Council of Australian University Librarians (CAUL)


A discussion paper prepared for CAUL/JISC by
Annabelle Herd, Australian Council of Libraries and Information Services

Updated 21 July 1997 (This paper is a draft and is subject to revision based on comments received)


An ideal intellectual property law framework that libraries would wish to be operating in in the next two to three years is founded on balance and the acknowledgment that copyright exists to serve the public interest. With all the challenges of new technology and the fundamental changes to the way that information flows, the idea that ultimately copyright owners must receive reasonable returns for the creation and distribution of original works, and that copyright users must have fair access to those works is the crucial basis for law reform. The utilisation of digital and other modern information technologies to their fullest potential in the dissemination of information and ideas would in the ideal environment be facilitated by an evolving and flexible copyright law. What would be excluded from this vision at all costs would be the existence of monopolies on information through the absolute control of rights to digitise, transmit and store copyright material.


The limited exceptions in current copyright law provide the only means of access to intellectual knowledge for many individuals in society. As is commonly thrown around, knowledge is power and a knowledge based democracy must be founded on a free flow of information. Current exceptions and limitations are under constant threat from interests wishing to restrict access to works in order to increase control of material and increase monetary gain. Limitations and exceptions must be maintained and strengthened such that they can be applied to new situations without the threat to extinguish them each time a different set of circumstances arises. Confronting the claim that digital is different will be an integral step in maintaining current limitations and exceptions to a copyright owner s exclusive bundle of rights. Current limitations and exceptions must be carried over into the digital domain, and where necessary, extended to provide appropriate access to digital materials. The right to browse and copy short extracts or quotes from digital materials is a right that must be achieved if any kind of effective access to information is to be maintained. A market in words and sentences must not be allowed to develop.

Within the digital domain, electronic rights management systems capable of utilizing powerful encryption technology are being touted as the answer to the problem of lack of control over the dissemination and manipulation of digital works. Whilst there is a clear value to such technologies, there are inherent privacy and access concerns to be addressed. Fair use and other exceptions to copyright owners rights must be maintained, information must not be locked up against any genuine and legally permitted use of the material. Further to this, The problem of licenses and contracts which restrict or exclude important user rights must not be allowed to broadly affect the way that information is disseminated and strategies to confront these license or contract terms must be developed.

International intellectual property law has taken the first step in confronting the issue of copyright in the digital arena. The World Intellectual Property Organisation Diplomatic Conference held in Geneva in 1996 adopted two new treaties; a copyright treaty, and a performances and phonograms treaty. Significantly, Article 10 of the Copyright Treaty , concerning limitations and exceptions, is accompanied by an Agreed Statement stating that contracting parties may carry forward and appropriately extend into the digital environment limitations and exceptions in their national laws. In the same Agreed Statement, Article 10 is declared to permit parties to devise new exceptions and limitations that are appropriate in the digital network environment. The new broad right of communication/making available to the public coming from the WIPO Copyright Treaty will also have to be appropriately addressed. The whole issue of a transmission right is related to this, and will also have to be confronted in order for libraries to achieve a outcome favourable to the interests of balance.


Libraries must maintain and strengthen their collective voice on copyright and intellectual property reform issues, both on a national, and a supra-national level. This is an essential step to effectively addressing the issues raised above. This collective voice may even be wise to extend to cross-sectoral, and international alliances of copyright user interests based on the collective concern of balanced copyright and intellectual property law. Whilst recent developments in international copyright law can be seen as generally favourable for libraries in many ways, clearly there are issues that must be addressed. The communication right agreed to in the new WIPO copyright treaty may affect a library s ability to provide facilities for browsing digital works, and although there are agreed statements on exceptions and limitations, the implementation of these treaties at a domestic level must be followed, and a maximalist interpretation of the treaties prevented. In general, copyright user rights must not be diminished in any process of international harmonisation. It is essential that libraries be pro-active in effecting balanced information law and policy, and to that end all issues of concern to libraries must be addressed. In this context, maximal communication between libraries and like interests, and co-operative efforts are invaluable in strengthening the overall library position in the information future.

Annabelle Herd
Copyright Research Officer
Australian Council of Libraries and Information Services
Wed, 12 Mar 97

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