with suppliers located in foreign jurisdictions.  So contracting out of copyright exceptions should be prevented under the Australian Act.  See answer to q. 54 above.
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