67. Dr Ian F Turnbull
6 November 2012

Submission to the ALRC Issues Paper (IP42) on "Copyright and the Digital Economy" (August 2012)

The Effect of the Digital Era on the Research and Study and Other Fair Use Exceptions to Copyright Infringement

1. This submission is made on behalf of individual, independent researchers, authors, academics, practitioners and others who would have, prior to the digital age, accessed information from hardcopy books, journals and other publications held in library collections ("independent researchers").

2. "Independent researchers" means individuals not affiliated with corporations such as institutions, companies or other organizations of significant size and resources. It includes sole traders such as lawyers, doctors, designers, architects, inventors, scholars, creators and those engaged in the creative arts, whether or not for profit, but which do not have the resources of significant corporations. Most likely these types of individuals are the majority of library users and contribute to a greater extent than large corporations to society through their own copyright works and creations.

3. Copyright acts have traditionally helped these types of artisans and professionals in free access to information necessary to their endeavours through the personal and domestic use and fair use exemptions from copyright infringement.

4. That was and is deliberately done in the legislation to promote innovation by these types of individuals for the benefit of society.

5. In a similar way to the way the patents regime nowadays effectively prices small inventors out of the protective regime in favour of large research organizations and corporations such as pharmaceutical and chemical companies, there is occurring a similar limitation on innovation as a direct result of the misuse of copyright protections for digital and on-line works.

6. That limitation impedes creative expression and knowledge advancement by effectively restricting access to information for the types of individuals referred to. That is to be compared to the free access to the same information available to those persons affiliated to medium to large corporations simply because they can afford to subscribe to relevant publications on-line or purchase libraries of e-books. 

The Rise and Fall of the "Virtual Digital Library"

7. Early in the rise of the online and digital "information revolution", through online and digital access, the "virtual library" was free of charge with frequently unrestricted access to publications such as peer-reviewed journal articles, reports and articles (to be distinguished from blogs and self -published opinions and commentaries most frequently pulled up by searches nowadays) suitable for serious, solid academic research. On one occasion I accessed the full text of an old, rare English law report through an obscure English or Canadian college library. 

8. That is no longer the case. Nowadays these crucial research tools are only available over the internet, from publishing houses rather than the authors, creators or journals, at a cost after subscription and registration. 

9. Copyright is the legal doctrine and driving force behind this situation as it provides the basis for commercial gain by these publishers, authors, creators and assignees.

10. Frequently, most seriously, independent researchers do not have the resources to subscribe to or buy the large numbers of publications needed to be reviewed in preparing their works; works which will ultimately benefit society. In most cases abstracts and summaries provided are not even sufficient to determine whether or not the full publication needs to be read; let alone copied. 

11. Previously, at least in Australia, journals, books, reports and published series or loose leaf subscriptions were kept and updated in hardcopy on shelves in libraries, notably university libraries. Most such libraries in public institutions had an unstated and unofficial open access policy allowing access to members of the public to their shelves. Independent researchers could at least find and read relevant article on-site at no charge; the very meaning of access to information.

12. Now most libraries subscribe to on-line publications and hardcopies are frequently no longer obtained. That includes journals and e-books. Even magazines such as Newsweek and newspapers are provided predominantly on-line for a subscription; and that is the way of the future. That has resulted in access being restricted to fee paying students and staff with access identifications through often limited institutional computer terminals.

13. Public libraries do often provide access to a range of on-line publication but these are often limited to those in popular rather than academic demand; with limited, peak time terminal access. 

14. My point is that for independent researchers, a significant if not the predominant group of users of copyright materials for the benefit of society, the digital information era, from which they alone should have been the major beneficiaries, have in fact put them in a worse position so far as access to publications is concerned, than the situation prior to the advent of on-line publications and the internet.

On-line Publishers Commercialize Copyright but Avoid Fair Dealing, Fair Use and Free Use Provisions 

15. The relevance of this to copyright law is the effect on the fair dealing, fair use and free use exceptions to infringement; particularly those for research, comment, giving advice and study. It also impacts on implied licences and copying for personal and domestic use.

16. Effectively, by restricting access to on-line copyright works to only those who subscribe or purchase them on-line means that the vast majority of independent researchers are excluded from the benefits of the fair dealing provisions of the Act in circumstances where, previously, they could have access and used the information through a library.

17. Clearly such a situation is contrary to the express purpose of those exceptions; and is regressive rather than achieving the much lauded perceived benefits of the so called "information revolution".

18. One possible answer to this might be for publishers to be required to make any publications they provide on-line freely accessible in a read only format (or similarly protective format) which cannot be cache, saved indefinitely or printed, until some payment, registration or agreement is made. For example, "research tools" are normally provided free to other scientists, in the interests of advancing science, when a simple non-commercial use is agreed. A simple agreement specifically acknowledging the fair dealing exceptions might suffice.

19. The technology for such an approach would appear to be available and it would be consistent with the purpose of the fair dealing exceptions.

20. To make it clear, I am advocating for a requirement that a claim for copyright protection for on-line works must carry with it a legislative requirement that access to the work in a manner no less restrictive than if it were a hardcopy in a public library is provided and guaranteed by the publisher, author, creator or assignee.

21. That is, the Copyright Act 1968 (Cth) should provide that unless copyright owners and assignees who make available via the internet works in digital form also provide, free of charge, a version that at least allows read-only access to the entire work (including possibly text searching access), whether or not cached, for a reasonable time, they will not have complied with the fair dealing provisions of the Act and consequently breach the Act.

22. Some restrictions on the ability to save and print may be fair and necessary; possibly requiring an agreement to make only one copy, provision of an e-mail address or limited registration (for example tick a box). Also limits on the numbers and volumes of publications accessed per unit time seem reasonable; limited by the time it takes a person normally to read a page or chapter, for example.

23. Failure to do so gives the copyright owner or assignee a greater benefit than is envisage by the current and previous versions of the Act by effectively restricting or excluding the fair use provisions and other provisions.

Government Works Provided On-line Should Have Limited Copyright Protection

24. There is another, related area of concern. Whereas previously, Government publications were available in hardcopy (often at a cost; wrongly in my view) they are now available almost exclusively on-line for download. Some specialist sites such as Austlii and Government websites allow free, unrestricted access to legislation and cases and some other materials; as it should be.

25. In my view the Copyright Act 1968 (Cth) should be amended to ensure free and uninhibited access to the public to all Government publications and public materials. That includes full printing, editing, transformation, translation, text-to-speech and other uses being available. In other words, all copyright rights (except moral rights) to Government publications and public materials should be required to be waived under the Act.

26. The bases are that: First, the general public are arguably effectively the owners of the works having commissioned them through their representative and public servants; Secondly, the authors and creators of the works are appropriately remunerated from public monies; And thirdly, the authors and creators have already been adequately remunerated to a reasonable extent for the work done and these types of works are unlikely to generate any royalties or similar benefit so no expectation of additional receipts is reasonable.

27. Clearly authors and creators are entitled to recognition for their efforts and protection of their moral rights in relation to the works they produce.

Responses to Specific Questions in the Issues Paper (IP42)

Question 1(a).
The ability of independent researchers to research, create and innovate, thereby restricting those who make a living from their endeavours to do so, is becoming more and more limited because of the increasing digitization and on-line only access to copyright publications and other works; being an effective limitation on access to "digital goods and services" as the direct result of cost. That is a regression from the free access and availability previously existing in public accessible libraries holding exclusively hardcopies of publications. It negates some of the much heralded digital "information revolution".

Question 1(c).
Having to subscribe to or purchase publications on-line before substantial access, where the on-line version is the only realistic availability, "imposes unnecessary costs or inefficiencies on creators or those wanting to access or make use of copyright material".

Question 7.
Possible responses to the issues raised in this submission might include expanding the meaning of "private and domestic use" to include use by independent researchers, whether or not the works they produce do ultimately provide income; that is to incorporate the concept of "research tools" as including free permission to copy legally acquired copyright material, including broadcast material, for independent research.

Question 42.
Removal of copyright protection, other than moral rights, from the authors or creators of Government publications and works, would assist independent researchers and is a preferred option. Alternatively, the Copyright Act 1968 (Cth) should be amended to provide for a new statutory licensing scheme to allow free and uninhibited use of all Government publications and public documents and works.

Question 45. 
Use of the internet to sell e-books and obtain on-line subscriptions to publications and similar commercialization of works has allowed publishers, authors, creators and assignees to gain a potential commercial advantage from independent researchers by effectively avoiding the fair dealings provisions because they restrict access only to subscribers or purchasers. That is different from access to public libraries holding hardcopy publications. Of particular concern are the research and study, criticism and review and legal advice dealings.

Question 47, 50. 
A procedure and facility to allow an exception that provides for access for on-line reading (and a one-off copying), equivalent to access to hard copies in a public library, specific to independent researchers, should be made mandatory as a precondition to providing copyright protection for publications on the internet or in digital form. In other words an infringement proceeding is barred unless that has been established. The Copyright Act 1968 (Cth) should be amended to provide for it.

Questions 52, 53.
A general exception or fair use or free use exception along the line suggested above should be incorporated into the Copyright Act 1968 (Cth).  

Ian F Turnbull
5 November 2012