90. H Rundle
Full name: Hugh Rundle

Question 1: 
 Australian copyright law affects participation in the digital economy in two major ways. The first is in relation to digitisation of analogue works. The different parts of the Act that deal with format-shifting are confusing, particularly as many works in a modern, digital world contain multiple works 'mashed up' or embedded within a broader work. Rules concerning when and under what circumstances an analogue work can be copied or digitised are similarly confusing and leave citizens and institutions fearful of the consequences of accidental copyright violation – for example with regard to orphan works. All of this means that far fewer works are being brought in to the digital economy and digital society than should be the case.
The second major issue is the legal protection of technological protection measures (TPMs) – also know as Digital Rights Management (DRM). It is noted that the committee has been asked not to duplicate work being undertaken in relation to exceptions to TPMs (paragraph 19), however the effect of TPMs can not be ignored when considering rights under copyright exceptions - a legal right to read or use the material without a legal right to actually access it by overcoming TPMs is worthless and disingenuous. Any attempt to deal with Copyright Law exceptions without considering the legal right to overcome artificial technical constraints upon enjoying those exceptions is clearly flawed.
Question 2: 
The ALRC should start with the principle of genuine balance. This means, for example, that the ALRC should consider provisions to punish excessive or unwarranted digital ‘take downs’ (purportedly under the US Digital Millenium Copyright Act) and interference in people’s rights under limitations (ie. copyright violation should be punished, but so should violation of peoples rights under copyright exceptions). Rights-holders who deliberately stymie others' rights under copyright exceptions or fair dealing provisions should be subject to sanctions.
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The new digital reality means that much of the creative work we access is now in digital format. This means that the only way to share it between people and the devices they use to access it is to make copies. Whilst in 1968 the easiest way to share a book or song with a spouse or family member was to physically hand the book or vinyl record to them, in 2012 the book may well be an ebook and the song an MP3 file. The spouse may prefer read the book on their own eReader, tablet or smart phone, and listen to the song on the same device, or perhaps on a separate personal MP3 player. In any of these cases, the rights of the rights-holders are not violated any more than when the book or song was shared by physically sharing the paper book or disc. The Copyright Act should recognise this domestic reality and allow the making of copies not just by the original purchaser for their own use, but also by other members of their household for private use.

Question 8: 
Exception provisions for format shifting should be merged into one clear exception, with no distinction made between shifting from analogue to digital formats or from one digital format to another digital format. There is no logical reason for format shifting provisions to differ according to the particular format a work is currently stored in, or to which it is being shifted.

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Yes, copying for the purpose of back-up or data recovery does not infringe upon any reasonable commercial interests of rights-holders and increasingly is simply a part of digital life. The Act should ensure that the law keeps up with this reality, and include backups held on remote servers and made automatically on behalf of the user, so long as access to the backup is only available to the user or others in line with any changes made under question 7.
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Section 200AB is confusing for libraries and librarians. Nobody really seems to know what it covers, including copyright lawyers, and no library wants to be the first legal test case. 200AB is not necessarily flawed, but its usefulness is limited due to the uncertainty surrounding what is covered by it.

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As per Quesions 23 and 24, the Act should be amended to give certainty to public and cultural institutions with regard to orphan works, through a broad Exception. A blanket right by legal deposit libraries to demand electronic copies in addition to physical copies of works should also be considered.

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The current legal position of orphan works keeps thousands of works in Australia effectively locked away and unable to be used, accessed or disseminated using modern, efficient communications technology. Digitisation of library collections is fraught and risky for institutions where the benefits to the community of easy access to material must be weighed against the possibility of potentially catastrophic legal action from previously unknown rights-holders. The fear of unintentionally breaching copyright keeps libraries from freeing up vast amounts of informational and cultural works into the Australian community. Unless libraries and other institutions can be confident that any unintended breaches will be treated reasonably and proportionately, orphan works will remain unobtainable to most Australians.
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The problem of orphan works needs to be addressed if Australian libraries are to take advantage of online and digital capabilities. A clear and simple definition of what constitutes an orphan work is needed. A collective or statutory licensing scheme is not appropriate for orphan works – by definition it is likely that the rights-holder can not be identified. A more efficient and fair system would be an exception allowing libraries to digitise and format-shift works they believe to be orphaned. This would free up significant numbers of cultural and informational works for all Australians to enjoy and benefit from – works which are currently locked up because of the fear of litigation by unknown and probably non-existent rights-holders.

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Question 54: 
Legal agreements which exclude or limit copyright exceptions should be unenforceable, for the reasons given in my response to Question 55 – if rights-holders can contract out of exceptions then in a digital economy, where one must click 'I agree' before accessing works, such exceptions will no longer be applicable at all.

Question 55: 
Yes, all of them.
The ability to 'contract out of' copyright exceptions currently renders the whole Exceptions framework pointless in the digital context. Increasingly, creative works are 'born digital' and distributed online. Access to written works, visual art, film and audio increasingly, and in some cases predominantly, takes place via online digital means.
In this context copyright holders are now in a position whereby they can exclusively control legal access to the distribution of copies of works. This new monopoly on not just the rights to reproduce works, but also the distribution of copies, enables rights-holders to force contracts upon any and all potential purchasers or users of their work – often before the potential users even see what they are paying for. With the ability to 'contract out' all exceptions, rights-holders can and do now over-ride the rights of users enshrined in the Copyright Act 1968. Potential users of works have no leverage under this system to negotiate or opt out of such contracts, as agreeing to them is a precondition of accessing the monopoly distributor's works.
If the abiltiy to 'contact out' exceptions is maintained within the Copyright Act 1968, the Committee may as well remove all exceptions, as they will, in a short time, become a legislative anachronism. As the digital creation, conversion and distribution of creative works continues to become the norm, so too will the one-sided contracts that currently exist in the software, ebook and digital music industries. Exceptions are worthless if it is so easy for rights-holders to simply insist on a contract that over-rides them.
In short, the ability to contract out of exceptions should be removed completely from the Act.
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