218._org_ National Library of Australia

Full name: Linda Beatrice Groom

If you are making this submission on behalf of an organisation, please provide the name: 
National Library of Australia

Address: Canberra, ACT 2600

Question 1: 
In the National Library’s view, Australia’s copyright law inhibits the Library’s endeavours to introduce new ways of delivering information and imposes unnecessary costs and inefficiencies on those wanting to make use of the in-copyright material in the Library’s collections.  The Library makes a significant investment in enabling Australians to discover the information resources they are seeking (e.g. through the discovery service Trove) but often they are unable to access that information because copyright acts as a barrier. A broad range of interests are represented in the people and organisations that use the Library’s collections and services, including educators, scholars, people engaged in life-long learning, publishers seeking content and creators seeking information and inspiration. The Library considers that Australian copyright law should contribute, as the Library does, to Australia’s future as a nation of inquiring minds.
The inquiring minds of Australia are increasingly approaching the National Library through the Internet. The National Library receives an average 24,169 questions per year from offsite users.  Over 85% of these inquirers indicate that their starting point has been the Library’s web site (including the online catalogue), or a search engine that led them to the Library’s web site.[1] Surveys have also shown that around 30% of Australian inquiries received through the Library’s online inquiry service ‘Ask a Librarian’ are from rural and regional Australians[2]; this illustrates the importance of digital communication channels in overcoming the isolation of these Australians from major libraries. Most inquirers now expect to receive the information they have requested in digital form.  Australian copyright law needs to adapt to allow public institutions such as the National Library to deal efficiently with the high volume of use through digital channels.  
The ten-year average of inquiries received by the Library from offsite is 24,169; a survey in 2011 indicated that 22% of these, equating to 5317 per annum, are from people seeking information about copying and copyright[3].  The high percentage of inquiries related to copying and copyright is a reflection of the desire of Australians to adhere to copyright law. It is also a measure of the potential for increased efficiency and effectiveness from changes to the Copyright Act. A further measure of this potential is the proportion of requests for copies which the Library is obliged to decline. In 2011/2012 the National Library was unable to supply 4,430 (38%) of the 11,637 copy requests received from individuals, and 12,277 (45%) of the 27,301 requests received from other libraries on behalf of individuals[4]. A range of reasons prevent supply; Australian copyright law is one of the reasons. The Library’s submission makes a number of proposals aimed at increasing the percentage of supplied requests, in ways in which, in the Library’s view, are both socially beneficial and do not unreasonably prejudice the rights of the copyright owner.
The National Library of Australia is a member of the Australian Libraries Copyright Committee and supports the ALCC submission to the Copyright and the Digital Economy Inquiry. The National Library has chosen to make a separate submission to provide additional and more detailed evidence based on the Library’s experience in digitisation of its collections, collecting and preserving material in digital format and supplying digital copies to requesters.

[1] Client Enquiry Trends from 2002 to 2012, by Heather Clark. National Library internal file R12/86190.
[2] Client Enquiry Trends from 2002 to 2012, by Heather Clark. National Library internal file R12/86190.
[3] Client Enquiry Trends from 2002 to 2012, by Heather Clark. National Library internal file R12/86190.
[4] National Library internal file R12/96513.
Question 2: 
The National Library’s comments on the principles listed in the Issues Paper, and a suggested additional principle, are listed below.
Principle 1: Promoting the digital economy
Reform should promote the development of the digital economy by providing incentives for innovation in technologies and access to content.
The National Library believes that the term ‘digital economy’ should be interpreted broadly, to include the contributions made to the Australian economy by formal education, self-education,  health services, social services, volunteer work and unpaid domestic work, as well as by commerce, agriculture, mining and industry. People from all of these sectors use the Library’s collections and services.
The Library also believes that the Library’s digital collections should be considered as a resource which forms part of Australia’s digital economy. The Library’s digital collections at the end of June 2012 contained 1604 terabytes of data[1]. This data includes the Library’s harvests of Australian internet content and 7,690,150 digitised pages of Australian newspapers[2].
Principle 2: Encouraging innovation and competition
Reform should encourage innovation and competition and not disadvantage Australian content creators, service providers or users in Australian or international markets.
In supporting this principle, the National Library would like to emphasise the importance of the Copyright Act’s support for ‘research or study’ exceptions in encouraging innovation. Research and study, supported by the Copyright Act and fueled by the collections and services of libraries, play a critical role in innovation in Australian government policy, law, science, medicine and business. Research and study also create the climate which allows innovation to flourish – a nation of nimble minds that are engaged in life-long learning and that are quick to assess and adopt new practices.
Principle 3: Recognising rights holders and international obligations
Reform should recognise the interests of rights holders and be consistent with Australia’s international obligations.
See comments on Principle 4.
Principle 4: Promoting fair access to and wide dissemination of content
Reform should promote fair access to and wide dissemination of information and content.
The National Library supports both principles 3 and 4 of the Issues Paper, but would prefer to see them combined and framed as a single principle of balance between the recognition of the interests of rights holders and recognition of the interests of content users. We consider the concept of balance as apt because any Australian may occupy more than one position within the process of creation, dissemination, re-interpretation and new creation. Libraries constantly serve this balance of interests through gathering works, preserving them and making them accessible.
Principle 5: Responding to technological change
Reform should ensure that copyright law responds to new technologies, platforms and services.
The National Library supports the principle of technological neutrality in the Copyright Act.
Principle 6: Acknowledging new ways of using copyright material
Reform should take place in the context of the ‘real world’ range of consumer and user behaviour in the digital environment.
The National Library supports this principle, and proposes that, where the Inquiry identifies user behaviour that does not unreasonably prejudice the interests of copyright owners, the solution should be to permit that behaviour through exceptions rather than to establish further licencing infrastructure.
Principle 7: Reducing the complexity of copyright law
Reform should promote clarity and certainty for creators, rights holders and users.
The National Library supports this principle and agrees that the consequence of reform should not be the unnecessary addition of further complications to an already complex statute and that there is considerable scope for changing the Copyright Act to make it simpler. Some recent reforms, specifically the addition of section 200AB, have not promoted clarity due to ambiguity and uncertainty in interpreting concepts such as a ‘special case’.
The Library does not agree, however, with the exclusion from the Inquiry, as outlined in paragraph 42, of other changes which would make the Copyright Act clearer without substantive change. As one example, the Library argues elsewhere in this submission for changes to the exceptions which permit preservation copying. In supporting this argument, the Library proposes that the preservation copying exceptions should be based on the principle that the number and format of copies should be limited by their preservation purpose rather than in technology-specific terms. If accepted, this argument would allow the consolidation or at least the shortening of the various sections of the Copyright Act that deal with preservation copying (such as sections 51B, 110 B, 110 BA, 112AA). Such a change would combine substantive change with non-substantive change. In the Library’s view, the Inquiry should not rule out such opportunities to simplify the Copyright Act.
Principle 8: Promoting an adaptive, efficient and flexible framework
Reform should promote the development of a policy and regulatory framework that is adaptive and efficient and takes into account other regulatory regimes that impinge on copyright law.
The National Library supports this principle. On a very conservative estimate, a total of 261 decisions requiring interpretation of the Copyright Act are made every working day by National Library staff [3].    Any simplification of the Copyright Act which can make this process more efficient would be extremely welcome. The Act should also avoid situations where the time and skill required to make a decision to copy are so great that they effectively act as a barrier to a ‘yes’ decision. The requirement for all other exceptions to be exhausted before 200AB can be used is one example of such a situation.
In addition, the National Library proposes the following principle:
Principle 9.  Recognising the concept of duration of copyright
The Copyright Act should not support any measure which has the effect of restricting a work in perpetuity.
 Such restrictions tip the balance of Copyright law permanently towards past creators and away from new creators. Aspects of the Copyright Act’s support for technological protection measures and its support of perpetual copyright in unpublished manuscripts both have the effect of restricting a work indefinitely. The Library’s proposals for duration of copyright in unpublished material appear elsewhere in this submission.  The Library has made a separate submission to the Inquiry into Technological Protection Measures (TPM) Exceptions ; included in that submission is a proposal that publications harvested by the Library under updated legal deposit legislation should  be TPM-free.

[1] National Library of Australia Balanced Scorecard report, June 2012. Table 18a.
[2] http://trove.nla.gov.au/ndp/del/about, accessed 14 November 2012
[3] National Library of Australia internal file R12/96932. In addition the Library’s in-house rights management system makes 385 automated decisions; the system estimates by algorithm the copyright status and duration of new works added to the Library’s collections, each working day – National Library of Australia internal files R12/100685 and R12/100690
Question 3: 
The efficient performance of search engines is critical to the work and research of the National Library’s users and staff.  The Library supports any changes to the Copyright Act which are necessary to allow efficient and effective caching and indexing[1].

[1] Summary from National Library IT Division Branch Heads meeting 17 October 2012
Question 4: 
The efficient performance of search engines is critical to the work and research of the National Library’s users and staff.  The Library supports any changes to the Copyright Act which are necessary to allow efficient and effective caching and indexing[1].

[1] Summary from National Library IT Division Branch Heads meeting 17 October 2012
Question 5: 
Because of the volume of data stored by the National Library, and the need for data security, the National Library does not use cloud computing, and has no comments on this question[1].

[1] Summary from National Library IT Division Branch Heads meeting 17 October 2012
Question 6: 
Because of the volume of data stored by the National Library, and the need for data security, the National Library does not use cloud computing, and has no comments on this question[1].

[1] Summary from National Library IT Division Branch Heads meeting 17 October 2012
Question 7: 
 Since the Issues Paper (paragraph 71) notes that this question relates to private use, the National Library has no comments on this question.
Question 8: 
The National Library routinely digitises collection material, an activity which could be regarded as format-shifting. Since the Issues Paper (paragraph 71) notes that this question relates to private use, the Library has no comments here. The Library’s comments on digitisation are mainly in response to question 21.
Question 9: 
Since the Issues Paper (paragraph 71) notes that this question relates to private use, the National Library has no comments on this question.
Question 10: 
The Issues Paper, in paragraph 71, implies that question 10 is one of a group of questions that relate to private use. Because copying of copyright material for the purpose of back-up or data recovery is central to the Library’s role as a collecting institution, the Library wishes to comment on Question 10 in relation to institutional use.
The Library follows industry standards in creating three back-up copies – two onsite and one offsite – of all its programs and data. Some of this data consists of digital copies made by agreement with copyright owners in decades before the concept of computer back-up was widely understood. In addition, the Library does not own copyright in its harvested content of Australian web sites. The Library is uncertain of the extent to which the Copyright Act supports the Library’s back-up copying.  The Act appears to focus on back-up of computer programs, and mentions back-up of data only in passing in section 47 C 2b.
The Library assumes that changes to the Act to provide clarity in this area would be broadly welcome.
Question 11: 
Question 12: 
The National Library’s support for changes which would introduce a broad fair use exception, outlined in questions 52 and 53, encompasses support for freer use of copyright materials for social, personal or domestic purposes. In addition the Library’s answers to question 19 highlight some practical difficulties that the Library faces in determining whether some uses are for research or study, or for social, personal or domestic purposes.
Question 13: 
The National Library’s support for changes which would introduce a broad fair use exception, outlined in questions 52 and 53, encompasses support for freer use of copyright materials for social, personal or domestic purposes. In addition the Library’s answers to question 19 highlight some practical difficulties that the Library faces in determining whether some uses are for research or study, or for social, personal or domestic purposes.
Question 14: 
The National Library welcomes transformative use of the material in its collections, with appropriate acknowledgment and attribution. The Library contributed to the Library Hack project[1].

[1] http://libraryhack.org/
Question 15: 
Question 16: 
Question 17: 
Question 18: 
Question 19: 
The National Library’s response to this question covers two main areas where the current exceptions impede copying – preservation copying and copying in response to requests. The response also touches on the question of whether the ease with which digital copies can be replicated encourages misuse of exception-permitted copies supplied by libraries.
Preservation of its collections is a critical part of the National Library’s responsibilities. Digital copying is now the Library’s preferred method of preservation copying. The Copyright Act needs amendment to bring its preservation copying exceptions into line with the practicalities of digital copying.
All sections of the Copyright Act which permit the National Library to make preservation copies limit the number of those copies to three.  The Library presently makes more than three such copies, for the reasons outlined in the examples listed below.
The Library devotes significant resources to preservation copying – in 2011/2012 for instance, digital preservation copies were made of 16,236 works[1].  With the passing of time, the need to make preservation copies of parts of the collection, such as the hundreds of thousands of acetate photographic negatives, will ensure the Library continues to make high volumes of preservation copies. The preservation sections of the Copyright Act are thus a matter of significance to the Library.
In the Library’s view there is no reason to limit the number of preservation copies to three. There has always been a need to retain a series of copies of works to track deterioration over time. The number of such copies of any one work thus inevitably accumulates. With digital preservation, normal, industry-accepted back-up practices add yet more copies. In the Library’s view, the interests of the copyright owner are served by the careful preservation of a copy of their work.
For these reasons the Library proposes that the limit of three copies be removed from the preservation exceptions of the Copyright Act and replaced with a purpose-based limit, such as ‘limited to the number of copies required to preserve the work’. The Library also proposes that the preservation sections of the Act should use the uniform and technology-neutral term ‘copy’ to replace the present variety of terms - ‘ reproduction’, ‘facsimile’ and ‘comprehensive photographic reproduction’  - and that the opportunity be taken to simplify the Act by consolidating the present scattered sections on preservation copying.
Example 1. Preservation copying of original drawing for war poster, by Norman Lindsay
The work: Norman Lindsay, 1879-1969. God bless dear Daddy who is fighting the Hun and send him help / [1918?] 1 drawing : crayon and wash ; 63.7 x 50.8 cm. Part of Lindsay, Norman, 1879-1969. Collection of Norman Lindsay original drawings for recruiting posters and pamphlets, World War, 1914-1918. nla.pic-an6227935. This drawing is in copyright, by death date of creator.
The National Library copied this drawing by traditional photographic means prior to 2000. The main purpose of the copy was to minimize handling of the original. A secondary purpose, limited by the fact that the copy photograph was black and white, was to create a record of the physical condition of the drawing.  In 2002, the Library made a digital preservation copy of this drawing, in colour, for the same purposes. The digital master copy was copied to produce a ‘co-master’; in co-masters, any limitations in the digitising equipment or support are edited to produce the clearest possible image (though no edits are made which could give a misleading impression of the preservation state of the original). Three lower resolution copies are made to allow Library staff to access the digital image quickly.
Where a work is out of copyright or the Library has the copyright owner’s permission, the digital preservation copy may also be the source of copies used for public access. The copyright status of the drawing of God bless dear daddy … (unlike a published poster by Lindsay with the same title) does not, however, permit public access. It is visible only to staff who access the Library’s internal Digital Collection Management System, where it carries a ‘Restricted – Copyright’ status.
As part of the Library’s routine procedures for backing up data, further copies are made - two held onsite and one offsite.  The original black and white photographic copy has been retained because it is the earliest visual record of the physical state of the original drawing. The total number of copies is thus well in excess of three, but each copy plays its role in helping the Library’s conservators preserve the original work.
Examples 2, 3 and 4: Preservation copying of works already in digital format
The works: 
Animal production in Australia : proceedings of the Australian Society of Animal Production ... biennial conference. Sydney : Pergamon, 1980-[2000]. Later issues are available on CD-ROM. Access Conditions :  Restricted to licenced organisations with IP address and password.
Wiyanma, wanggama : see it, say it : a Banyjima wordlist with sounds and pictures / compiled by Peter Hill ; Banyjima spoken by Nyabaru Stevens ; prepared by Wangka Maya Pilbara Aboriginal Language Centre.     [4th ed.]. South Hedland, W.A. : Wangka Maya Pilbara Aboriginal Language Centre, 2012. xi, 157 p. : ill., col. map ; 30 cm. + 1 DVD (4 3/4 in.)
Joint study on aviation capacity in the Sydney region. [Canberra : Dept. of Infrastructure and Transport, 2012]. xvi, 378 p., [46] folded leaves : ill., maps ; 30 cm + 1 DVD-ROM (4 3/4 in.)
The National Library selected the electronic documents within these three works for preservation copying because of their importance in documenting the achievements of Australian agriculture, in recording Indigenous language, and in documenting an issue of national public interest. The Library has stored the preservation copies in the Library’s internal ‘Prometheus’ system. For each work, the following copies were made:
•	A “disk image” which is a copy of the CD or DVD at the bit level, which would allow the Library to make a CD or DVD again if necessary.
•	A copy of all of the files from the CD or DVD, which allows conservators easy access to individual files, and provides insurance against the possibility that we may not be able to interpret the disk image at some future time due to loss of the required software, of the hardware needed to run the software, or of the technical knowledge required.
As part of the Library’s routine procedures for backing up data, two local online and one remote offline backup of each of the above are kept. In the long term, further copies may need to be made, to give the best likelihood that these three works will be readable with the software and hardware of the future. In making future copies, the Library may be forced by the inability of future hardware and software to handle the formats of 2012, to make copies that preserve the intellectual content but lose some aspects of the format. For this reason, amongst others, the Library will retain the earlier preservation copies.
Elsewhere in this submission, the National Library proposes that the fair dealing exceptions of the Copyright Act 1968 (Cth), the exceptions for libraries and archives, and the exceptions permitted by section 200AB, be incorporated into an exception of fair use. Within the umbrella of fair use, the National Library proposes that existing exceptions be retained, as illustrating, but not defining, the extent of fair use. For these reasons, the Library submits the comments below on the current exceptions.
Since the introduction in 2002 of the National Library’s Copies Direct service, which allows individuals with access to the Internet to request copies of Library material directly, the number of requests from individuals has increased from less than 2000 requests in 2002 to over 13,000 in 2012[2]. This increase has highlighted an issue with copying under Section 49 (5) of the Act, which allows a library to provide a copy of an entire published work provided that the purpose is research or study and the work is not obtainable new in a reasonable time at an ordinary commercial price.  The National Library is currently declining to provide copies in cases where such works are requested for purposes which combine research or study with other uses. These purposes cover a spectrum. At one end of the spectrum are purposes which in the Library’s view should be clarified in the Copyright Act as research or study or covered by a new ‘fair use’ provision.  At the other end are purposes more closely related to personal enjoyment.
The following examples, of copying requests for sheet music, cookery books, and posters and maps, cover the spectrum described above.
b.1 Copying of sheet music
Under Section 49 of the Copyright Act the Library may supply copies of entire published works, provided the purpose is research or study and the work is not obtainable new in a reasonable time at an ordinary commercial price. Where such requests are for sheet music, the Library declines to provide copies because of uncertainty that ‘study or research’ includes the study of music. The uncertainty arises from the fact that the playing of a musical instrument, while a necessary part of any practical study of the instrument, involves an element of performance. The Library’s view is that playing an instrument at home, or during a private session with a music teacher or examiner, should count as ‘study’, and/or be considered as an example of fair use, and that this should be clarified in the Copyright Act. If in the ALRC’s view it could be clarified by an authoritative statement outside the Copyright Act, the Library would be equally happy with that solution.
The requests for sheet music reflect the nature of the Library’s Music Collections: a number of them are for songs that had a brief period of popularity in Australia many decades ago. Many of the requesters are engaged in self-tuition. In 2011/2012, the National Library received 767 requests for copies of sheet music, and declined to supply 358[3]. The uncertainty described above is the major cause of the Library’s inability to meet these requests.
Examples listed below show the range of the requests for copies of sheet music. The common characteristics of the examples are:
•	The request was for an entire copy of published sheet music
•	The requester perceived their purpose as ‘research or study’ and volunteered additional information that they wanted to play the work at home or in lessons or a music examination
•	The work was not obtainable within a reasonable time at an ordinary commercial price
•	The Library considered the request was not permissible under the present Copyright Act exceptions and declined the request.
Example 1: Request for copy of 1952 sheet music, to play at home
The work: China doll / by Gerald Cannan and Kenny Cannan.  Sydney: W.H. Paling & Co., c1952. 1 score (2 p.)  
The request:  Request for copy of entire work. ’Research or study’ conditions agreed. Requester note: “To play at home”. Request received 28/06/2011. National Library request no. CDC-10269185.
Availability search: Amazon.com ‘china doll cannan sheet music’ – no hits; APRA/AMCOS ‘works search’ by ‘Cannan’ – zero hits; Sheet Music Direct – zero hits on Cannan, another work (not this one)  by search on ‘china doll’; General Google search – found a site listing the lyrics but no sites in first 2 pages of results listing this work; musicroom.com (the online shop of the Music Sales Group)  lists a China Doll by another composer (Legrand) but not this work.
Example 2: Request for 1972 sheet music for guitar student
The work: Don Andrews guitar, essential technique. Author: Andrews, Don, 1929-2012. Sydney: J. Albert & Son, 1972. 88 p.
The request:  Request for copy of entire work. Requester note: "I am a guitar student and will use the book to further my study of guitar playing”. Requester declaration:  I will use the copy only for the purpose of research or study, I will not use it for any other purpose and declare that it has not previously been supplied by an authorized …"  Request received 8/01/2012. National Library request no. CDC-10304773.
Availability search: albertmusic.com by title – no hits, also ‘Don Andrews’ not listed in ‘artists and songwriters’ ; sheetmusicdirect.com – not listed in first 2 pages of results (results are mainly Andrew Lloyd Webber works); APRA/AMCOS ‘works search’ by title ‘Don Andrews’ – zero hits;  amazon.com  - search on “don Andrews” “sheet music” = no hits; musicroom.com on ‘Don Andrews’ – no results in first 2 pages (first 2 pages are all Andrew Lloyd Webber works).
Example 3: Request for 1974 sheet music to play in music exam
The work: Giga: oboe and piano. Author: Holford, Franz, 1907-1994. Sydney: J. Albert & Son, c1974.  1 score ([2]) p. + 1 part. Albert edition 345. AE0345X
The request:   Request for copy of entire work. Requester note:    "for the AMEB grade 3 oboe exam. Music out of print and piano part mislaid.” Requester declaration:  I will use the copy only for the purpose of research or study, I will not use it for any other purpose and declare that it has not previously been supplied by an authorised officer … .Request received 5/10/2011. National Library request no.:  CDC-10287884.
Availability search: sheetmusicdirect.com – search on ‘Holford’ no hits, APRA/AMCOS – title search on ‘Giga’ –found  sound recording but not sheet music; musicroom.com – search on Holford -  3 hits by Holford but not this work; Amazon.com – search on “holford” “sheet music” – no hits.
Example 4: Request for 1973 sheet music for synthesizer to ‘read and learn for myself’
The work: Playing the synthi.  Author: Hartmann, Per.  London: Synthesizer Music Services, c1973. ii, 173 p.
The request:  Request for copy of entire work. Requester note: “Read and learn for myself.” Requester declaration: I will use the copy only for the purpose of research or study, I will not use it for any other purpose and declare that it has not previously been supplied by an authorised officer …  Request received 7/05/2012. National Library request no.: CDC-10329964
Availability search: sheetmusicdirect.com – search on ‘ playing the synthi’ no hits, APRA/AMCOS – title search on ‘playing the synthi’ – no hits ; musicroom.com –‘ search on ‘synthi’ no hits ; Amazon.com – search on “playing the synthi” “sheet music” – no hits.
Example 5:  Request for 1953 sheet music to play at home
The work: I want to be evil / words and music by Raymond Taylor, Lester Judson. Melbourne: D. Davis, c1953.  1 score (5 p.)  Pl. no.: B.6376D.
The request:  Request for copy of entire work. Requester note: “At home personal use”. Requester declaration:  I will use the copy only for the purpose of research or study, I will not use it for any other purpose and declare that it has not previously been supplied by an authorised officer … . Request received 21/08/2011. National Library request no. CDC-10278940.
Availability search: sheetmusicdirect.com – search on ‘ I want to be evil’ no  hits, and on ‘Taylor’ no hits in first 2 pages which were mainly Taylor Swift and James Taylor;  APRA/AMCOS – works search on ‘I want to be evil’ – one result but it is for a performed recording not  sheet music ; musicroom.com – search on ‘I want to be evil’ found other works but not this work ; Amazon.com – search on “I want to be evil” “sheet music” – no hits.
Example 6: Request for 1948 sheet music for study and practice
The work:  Clancy of the Overflow: song / poem by A.B. (Banjo) Paterson... ; music by Albert Arlen, 1905-1993. Londo : Ascherberg, Hopwood & Crew ; Sydney : Chappell & Co., c1948. 1 score (7 p.). Pl. no.: A.H.& C. Ltd. 11990.
The request:  Request for copy of entire work. Requester note: "Music study and practice”. Requester declaration:  I will use the copy only for the purpose of research or study, I will not use it for any other purpose and declare that it has not previously been supplied by an authorised officer … . Request received 29/03/2012. National Library request no.: CDC-10322552.           
Availability search: sheetmusicdirect.com – search on ‘overflow’ one hit but by a different composer, APRA/AMCOS – works search on ‘Clancy of the overflow’ – work found, but only as sound recording performed by London Symhony Orchestra, not this sheet music ; musicroom.com –‘ search on ‘Clancy of the overflow’-  two results but neither of them is this sheet music hits ; Amazon.com – search on “Clancy of the overflow” “sheet music” – no hits.
Example 7:  Request for 1983 sheet music for harpsichord to play at home
The work:  Suite francaise: for harpsichord / Herbert Murrill. Twickenham, Middlesex: Editio Abbas, c1983. 12 p. of music.
The request:  Request for copy of entire work. Requester note"To play at home”. Requester declaration:  I will use the copy only for the purpose of research or study, I will not use it for any other purpose and declare that it has not previously been supplied by an authorised officer …  Request received 16/11/2011. National Library request no.:  CDC-10296464.
Availability search: sheetmusicdirect.com – search on ‘ Murrill’  hits, APRA/AMCOS – works search on ‘Suite francaise’ – 14 works with this title but none composed by Murrill ; musicroom.com –‘ search on ‘Murrill’ – seven hits but none of them = this work ; Amazon.com – search on “Murrill” “sheet music” – several works by Murrill but not this work.
Example 8:  1967 sheet music to play on the piano at home
The work:  How small we are, how little we know / words and music by Earl Wilson, Jr ; [arr. by Frank Metis]. Pyrmont, N.S.W. : Festival Music Pty. Ltd., c1967. 1 score (4 p.) ; 28 cm. Publisher's no.: 201. Terms of Use : Copyright 1967 by Glamorous Music, Inc., New York, N.Y.
The request:  Request for copy of entire work. Requester note: "For myself playing on the piano”. Requester declaration:  I will use the copy only for the purpose of research or study, I will not use it for any other purpose and declare that it has not previously been supplied by an authorised officer …  Request received 2/09/2011. National Library request no.: CDC-10281444.
Availability search: sheetmusicdirect.com – search on ‘ how small we are’- this work is not in first 2 pages of results which were listed as ‘sorted by closest matches’, and no hits on ‘metis’, APRA/AMCOS – works search on ‘metis’ – no hits ; musicroom.com –‘ search on ‘how small we are’ and also on ‘metis’- this work not in first 2 pages ‘sorted by closest matches’; Amazon.com – search on “How small we are” “sheet music” – no hits.
Example 9: Request for 1950s sheet music to ‘play on my Victalele’
(A victalele is a rare Australian novelty instrument somewhat like a zither.)
The work:  Aloha oe: lesson 13 : music specially prepared for playing on the Victalele / by Gordon Allan Publishing Co. Melbourne :, [195-?] [2] p. Notes: "Australia's own popular stringed instrument".
The request:  Request for copy of entire work. Requester note: "Play on my Victalele”.  Requester declaration:  I will use the copy only for the purpose of research or study, I will not use it for any other purpose and declare that it has not previously been supplied by an authorised officer … .Request received 26/09/2011. National Library request no.: CDC-10286127.
Availability search: sheetmusicdirect.com – search on ‘ Aloha oe’ found 4 works with this title but not this work for the Victalele, APRA/AMCOS – works search on ‘aloha oe’ – many works with this title but none appear to be for Victalele, also searched on ‘victalele’ no hits ; musicroom.com –‘ search on ‘victalele’ no hits ; Amazon.com – search on victalele “sheet music” – no hits.
Example 10: Request for 1958 sheet music for personal singing
The work:  Light of love / words and music by Charles Singleton.  Melbourne : D. Davis & Co., c1958. 1 score ([2] p.)  Music Publisher Number B.7659.D.
The request:  Request for copy of entire work. Requester note: "personal singing”.Requester declaration:  I will use the copy only for the purpose of research or study, I will not use it for any other purpose and declare that it has not previously been supplied by an authorised officer … . Request received 27/09/2011. National Library request no.:  CDC-10286352.
Availability search: sheetmusicdirect.com – search on ‘ Singleton’  - no hits in first 2 pages of results ‘sorted on closest matches’, APRA/AMCOS – works search on ‘Light of love’ – many works with this title but none by this composer ; musicroom.com –‘ search on ‘singleton’- several hits but none was this work ; Amazon.com – search on: light of love singleton “sheet music” – no hits.
Example 11: Request for 1927 sheet music for self-tuition at home
The work:  Shefte rapid course for piano: in popular music & syncopation. Book 2. Author:  Shefte, Art.  Sydney: J. Albert & Son, [1928], c1927. 85 p.
The request: Request for copy of entire work. Requester note: “Home use - teach myself piano”. Requester declaration: I will use the copy only for the purpose of research or study, I will not use it for any other purpose and declare that it has not previously been supplied by an authorised officer … .  Request received 6/10/2011. National Library request no.: CDC-10288344
Availability search: sheetmusicdirect.com – search on ‘ Shefte’ no  hits; APRA/AMCOS – works search on ‘Shefte’ – no hits ; musicroom.com –‘ search on ‘Shefte’ one hit but not this work ; Amazon.com – search on Shefte “sheet music” – this work appears but only second hand.
Example 12:  Request for sheet music for World War II song to play at home
The work:  Bungin' 'em in! / words and music by W. Graeme-Holder. Auckland [N.Z.] : E. Allan Brooker Ltd., [between 1939 and 1945?] 1 score ([4] p.)
The request:  Request for copy of entire work. Requester note:  “Personal home use on the piano”. Requester declaration:  I will use the copy only for the purpose of research or study, I will not use it for any other purpose and declare that it has not previously been supplied by an authorised officer …  Request received 23/10/2011. National Library request no.: CDC-10291732.
Availability search: sheetmusicdirect.com – search on ‘ Bungin’ no hits, APRA/AMCOS – works search on title ‘Bungin’ – no hits ; musicroom.com –‘ search on ‘Bungin’ this work not in first 2 pages of results  sorted by closest matches; Amazon.com – search on Bungin “sheet music” – no hits.
b.2 Copying of cookery books
Recipe books play an important role in Australia’s domestic economy. The National Library receives requests for copies of out of print recipe books. The volume of such requests is low, for example, 3 requests in 2011/2012. Such requests, however, often represent a final stage in a search process that has taken the requester considerable effort, and can be prompted by a wish to re-learn skills from a book that was present in the requester’s childhood home. The requesters declare their purpose as research or study, but the Library has not accepted these declarations because the purpose has appeared to contain an element of personal enjoyment along with an element of self-tuition, and the application of Section 49 in such cases seemed unclear.  The requests also did not appear to be special cases.  
The Library suggests that the Copyright Act facilitate the copying of books such as recipe books that provide instruction in domestic skills and crafts and that are not available new in a reasonable time at an ordinary commercial price. The Act could facilitate this by extending the definition of research or study to include self-taught domestic skills, and/or categorising such copies as examples of fair use, or by some other method.
Example 1: Request for 1989 cook book for cooking at home
The work: Mama Vittoria's pasta cookbook / Vittoria Tonin, 1940- . Fitzroy, Vic.: Five Mile Press, 1989. 94 p., [8] p. of plates. ISBN 0867882492.
The request:  Request for copy of entire work. Requester note: "personal interest in cooking at home”. Requester declaration:  I will use the copy only for the purpose of research or study, I will not use it for any other purpose and declare that it has not previously been supplied by an authorized …  Request received 11/09/2011. National Library request no. CDC-10283068.
Availability search: publisher web site  http://www.fivemile.com.au/  no search box, browsed their author list – Tonin not there;  Google search  linked to Booktopia, Dymocks and Fishpond – all report no copies for sale; noticed 2 sites selling second hand (Books and Collectibles and Books for Cooks).
Example 2: Request for 1983 recipe book for cooking at home
The work: Eating for immortality. Sydney: Raja Yoga Centre, 1983. 128 p.: ISBN  0959227105. 
The request:  Request for copy of entire work. Requester note: “To cook at home. I just want all the recipes, especially the one for tomato chutney”.  Requester declaration:  I will use the copy only for the purpose of research or study, I will not use it for any other purpose and declare that it has not previously been supplied by an authorized …  Request received 27/05/2012. National Library request no. CDC-10334145.
Availability search: publisher web site – nothing under ‘Raja Yoga Centre Sydney’ but publisher may have changed name to Brahma Kumaris:www.bkwsu.org/au/BKaustralia, where a search of their book shop’s search box on ‘ Eating for immortality’ produced no hits ; Google search on ‘Eating for immortality’ found no results linked to a book store; Amazon.com – no hits.
Example 3: 1981 cook book to replace lost copy 
The work: A heritage of Indian cooking / by Joseph Cotta. 2nd edition.  Noosa Heads, Qld.: Joseph's Shalimar Indian Restaurant, 1981. 125 p. ISBN  0959429905.
The request:  Request for copy of entire work. Requester note: “A favourite cookbook that I lost in a move”. Requester declaration: I will use the copy only for the purpose of research or study, I will not use it for any other purpose and declare that it has not previously been supplied by an authorized …  Request received 28/01/2012. National Library request no. CDC-10308772
Availability search: publisher web site – the restaurant has changed hands since the book was published, no hits ; Google search found no results linked to a book store; Amazon.com – listed but no copies available; second hand copy listed but not available at Biblioz.
b.3 Copying of works ‘to hang on the wall’
The National Library receives requests for copies of out of print published artistic works such as posters and maps, for display in the requester’s home.  The requesters declare their purpose as research or study, but the Library has not accepted these declarations because the purpose appeared to lean more towards decoration than research or study. (It could be argued that a map, referred to with a frequency that warranted permanent display in the requester’s home, could be a research tool, but on balance the decorative purpose seems more likely). The requests also did not appear to be special cases.
The Library suggests that the Copyright Act facilitate the copying of published artistic works that are not available new in a reasonable time at an ordinary commercial price, through an addition to the Act’s  exceptions, and/or by categorizing such copies as examples of fair use, or through some other method.
Example 1.  A 1984 Navy map to display at home
The work: Australia-east coast Queensland, Frankland Islands to Lizard Island. Author : Australia. Royal Australian Navy. Hydrographic Service. [Sydney]: Hydrographic Service, R.A.N., 1984. 1 map : col. ; 67 X 113 cm.
The request: Request for copy of entire work. Requester note: “Framing and display in my house”. Requester declaration: I will use the copy only for the purpose of research or study, I will not use it for any other purpose and declare that it has not previously been supplied by an authorized …  Request received 10/11/2011. National Library request no.  CDC-10295611
Availability search: Amazon lists as out of print. Not included in Australian Hydrographic Service list of available charts.
Example 2. A 1971 edition of a bushwalking map for framed display at home
The work: The northern Budawang Range and the upper Clyde River Valley / compiled and drawn by G.L. Elliott. Author: Elliott, G. L. 5th ed. [Sydney:  Budawang Committee, 1971]. 1 map; 78 x 73 cm.
The request: Request for copy of entire work. Requester note: “framed display at home”. Requester declaration: I will use the copy only for the purpose of research or study, I will not use it for any other purpose and declare that it has not previously been supplied by an authorized …  Request received 20/09/2011. National Library request no.  CDC-10285083.
Availability search: Correspondence between the National Library’s Map section and a member of the now-disbanded Budawang Committee confirmed that the work is no longer available new. Others have reported searching for purchasable new copies of the later editions of this map without success[4].
Example 3. 1930s poster to hang in living room
The work:  Australia, Great Barrier Reef, Queensland] Creator : Sellheim, Gert, 1901-1970. Melbourne : Australian National Travel Association, [193-?] 1 poster : col..
The request: Request for copy of entire work. Requester note:"Personal use - to print one large copy for living room”. Requester declaration: I will use the copy only for the purpose of research or study. I will not use it for any other purpose … Request received 6/09/2011. National Library request no. CDC-10282202.
Availability search: No evidence of availability new from general Google search or Amazon search. Publisher Australian National Travel Association ceased 1970. Artnet database lists auction results for past sales of second hand copies. 
The National Library is aware of concerns raised by publishers that people who have received digital copies under exceptions in the Copyright Act may pass the copies on to others through file-sharing sites. To test whether copies supplied by the National Library may have been loaded to file-sharing sites, the Library conducted a small survey in November 2012. In the survey, 50 works for which the Library supplied digital copies in December 2011 were searched on three major file-sharing sites: Pirate Bay, 4Shared and Filestube. The supply date of December 2011 was chosen to allow time for the requester to have uploaded the files. None of the 50 works were found on any of these sites[5]. These file sharing sites employ fuzzy searching logic which would retrieve the works even if they had been loaded with variations to their titles.
The Library recognises that the survey was limited in size, but considers it provides some indication that the likelihood of uploading of copies supplied by the National Library under the Act’s exceptions to file-sharing sites is low. 

[1] National Library balanced scorecard report, June 2012. Table 14.
[2] National Library internal file R12/96709
[3] National Library internal file R12/96716
[4] http://www.hugin.com.au/budawangs/budawang_sketch_map.htm
[5] Survey summary in National Library of Australia internal file R12/102701; source spreadsheet R12/102700
Question 20: 
As the Issues Paper noted (page 43), reliance on 200AB appears to be limited in Australia. At the National Library, reluctance to rely on section 200AB stems from two main causes: the effort and knowledge required to rule out all other possible exceptions before using 200AB, and the vagueness of the term ‘special case’.
The National Library has considered using 200AB to support digitisation of in-copyright collection material and provision of access to electronic documents. These endeavours are discussed in more detail under questions 21 and 52, but it is appropriate here to mention briefly two examples that show why, in the Library’s view, the provisions of 200AB do not provide sufficient clarity to support these activities.
The first example concerns the digitisation of flood maps in response to demand during the Queensland floods of 2010. Motivated by urgent requests as floodwaters were rising, the Library made digital copies of these maps publicly available without the consent of the copyright owner. The flood emergency could be seen as a ‘special case’ but the Library’s action facilitated over 100,000 page views of the digitised maps; did the volume of use diminish the specialness of the case?  Did the Library’s placement of the maps online, in the knowledge that large numbers of people may well print or save copies, conflict with the normal exploitation of the work by the copyright owner?  In the Library’s view, any reasonable person would agree that this digitisation should have been permitted by the Copyright Act (the copyright owner, for instance, agreed, retrospectively) but none of the provisions of the current act permitted it with any clarity, including the supposedly broad provisions of 200AB.
The second example arises from the National Library’s wish to provide public access to the freely-available web pages that the Library has collected through its harvests of Australian content on the Internet. Since these web pages were publicly available and free of charge when harvested, there is a strong argument that the Library’s copies of them should also be publicly available, with appropriate information indicating their date. The volume of web pages involved, however, and the repetitive nature of the Library’s harvest of Australian Internet content, would bring into question the ‘specialness’ of the case. This example is discussed in more detail in the Library’s response to question 21.
The National Library has also experienced difficulty in applying 200AB in response to requests for copies of documents.  These difficulties are illustrated by the following examples.
Example 1.  Section 200AB relied upon incorrectly
In 2010, the National Library received a request for a copy of a family history published in 1981 in Adelaide. The publisher was a ‘reunion committee’ of the family. The requester declared their purpose as research or study and noted that ‘This book is out of print and I have lost my copy’[1]. The Library supplied the copy, citing 200AB as the justification for the supply, presumably because the requester  appeared to be a member of the family that the work documented, and because they declared that they were replacing a lost copy. These factors were interpreted by the Library staff member handling the request as making the request a ‘special case’.  However, an online search found no evidence that the book was available new in a reasonable time at an ordinary commercial price.  The Library’s own records contained no contact details for the publishing committee. The request should have been supplied under section 49 of the Copyright Act; the recording of 200AB as the relevant section of the Act illustrates the ease with which that section can be misinterpreted.
Example 2. 200AB relied upon correctly but after time-consuming consideration
In 2010 a user requested a copy of the entire: Recipe and instruction book : Sunbeam gourmet large 11 inch frypan. Sydney: Sunbeam Corporation, 1962. 40 p. The requester’s purpose was for ‘cooking, original lost in housefire’[2].  (Presumably the frying pan survived.) The Library supplied the copy, recording 200AB as the enabling section of the Act. There is no online evidence that the work is available new, either in general searches or in a search of the publisher’s web site, so section 49 might at first appear to permit this to be copied. However, it is uncertain whether the user’s purpose of cooking could fit within ‘research or study’ and thus the application of section 49 would have been questionable. The replacement purpose and the house fire made the request a special case, and the copying did not appear to prejudice unreasonably the copyright owner’s interests. This example does appear to be a case of 200AB being used appropriately, but after the time-consuming consideration of many factors. A clarified definition of ‘research or study’ that included self-taught domestic skills, or an extension of the exception to include personal or domestic use, would have made the decision simpler, and had the same outcome. 
Example 3. Copying request declined, even though 200AB was applicable
In 2012, the Library received a request for a copy of the entire work: You and me : a guide to sex and sexuality after traumatic brain injury by Grahame Simpson.  Liverpool, N.S.W. : Brain Injury Rehabilitation Unit, c2003. 40 p. The requester declared their purpose as research or study and added, ‘Helping our family support my 19 y/o son who has a traumatic brain injury’[3]. The relatively recent date of publication of the work, suggesting that it may have been available new, would have made supply under section 49 questionable. The request was a clear candidate for supply under 200AB because of the pressing human need behind the request, and the likelihood that the copying would have furthered, rather than prejudiced, the apparent interests of the author and publisher in rehabilitation of brain-injured patients. The Library staff member who processed the request, however, did not supply the request, and noted the reason as ‘request for whole work’ indicating that they had considered only section 49 in making their decision. Given the difficulties in interpreting 200AB, this was, in hindsight, an understandable though regrettable decision.
In the National Library’s view, the difficulties of using 200AB in support of digitisation activities, provision of access to harvested web pages, and provision of document supply services, could be overcome by replacing 200AB with a broadly-based and over-arching fair use exception, as outlined in more detail in the Library’s response to questions 52 and 53.

[1] National Library Copies Direct request CDC-10191399 received 4/05/2010
[2] National Library Copies Direct request CDC-10195504 received 22/05/2010
[3] National Library Copies Direct request CDP-10339356 received 24/06/2012
Question 21: 
Amendment to allow greater digitisation and communication of works by libraries is an area in which the National Library sees significant potential for productive change to the Copyright Act. In the Library’s view, copyright law should support and not hinder access by Australians to their cultural heritage.
The Library seeks amendments to support three of the Library’s major activities:
•	Routine digitisation of collection material
•	Availability for publication of unpublished material from colonial times
•	Accessibility of the Library’s harvests of Australian Internet content.
Each of these activities involves the digitisation and/or communication of orphan works; the Library’s proposals on orphan works are thus covered in the response to this question as well as questions 23 and 24.
Proposal to support routine digitisation of collection material
The National Library seeks a change to the Copyright Act that would support digitisation of collection material by libraries, with the following framework:
•	An assumption that material held in library collections may be digitised and displayed online, balanced by these safeguards:
o	An obligation on the library to adhere to any instructions on copying and access that the copyright owner has conveyed to the library
o	An obligation on the library to inform users of its digitised material that they may use it only for certain purposes, the purposes being ‘fair use’ if this concept becomes law, or the existing fair dealing exceptions; other uses requiring permission from the copyright owner
o	An obligation on the library to take down copies of in-copyright material promptly from online display when requested to do so by the copyright owner, and to communicate clearly its general willingness to take down copies in such cases
o	A date limit; the National Library suggests that this support for digitisation projects apply only to works that were created more than twenty years ago; this limit is intended to protect copyright owners against digitisation of works that are still available new in a reasonable time at an ordinary commercial price, without requiring a library to do availability searches for every item proposed to be digitised.
It should be noted that digitisation by libraries is also constrained by legislation beyond the Copyright Act, including legislation on privacy, official secrets and adult and other classifiable content, and that Australian libraries adhere to agreed protocols on digitisation of Indigenous material to meet concerns about secret or sensitive Indigenous content.
The National Library, though it has no particular objection to the safeguard in the present Copyright Act that requires advertisement of publication intentions in some cases in the Government Gazette (section 52), does not propose that such advertisements be part of the framework for support for digitisation. Such advertisements have not, to the knowledge of the Library’s current staff with responsibilities for digitisation, produced any response from copyright owners. The digitisation of a work involves creation of a bibliographic description which in the case of most libraries is searchable through major search engines, and of an image of the work itself. This is a far more effective way to attract the attention of potential copyright holders and allow them to contact the digitising library.
The Library does not propose that a ‘reasonable search’ to find copyright owners be one of the safeguards. This higher test should be reserved for uses of orphan works beyond research or study. In the Library’s view, the digitisation of an orphan work for inclusion in a library’s catalogue is more likely to benefit a copyright owner in alerting them to the existence of the work, than to prejudice their interests.
In support of the above proposal the Library offers the following information.
In November 2010, after a two-year digitisation project, the National Library made available online the entire run of the Australian Women’s Weekly from the first publication on 10 June 1933 to when it changed to a monthly on 15 December 1982[1]. The publisher, ACP Magazines, collaborated in the project[2] . ACP assessed the risk prior to giving permission to digitise the material and concluded that any risk was minor and could be managed by information that supply of copies was subject to copyright and that content was not available for commercial use or reproduction without the permission of the copyright holder.  478,290 articles were digitised. The project would not have gone ahead if the Library had attempted to clear copyright with every journalist, artist or photographer represented in the magazine from 1933 to 1982.  Members of the public have responded warmly to the project; from June 2011 to September 2012, for instance, there were 1,334,684 views of the digitised pages[3].  It is significant that this heavy use, and promotion of the digitisation project by the National Library and the Women’s Weekly, resulted in no take-down requests.  One cover image – 6 January 1940 – was taken down proactively[4] at the suggestion of the Women’s Weekly from their knowledge of previous correspondence with the copyright owner. The results of that takedown can be seen at http://trove.nla.gov.au/aww/read/204255#page/1/mode/1up .  Some copyright owners did respond to the project, all with praise. One, the son of an artist represented on many of the magazines covers, wrote that he was eagerly using the project to help him catalogue his father’s work[5].
In 2001 the Library digitised the correspondence of Sir Edmund Barton, Australia’s first prime minister. The 5000 digitised images[6] can be viewed at http://nla.gov.au/nla.ms-ms51 . This correspondence, as unpublished manuscript material, was still in copyright. On 3 April 2001 the Library advertised in the Government Gazette its intention to publish the correspondence on its website, and listed the names of 392 correspondents[7]. No responses to the advertisement were received, nor any negative comments from copyright owners during the 11 years since the images were made available online[8].
Similarly in 2003, the Library prepared for digitisation of the papers of Sir Alfred Deakin, Australia’s second prime minister, by contacting 55 correspondents for whom contact details could easily be found, and placing an advertisement in the Government Gazette that listed the remaining 554 correspondents[9].  This considerable effort elicited a number of positive responses and no negative responses from copyright owners[10].
As part of its program to digitise Australian sheet music, the National Library has digitised 5101  (as at 12 November 2012) sheet music works which were published since the 1930s and are thus likely to be in copyright[11].  A significant proportion of these (exact figures are not available) were digitised on a risk management basis without a search for potential copyright holders. To the knowledge of current and former National Library managers with responsibility for curatorship of music, there have been ‘less than a handful’ of take-down requests from copyright owners of this sheet music, including a major commercial publisher of sheet music, all of which have been resolved quickly and with no further concern from the copyright owner[12].
The National Library’s proposal to allow greater digitisation by libraries would meet the ‘general interest of Australians to access, use and interact with content in the advancement of education, research and culture’ outlined in the Issues Paper ‘s terms of reference. The cases listed above, which are typical and not exceptional in the National Library’s digitisation program, provide evidence that the digitisation undertaken by libraries does not lead to the possible concerns listed in the Issues Paper i.e. digitisation does not ‘result in a loss of control as to how works may be used’ and is not ‘detrimental to the owner’s economic interests’[13].
Proposal for expiry term for unpublished material
The National Library estimates that at least 2,041,720 items in its collections are unpublished[14].  The Copyright Act presently assigns perpetual copyright to unpublished works. Most Australians would probably be surprised to learn that, for instance, letters written in 1792 by the Parramatta tradesman James Lacey[15] were in copyright.
The Library seeks a change to the Act that would specifically support digitisation of unpublished material in libraries. This would allow creators to re-interpret this material after its copyright duration expires and would open up the National Library’s colonial collections for use by publishers.  In 2011, for example, the National Library was approached by an international specialist publisher wishing to publish a range of early Australian colonial manuscripts. The Library declined to participate in the project; the Library was not able to allocate a staff member to begin the tasks of analyzing the copyright clearance work that would need to be done[16].  Although sections 51 and 52 of the Copyright Act 1968 (Cth) support publication of unpublished material in certain circumstances, the workload of meeting the Act’s requirements can be a barrier to both digitisation by a library for public access or publication by a commercial publisher.  Even just the first step - the identification of likely copyright owners of correspondence from handwritten signatures which may consist of only a given name or an initial - is time-consuming. An expiry term for copyright in unpublished materials would remove this barrier to publication of manuscripts of the colonial era.
The copyright owners of unpublished material held in libraries are generally harder to trace than copyright owners of published works. A United States study estimated the costs of copyright clearance for a small nineteenth/early twentieth century political archive, comprising some six thousand documents, to be US$1050 per linear foot (0.3m)[17]. To minimize costs to libraries and to allow more accurate calculations of copyright duration for unpublished works, the National Library recommends that a term of duration for these works be based on date of creation rather than date of death of the creator.
Proposal to support the National Library’s harvests of Australian Internet content 
Background. Since 2005, the National Library of Australia has harvested a copy of Australian content on the Internet. Seven annual harvests have been made, gathering 5 billion files and 200 terabtyes of data[18].
Justification. The Library made the harvests as part of its role, set out in The National Library Act 1960, section 6, of developing a ‘comprehensive collection of library material relating to Australia and the Australian people’.
Only those web sites which are freely available to the public at no charge are targeted for harvesting. The Library posts information for web site owners on the Pandora website[19] and places a link to this notice in the web harvest robot’s request to targeted servers.  It is not a practical option to contact individually the owners of the web sites prior to harvesting the content; the only way to identify and alert website owners on the scale required is through the actual automated harvesting process.
The Library also harvests selected high-priority web sites by negotiation with individual publishers, making these publicly accessible through the Library’s Pandora archive. This approach is limited, however; it is time-consuming, collects only around 4% of Australian web content[20] and the selected web sites inevitably contain many broken links. The only way for the National Library to gather a comprehensive knowledge and understanding of Australian culture, society, opinion and creativity as expressed on the Internet, and to apply the obligations of the National Library Act of 1960 to the 21st century, is to harvest the entire Australian domain.
Responses from copyright owners. Responses from web pages owners have been minimal. Eleven responses were received after the first harvest; the number of responses has declined since then. Of the eleven initial responses, all were concerned, or curious, about the technical effect of the harvesting on their servers. Where the respondent asked the Library to stop harvesting their site, the Library complied. There were no responses that indicated concerns related to copyright[21].
Use of the data. Because the National Library has effectively copied this content without the copyright owner’s permission, the Library has not permitted members of the public to access to the data. The Library has responded to research requests to analyse the data. In 2008, for example, the National Library was approached by researcher Ben Bildstein of the University of New South Wales, seeking the Library’s co-operation in a data-mining project. His aim was to develop a methodology to quantify licence-based commons on the web. He used the Library’s 2006 and 2007 harvests of all Australian web content to do this. He published his results[22]  and later commented that the Library’s harvested data ‘was the perfect data set for this research project’. His paper refers to other information that is available from his analysis of the harvest, such as the proportion of .edu and .com web pages in Australia and their annual growth. This analysis contributes to the understanding of Australia’s digital economy. Most of the potential of the National Library’s web harvests remains untapped, however, because the Copyright Act does not permit re-publication of freely available content.
Proposal.  The National Library seeks changes to the Copyright Act which would support the Library’s harvesting of freely-available Australian web content and which would allow the Library to make this content publicly accessible.
Although the intention behind 200AB of the Copyright Act may have been to allow such activity, as not conflicting with copyright owner’s normal exploitation of works, the volume of the activity suggests that the ‘special case’ test may not be met. The long-term public benefit of providing access to a record of the growth and change of the Australian Internet domain may make the activity suitable for inclusion under any new broad fair use exception in the Copyright Act; alternatively, a specific exception for the Library’s activity may be more appropriate.
Possible objections. Copyright owners who place information on freely-available web pages may be concerned that access to previous versions of the pages may promulgate out-of-date information. The National Library has received one complaint (NLA/15216-52) of this nature concerning a web site archived in the Library’s publicly-available Pandora system. 
The National Library’s view is that the Copyright Act should not support denial or suppression of past facts. We recognize, however, our obligation to provide clear information on the date of any work, where that information is available.  The National Library’s Pandora system, for instance, responds to all searches with an intermediate page which informs the searcher that they are about to proceed to archived, dated, material. The National Library also prevents commercial search engines from accessing Pandora content, in order to maintain a clear distinction between Pandora’s archival content and live web content. The Pandora system is a model for the kind of access the Library would like to provide to Whole Domain Harvest web pages.

[1] Our gift to the nation - The Australian Women's Weekly goes online. Posted on: 22nd November 2010, http://www.nla.gov.au/node/1066
[2] Our gift to the nation - The Australian Women's Weekly goes online. Posted on: 22nd November 2010, http://www.nla.gov.au/node/1066 and National Library of Australia internal record R08/99049 and
[3] National Library of Australia internal record R12/97017
[4] National Library of Australia internal record R10/23000
[5] National Library of Australia internal record R12/38251
[6] Tony Boston and Andrew Stawowcyzk-Long; Edmund Barton Digitisation Project – the technical side in National Library of Australia Gateways no 54, December 2001, pages 18-19.
[7] National Library of Australia internal file: Manuscripts Section – Acquisitions – Sir Edmund Barton 203/02/00153-03 folio number not recorded, but close to front
[8] National Library of Australia internal file: Manuscripts Section – Acquisitions – Sir Edmund Barton 203/02/00153-03 folio number not recorded, but close to front and National Library of Australia internal file R12/96683
[9] National Library of Australia internal file: Manuscripts Section – Acquisitions – Mr Alfred Deakin (Vic) 203/04/00088-04 folios 23 to 12
[10] Gazetted list: National Library of Australia internal file Manuscripts Section – Acquisitions – Mr Alfred Deakin (Vic) 203/04/00088-04 folios 23 to 12; summary of responses: National Library of Australia internal files Manuscripts Section – Acquisitions – Mr Alfred Deakin (Vic) 203/04/00088-04 folio  117 and R12/96683; example of positive response Manuscripts Section – Acquisitions – Mr Alfred Deakin (Vic) 203/04/00088-04 folio 11
[11] National Library of Australia internal file R12/97060
[12] National Library of Australia internal file R12/97118; an example of a take-down request from an Australian music publisher, and the National Library’s response is at R11/108813
[13] Copyright and the Digital Economy Issues Paper, paragraph 133 on page 40.
[14] National Library internal file R12/89713
[15] James Lacey. Letters. 1792. 3 p. Summary: Letters written from Parramata, N.S.W to George McCarthy, London, refer to Lacey's situation as a tradesman and asks McCarthy to send information about his son. NLA MS 1326. National Library of Australia Manuscripts Collection.
[16] Folios within National Library of Australia internal file NLA11/2585; access restricted because commercial in confidence.
[17] Maggie Dickson: Due diligence, futile effort: copyright and the digitization of the Thomas E Watson papers in  American Archivist vol. 73 no. 2 Fall/Winter 2010.  pp 626- 636.
[18] National Library internal file R12/97127
[19] The 2012 notice to web masters can be seen at http://pandora.nla.gov.au/crawl.html
[20] Estimate by Dr Paul Koerbin, the National Library’s Manager of Web Archiving,  based on Pandora’s collection of 33.5 million files or 1.5 terabytes of data per year (2011-12 year) compared with the 2012 domain harvest of 1 billion files and 34 terabytes of data
[21] Paul Koerbin. Report on the Crawl and Harvest of the Whole Australian Web Domain Undertaken during June and July 2005 .10 October 2005 http://pandora.nla.gov.au/documents/domain_harvest_report_public.pdf
[22] Ben Bildstein. New Methodologies for Quantifying Licence Based Commons on the Web presented at First Interdisciplinary Research Workshop on Free Culture, iSummit '08, Sapporo Japan, 30 July – 1 August 2008. http://commonsresearch.wikidot.com/fc2008-paper14 viewed 24 October 2012.
Question 22: 
The National Library recognises the complexity of issues arising from the digitisation of Indigenous works, but considers that these issues should not be addressed as part of reform of copyright law. The Library follows the protocols outlined in the National Policy Framework for Aboriginal and Torres Strait Islander library services and collections[1]. The Library also endorses the position statement issued by National & State Libraries Australasia (NSLA)[2].The Library has restricted a number of digital copies of Indigenous works from public view.

[1] National Policy Framework for Aboriginal and Torres Strait Islander library services and collections[1] / National and State Libraries Australasia. [Melbourne] : National and State Libraries Australasia, [2006].
[2] http://www.nsla.org.au/sites/default/files/publications/NSLA.Indigenous_intellectual_property_ownership.pdf
Question 23: 
The National Library proposes that the Copyright Act permit the publication of orphan works with certain safeguards.
The Library has proposed in response to question 21 changes to the Copyright Act that would assist libraries in providing digitised copies online for research or study, and proposed an obligation to take-down a digitised orphan work at the request of a copyright owner as one of the applicable safeguards. Where there is an intention to use an orphan work for a purpose beyond research or study, the Library supports the view that the user should perform a reasonable search to find the copyright owner. A reasonable search, or standard industry practices to locate or identify the rights holder, and a prompt response to a take-down request from a copyright owner, should provide sufficient defence against liability for copyright infringement.
Publication of orphan works, with these safeguards, would fit within the broad ‘fair use’ provision proposed for the Copyright Act.
Extent and examples of orphan works
The National Library does not have exact figures to indicate the extent of orphan works in its collections. However some indication can be drawn from the following information:
•	A survey of 800 works held by the National Library, selected to cover a range of dates of creation and formats, found that 12.9% had a ‘Copyright undetermined’ status in the Library’s rights managements system[1].
•	The National Library estimates that at least 2,041,720 items in its collections are unpublished[2].  A significant proportion of unpublished works are orphans – for example, hand-written letters where the signatory’s name is a commonly used name and does not appear in published works or where the signatory has used only their given name.
•	In digitising correspondence in the papers of Sir Edmund Barton and Sir Alfred Deakin, the Library identified 946 orphan letters[3], [4], (and advertised the Library’s intention to digitise these in the Government Gazette, and received no responses[5],[6]). There are 10354 manuscript titles of collections[7] in the National Library’s catalogue, many of which are considerably more extensive than the Barton and Deakin papers.
The following examples further illustrate the range of orphan works held by the National Library.
Example 1: Paintings by Ida McComish, widely published, no response from copyright owner 
The works: 99 drawings, mainly contained in: Botanical specimens collected and painted by Ida McComish F.R.G.S. in Australia, 1936, 38, 41, 1952, 1955, 1956. McComish, Ida, 1885-1978. 1 album (77 paintings): watercolour. [Mainly painted on Norfok Island]
Search for copyright owner: The National Library acquisitions file provides no contact information for any heirs; it appears she had no children. A general Internet search provided no information[8]. A specialist researcher, preparing a publication on McComish, contacted the Norfolk Island Museum and the Historical Society in the Sydney area where she later lived[9] but was unsuccessful in finding any contacts.  
Use: An academic from Macquarie University published Australian sarsparilla, by Ida McComish in a journal on regional food studies in 2011, after signing a form indemnifying the National Library; the researcher has confirmed that they received no response from any copyright owner[10]. Ida McComish paintings were published in an article in National Library of Australia News in February 2003, on gift cards by the National Library in 2005[11], and four other publications. None of these publications elicited any response from a copyright owner[12].
Example 2: Anonymous drawing, widely published, no response from copyright owner
The work: Bunyip. 1935.  1 painting: watercolour, b&w . Title devised by cataloguer.  
Search for copyright owner: The work is anonymous. The vendor who sold the work to the Library was not able to provide any information on the creator. A search on Google images on ‘bunyip’ finds no other copies of this image, apart from ones derived from the National Library’s copy.
Use: Digitised and made publicly available by the National Library in 2002[13]. Used in 2007 in an exhibition about monsters, curated by an architect in the US[14]; in 2007 by Blake Publishing, Sydney, for a book ‘Mythical creatures’[15]; in 2008 by DK Publishing, US, for use in the book Fairypedia[16]; in 2009 in a book ‘The Tasmanian Bunyip’[17]; in 2010 for publication on a US sleepstudy web site (!)[18]; in 2012 by Weldon Owen Publishing, Sydney[19] and in the Wikipedia entry on Bunyips. The National Library has no record of any copyright claim resulting from this widespread use.
Example 3: Works of Walter Burley and Marion Mahony Griffin, copyright owners untraceable, copies supplied for publication
The works:  Papers of Walter Burley Griffin and Marion Mahony collected by Eric Nicholls, 1900-1947, 2.70 m. (14 boxes) + 1 fol. box; The Donald Leslie Johnson collection of Walter and Marion Griffin documents, 1901-1988, 3.45 m. (24 boxes + 1 folio box); Eric Milton Nicholls collection [ca. 1910-1966], ca.2500 drawings, lithographs, photographs, transparencies and postcards, 487 negatives b&w 35 mm., 264 negatives  glass b&w ; Eric Milton Nicholls special map collection, [ca. 1910-1966], 21 maps.
Search for copyright owner: 1999 to 2006: Emails attempting to trace descendants of Griffin siblings (the Griffins had no children). 1998, 2006 and 2008: Advice from two Griffin descendants that they do not claim copyright. 2006: Advice from Mary and Leigh Block Museum of Art, Illinois, that they know of no foundation or organized estate for either WBG or MMG who would hold copyright of their works. 2007: Advice from Art Institute of Chicago that they know of no copyright contact for the Griffins . The Griffins’ works have been reproduced without permission by American museums, for instance on The Magic of America: Electronic Edition website.
Use: There have been a number of requests for permission to publish copies of Griffin works held by the National Library in the lead-up to the Centenary of Canberra in 2013. The Library has received no communication from any copyright claimant in response to its own digitisation of Griffin works or its provision of copies for publication.
Example 4: 1991 map, not reproduced because copyright owner untraceable
The work: Magic Melbourne Australia  / Deborah Young & Melinda J. Clarke. Limited edition print. Melbourne : Oblique Creations, 1990. 1 map ; 68 x 99 cm. Notes : Panoramic cityscape of Melbourne. Also held:  another version 1991.
Search for copyright owner: 27 Oct 2010 - Maps Section contacts a Melinda Clarke, noting that the Library has received several requests for copies and asking if she is the copyright owner (she was not)[20].  29 October 2010 - Maps section replies to an inquiry about the map suggesting two contacts the inquirer may wish to purse for permission[21]. 13 December 2010. A Maps section staff member, by comparing portraits of people connected to the map with names in a captioned photo on file, phoned a person working for a small Melbourne company who said they knew and would try to contact the copyright owners; Maps Section sent a follow-up email; there has been no further response[22] . 4 Feb 2011 and 21 June 2012 and 22 August 2012, Maps Section responds to inquirers, saying the only address they have is several years old and unresponsive, and that searches of the White and Yellow pages directories have been unsuccessful[23]. 31 August 2012, an inquirer reports to Maps Section on his attempts to trace copyright owner: ‘I have abandoned hope of getting either viewing or copy-write permission for the Magic Melbourne map. Please cancel the order. Thank you for your efforts.’[24] Because of the difficulty in contacting the copyright owners, the Library has not digitised the map.
Case history of ‘unorphaning’ 
The works: Posters by James Northfield, such as Australia for sunshine & romance, [1]. Northfield, James, 1887-1973. Melbourne : Australian National Travel Association, [ ca. 1936]. 1 poster : col. ill. ; 49 x 63 cm.
The history: In 2002 the National Library displayed posters by James Northfield in an exhibition Follow the Sun and reproduced the posters in exhibition publicity. The Library, after finding that Northfield’s only child had predeceased him, had contacted a distant relative of Northfield to gain permission to publish the posters. Much closer relatives visited the exhibition and expressed strong concern that Northfield’s works had been published without permission[25]. Through information provided by these relatives, the Library established contact with the James Northfield Trust, which owned copyright in Northfield posters. This contact led to mutual benefit. The Library purchased the Trust’s holdings of Northfield works and has catalogued, digitised and preserved them. The collection was handed over at a ceremony attended by members of the Northfield Trust[26]. The Library published, with the Trust’s agreement[27], a book on the art of James Northfield. The Library refers all requests for copies of Northfield’s works to the Trust[28], and the Trust makes its own decisions on whether to charge a fee. The Library only provides copies of Northfield works when authorized to do so by the Trust. This is an example of a decision to reproduce what was effectively an orphan work, which brought together a copyright owner and content users to their mutual benefit.

[1] Survey results are in National Library internal files R12/97226 to R12/97230, with a summary at R12/97231
[2] National Library internal file R12/89713
[3] National Library of Australia internal file: Manuscripts Section – Acquisitions – Sir Edmund Barton 203/02/00153-03 folio number not recorded, but close to front
[4] National Library of Australia internal file: Manuscripts Section – Acquisitions – Mr Alfred Deakin (Vic) 203/04/00088-04 folios 23 to 12
[5] National Library of Australia internal file: Manuscripts Section – Acquisitions – Sir Edmund Barton 203/02/00153-03 folio number not recorded, but close to front and National Library of Australia internal file R12/96683
[6] National Library of Australia internal files Manuscripts Section – Acquisitions – Mr Alfred Deakin (Vic) 203/04/00088-04 folio  117 and R12/96683
[7] Search results from National Library of Australia online catalogue, 11 November 2012
[8] National Library of Australia internal file R06/37922
[9] National Library internal files NLA/15653-67 and R06/37922
[10] National Library of Australia internal file R12/94344
[11] National Library of Australia internal file R08/16988
[12] National Library of Australia internal file R12/94681
[13] National Library of Australia Digital Collections manager entry for nla.pic-an21971935
[14] National Library of Australia internal file R07/52509
[15] National Library of Australia internal file R08/42106
[16] National Library of Australia internal file R09/3153
[17] National Library of Australia internal file R09/89470
[18] National Library of Australia internal file R10/98769
[19] National Library of Australia internal file R12/33327
[20] National Library of Australia internal file R10/100912
[21] National Library of Australia internal file R10/112713
[22] National Library of Australia internal file R10/116567
[23] National Library of Australia internal files R11/13484 and R12/53291 and R12/77702
[24] National Library of Australia internal files R12/77707 and R12/77702
[25] National Library of Australia internal file NLA15/936-1
[26] National Library of Australia internal file R03/43856
[27] National Library of Australia internal file 181/32/00002
[28] For example: National Library of Australia internal files R08/77110, R05/57056, R11/43863, R08/18814
Question 24: 
The National Library does not support the introduction of a licensing regime for orphan works, because of the costs and impracticality of administering such a scheme by collecting institutions.
Any proposal to administer a licensing scheme for orphan works through a collecting agency would be based on an assumption of support for such a proposal from the currently unknown owners of copyright in the works. A survey by National Library staff raises questions about such an assumption. In 2008, as part of a data transfer project, the National Library created spreadsheets listing the most in-demand artists, photographers, cartoonists and other creators represented in the Library’s Pictures Collection. These creators had all conveyed their copyright requirements to the Library. The spreadsheets enabled the Library to survey the extent to which these creators use the collecting agency Viscopy. Of the 754 creators listed[1], 55 (7%) were found in the Viscopy ‘Search Viscopy members’ service. Of these 55, only 10 (1.3% of 754) had informed the National Library that they wished all copying inquiries to be referred to Viscopy; the remaining 45 had given the Library their own contact details to enable direct contact[2]. Although this survey is limited to the field of visual arts, the National Library interprets it as raising questions about any assumption, on behalf of an unknown population of copyright owners, that they would wish to be represented by a collecting agency.
Most orphan works are older works, and so there is a higher likelihood that copyright ownership may have passed to the creator’s estate. There are a number of models for management of copyright held by a creator’s estate, which do not involve a collective licensing scheme. The well-known photographer Wolfgang Sievers 1913-2007 used Viscopy’s services during his lifetime but bequeathed his copyright to the National Library. The heirs of artist James Northfield manage copyright through a Trust (see example in the Library’s response to Question 23).

[1] For this survey, copyright-owning corporate bodies, and creators in whose work copyright was known to have expired since the data was compiled in 2008, were excluded.
[2] Survey summary in National Library of Australia internal file R12/101495; source spreadsheets in internal files R12/101464 to R12/101494
Question 25: 
The National Library of Australia considers that its annual harvests of Australian internet content should be publicly available for data and text mining. Since this is part of the Library’s proposal for general public access to this content, it is covered under question 21.
Question 26: 
The National Library of Australia considers that its annual harvests of Australian internet content should be publicly available for data and text mining. Since this is part of the Library’s proposal for general public access to this content, it is covered under question 21.
Question 27: 
Question 28: 
Question 29: 
Question 30: 
Question 31: 
Question 32: 
Question 33: 
Question 34: 
The National Library has made a separate submission on legal deposit of electronic publications[1] to the Attorney-General's Department’s inquiry on extending legal deposit.  The National Library’s comments on changes to the Copyright Act needed to support access to electronic publications are covered in our response to question 21.

[1] Submission by the National Library of Australia to the consultation paper Extending legal deposit, 13 April 2012.   www.ag.gov.au/Consultationsreformsandreviews/Pages/Extending-Legal-Deposit.aspx
Question 35: 
Question 36: 
Question 37: 
Question 38: 
Question 39: 
Question 40: 
The National Library does not consider that any new statutory licensing schemes are necessary for Australia. The Library has proposed, in its responses to question 21 and 23-4, safeguards to protect the interests of copyright owners without the need to establish the complex infrastructure needed to support statutory licencing schemes.
The Library has commented in response to question 24 on the possibility of a licencing scheme for orphan works.
Question 41: 
The National Library does not consider that any new statutory licensing schemes are necessary for Australia. The Library has proposed, in its responses to question 21 and 23-4, safeguards to protect the interests of copyright owners without the need to establish the complex infrastructure needed to support statutory licencing schemes.
The Library has commented in response to question 24 on the possibility of a licencing scheme for orphan works.
Question 42: 
The National Library does not consider that any new statutory licensing schemes are necessary for Australia. The Library has proposed, in its responses to question 21 and 23-4, safeguards to protect the interests of copyright owners without the need to establish the complex infrastructure needed to support statutory licencing schemes.
The Library has commented in response to question 24 on the possibility of a licencing scheme for orphan works.
Question 43: 
Question 44: 
The National Library does not consider that any new statutory licensing schemes are necessary for Australia. The Library has proposed, in its responses to question 21 and 23-4, safeguards to protect the interests of copyright owners without the need to establish the complex infrastructure needed to support statutory licencing schemes.
The Library has commented in response to question 24 on the possibility of a licencing scheme for orphan works.
Question 45: 
The National Library supports the proposal that exceptions in the present Copyright Act be gathered together under the umbrella of a new ‘fair use’ exception, and that existing exceptions be listed as within this general exception, illustrating but not defining the extent, of the fair use exception. For further detail please see the National Library’s response to questions 52 and 53. The Library’s comments on exceptions for libraries and archives, and the 200AB exception, are set out in the Library’s responses to questions 19 and 20.
Question 46: 
The National Library supports the proposal that exceptions in the present Copyright Act be gathered together under the umbrella of a new ‘fair use’ exception, and that existing exceptions be listed as within this general exception, illustrating but not defining the extent, of the fair use exception. For further detail please see the National Library’s response to questions 52 and 53. The Library’s comments on exceptions for libraries and archives, and the 200AB exception, are set out in the Library’s responses to questions 19 and 20.
Question 47: 
Question 48: 
The National Library supports the proposal that exceptions in the present Copyright Act be gathered together under the umbrella of a new ‘fair use’ exception, and that existing exceptions be listed as within this general exception, illustrating but not defining the extent, of the fair use exception. For further detail please see the National Library’s response to questions 52 and 53. The Library’s comments on exceptions for libraries and archives, and the 200AB exception, are set out in the Library’s responses to questions 19 and 20.
Question 49: 
Question 50: 
The National Library supports the proposal that exceptions in the present Copyright Act be gathered together under the umbrella of a new ‘fair use’ exception, and that existing exceptions be listed as within this general exception, illustrating but not defining the extent, of the fair use exception. For further detail please see the National Library’s response to questions 52 and 53. The Library’s comments on exceptions for libraries and archives, and the 200AB exception, are set out in the Library’s responses to questions 19 and 20.
Question 51: 
The National Library supports the proposal that exceptions in the present Copyright Act be gathered together under the umbrella of a new ‘fair use’ exception, and that existing exceptions be listed as within this general exception, illustrating but not defining the extent, of the fair use exception. For further detail please see the National Library’s response to questions 52 and 53. The Library’s comments on exceptions for libraries and archives, and the 200AB exception, are set out in the Library’s responses to questions 19 and 20.
Question 52: 
The National Library supports the proposal that the Copyright Act create a general exception described as ‘fair use’ or some similarly flexible wording. To address concerns that such a provision might provide less certainty, the Library considers that existing exceptions should be listed as categories within this general exception.
As a suggested framework for exceptions that would be listed to illustrate fair use, the exceptions could be grouped along the following lines:
•	Copying for research or study or personal and domestic use, with the present safeguards (for instance limit the portion of the work copied) and with clarification as suggested by the Library under question 19 for copying of music and other works
•	Copying for public good -  including but not limited to, reporting the news, criticism and review, parody,  copying for disabled, copying for parliament, legal representation, replacement of missing/damaged copies,  preservation copying in a public or cultural institution (with changes to preservation copying as outlined in the Library’s response to question 19)
•	Copying for digitisation by libraries, with safeguards as outlined in the Library’s response to question 21
•	Copying of orphan works, with safeguards including  take-down obligations on the copier if the work  ever becomes unorphaned, as outlined in the Library’s response to questions 23 and 24
•	Copying for internal administrative purposes, including the creation of back-up copies of data.
If this approach is adopted, the Act should be clear that the listed categories do not define the extent of fair use; the Act should explicitly state that other circumstances that fit within the broad definition of fair use are permitted.
An argument against the creation of a broad fair-use exception is that section 200AB of the Copyright Act already provides a broad and flexible exception. The National Library’s response to question 20 provides a counter-argument. One relevant example, briefly mentioned by the Library under question 20, is the National Library’s copying of flood maps. Further detail of this example is provided below, to illustrate both the difficulty of applying 200AB and a case which would meet the proposed ‘public good’ test outlined above, but in which copying is not permitted by the present exceptions.  
Example
On the morning of Tuesday 11 January 2011, as floodwaters began to rise in the Brisbane area, the National Library’s IT Branch contacted the Curator of Maps, Martin Woods, telling him that there was a massive surge in searches. The searches were focused on two items listed in the Library’s catalogue:
Flood map of Brisbane & suburbs / drawn and published at the Survey Office, Department of Lands, Brisbane, Feb. 1974. Scale: 1:15,840. 1 map: col. ; 95 x 73 cm.
Brisbane River flood plain map of Brisbane suburbs and Goodna area: showing areas likely to be inundated by Brisbane River floods rising to various heights on the Moggill gauge and showing the probable frequency of such flooding [cartographic material].  Brisbane: Survey Office, 1975. Scale 1:10,000. 18 maps: col.; 94 x 98 cm. or smaller. 
After checking news reports on the flooding, Dr. Woods concluded that thousands of householders were seeking the 1974 flood maps to help them judge the likelihood of the 2011 floodwaters reaching their homes.  He decided to digitise the maps urgently and place them online. He attempted to contact the copyright owner, the Queensland Government’s Department of Environment and Resource Management, but found that the Department had been evacuated due to flooding. The Library proceeded with the urgent digitisation and the maps were placed online by late afternoon that day.
By midnight there had been 25,535 (65%) more online visits and 207,704 (48%) more page views of the National Library catalogue than an average January day. Analysis of search terms showed that these spikes were entirely concerned with flooding in Brisbane and Ipswich. The surge in use continued through to the following day, 12 January, with 11,199 additional online visits (and 85,104 additional page views). In total, people searched the National Library’s catalogue 35,850 times on the word ‘flood’[1].
The copyright owner, when contacted three weeks later by the Library, supported the Library’s decision. The legal basis for the Library’s action on 11 January, however, was uncertain. The flood emergency could be seen as a ‘special case’ under 200AB but the Library’s action facilitated over 100,000 page views of the digitised maps ; did the volume of use diminish the specialness of the case?  Did the Library’s placement of the maps online, in the knowledge that large numbers of people may well print or save copies, conflict with the normal exploitation of the work by the copyright owner? The overwhelming and urgent need for copies, and the broad public benefit of helping people manage their response to the flooding, determined the Library’s course of action. A broadly-based fair use exception to the Copyright Act, indicating that public benefit should be a contributing factor in assessing whether the fair use exception was applicable, would support such actions in the future.
The Queensland floods example was not an isolated case. In March 2012 floods hit the Shepparton district of Victoria. On the morning of the 2nd of March a Lieutenant from the Puckapunyal  Army Base, assisting the SES response to the floods, found through a Google search that the National Library Maps Section held a map of an area threatened by heavy flooding: Numurkah / prepared under the direction of the Director, Spatial Information Infrastructure, Department of Sustainability and Environment, Victoria. 2009. 1 map: col.; 59 x 93 cm, on sheet 71 x 97 cm.
The Lieutenant needed to see the map to help him establish safe evacuation routes. Within 2 hours, Dr. Woods had made digital copies of the map available to him (though not to the general public). He later emailed Dr. Woods, ‘It should be noted that the National Library of Australia receptions staff and administrative personnel could not be faltered [sic] when directing my call, and that the School of Armour could not be happier with your response’[2].The National Library later ascertained that paper copies of the map could be purchased through the Victorian Government Bookshop. Although the government bookshop and possibly other sources could have supplied paper copies of the map, the National Library considered that the urgency of the situation was the critical factor[3]. 

[1] The figures in this paragraph are from National Library ‘Vu Find’ statistics at: http://stats.nla.gov.au/_reports/vufind/monthly/1-2011/awstats.vufind.html
[2] National Library of Australia internal file R12/89783
[3] : Martin Woods, Curator of Maps, oral comment 18/10/2012; Canberra Times article http://www.canberratimes.com.au/act-news/library-shows-the-way-for-rapid-response-20120309-1uq87.html
Question 53: 
Please see the National Library's response to question 52.
Question 54: 
The National Library of Australia offers to its users, at October 2012, 166 purchased electronic databases which are compilations of text and other data in a range of subject areas[1]. Of these, 121 are ongoing subscriptions, such as Applied Science Full Text which contains scientific journals and conference proceedings, Factiva which contains international newspapers, company reports, and other business information, and Informit e-Library databases of Australian and Asia-Pacific journals. The remaining 45 databases are one-off purchases of static databases, largely of out-of-copyright content such as Eighteenth century journals c 1685-1815. For each of these databases the National Library has signed a licence agreement.
Of the licence agreements for the 121 subscription databases, only 26 (21%) permit supply of copies to Australian users through the Australian interlibrary loan network. 69 (57%) prohibit access by users outside the National Library’s premises. None of the agreements permit the National Library to supply copies in response to requests from individuals. The agreements thus prohibit the National Library from supplying copies that would otherwise be permitted by the Copyright Act sections which support fair dealing. In 2011/2012, the National Library was able to supply 240 requests for copies from licenced databases, but was obliged to decline 467 requests[2]. The restrictions of licence agreements have led to such anomalies as the National Library being obliged to decline a request by an author for a copy of their own article[3].
In the Library’s view the restrictions in these licence agreements conflict with the intention of balance that is enshrined in the Copyright Act 1968 (Cth). For example, one agreement claims the rights of Copyright:
“Copyright” includes (without limitation) the rights to which copyright owners are entitled under the Copyright Act 1968 (Cth) and by virtue of Australia’s membership to any multilateral or bilateral copyright treaties …
but adds restrictions not supported by the Copyright Act, such as
Authorised users may distribute insubstantial extracts from the Archive Materials provided that … no more than three extracts from the Archive Product may be Distributed in a single work, where a work includes but is not limited to, an article, a textbook, or an examination paper[4] .
The National Library considers that the Copyright Act should help level the playing field in relations between libraries and database suppliers.  Attempts to do this through normal commercial negotiations have encountered difficulties. In 2001, the National Library and Australian state libraries agreed to purchase electronic resources consortially, in an attempt to improve their negotiating position. The consortium, now named the NSLA eResources Consortium, is still active and is focused on negotiating price discounts and licence terms and conditions.  Attempts to negotiate document supply conditions that cover the full extent of the exceptions of the Copyright Act have met with only limited success. This experience has been mirrored overseas. The British Library negotiated an agreement with the International Association of Scientific, Technical & Medical Publishers with the intention of permitting the British Library to supply copies acquired under licence agreements to requesters outside the United Kingdom where the proposed use was  ‘non-commercial research or private study ‘[5]. The resulting International Non-Commercial Document Supply (INCD) Service was launched in January 2012. The conditions required by the publishers for using this service have proved such a barrier that requests through this service from January to August 2012 have totaled only 120, compared with 32,000 requests made in the equivalent period in 2011 to the service which INCD replaced[6]. In drafting the Agreement, the British Library and publishers presumably believed that a framework licence would provide an appropriate balance between the interests of creators, publishers and users.  However, in practice the licence appears to have dramatically reduced the dissemination of knowledge.
The National Library’s view is that agreements which purport to exclude or limit existing or any proposed new copyright exceptions should not be enforceable and that the Copyright Act 1968 (Cth) should be amended to prevent any restriction of fair dealing copyright exceptions and exceptions for copying by libraries and archives. The National Library supports the International Federation of Library Associations’ statement that ‘the goals and policies providing for [copyright] exceptions are important statements of national and international principle and should not be varied by contract.’[7]

[1] National Library internal file R12/96566
[2] National Library internal file R12/96630
[3] The request: An article on real estate in the journal Best's review (NLA bib id 6133709), compiled in the electronic database Business Source Premier.  Requester’s note: "I am the author of the article and wish a copy. I will use the copy only for the purpose of research or study, I will not use it for any other purpose and declare that it has not previously been supplied by an authorised officer of the Library.” Request received 12/10/2011. Request number  CDC-10289301. National Library response: ‘Due to licensing restrictions we are unable to provide you with a copy of this article…’
[4] National Library internal file R12/45761.
[5] www.bl.uk/reshelp/atyourdesk/docsupply/industryspecificinfo/publisher/INCD/incdfaqs.pdf
[6] National Library of Australia internal file R12/103089
[7] www.nsla.org.au/sites/default/files/publications/NSLA.copyright_exceptions_limitations.pdf
Question 55: 
Please see the National Library's response to question 54.
Other comments: 
The National Library welcomes the ALRC inquiry into Copyright and the Digital Economy and is grateful for the opportunity to make this submission.
File 1: 
File 2: