Council of Australian University Librarians (CAUL)

Outstanding Issues from CCG Report

Updated 30 July, 1997

16 July 1998
Mr P Treyde
Director
CLRC Secretariat
Attorney-General's Department
Robert Garran Offices
BARTON ACT 2600

Dear Peter,

Outstanding Issues from CCG Report

The Council of Australian University Librarians (CAUL) welcomes the opportunity to comment on the outstanding issues from the CCG Report as outlined in your letter of 13 June 1998. The comments below are offered from the perspective of university libraries as users of copyright material.

Definition of 'Cinematograph Film'

The definition of 'cinematograph film' reflects the time in which the section of the current Copyright Act was drafted and as such does not reflect developments in technology. Within the CLRC's brief to simplify the Copyright Act, CAUL does not object to the replacement of the definition with a new broad category of 'audio-visual work' to expressly cover multi-media works, provided that conditions on access are not restricted.

Definition of 'Reproduction'

The definition of 'reproduction' as it relates to the electronic environment has been extensively discussed both at WIPO in 1996 and in relation to the proposed 'Digital Agenda' reforms. The differences between the terms 'reproduction' and 'copy' have often become blurred in the discussions. However the final version of the Copyright Treaty which resulted from the WIPO conference rejected the draft article which deemed all digital or electronic copies, no matter how temporary or insignificant, to be reproductions for copyright purposes.

If the new 'Digital Agenda' reforms are to follow the WIPO treaty then the temporary or incidental copies made during the course of a transmission would be excluded from the right of reproduction. The evidence to hand would therefore indicate that there is no need to provide a definition of a 'reproduction' additional to what is already in the current Act.

It is CAUL's opinion that there is no need for a definition of reproduction in the Copyright Act. In line with the WIPO Treaty CAUL would also be opposed to any definition of reproduction which specifically included temporary, incidental or ephemeral copies.

The scope of the definition of 'copy'.

As indicated above the use of the terms 'reproduction' and 'copy' has often been blurred in discussions and it is therefore reasonable to consider them together. However the definition of 'copy' for libraries impacts directly on their operation in the context of sections 49 and 50 of the Act.

Within the scope of the definition of 'copy' as provided in s.10 which relates to 'cinematograph films' it specifically states 'any article or thing'. Based on the agreement that temporary digital copies are not considered to be a reproduction the same arguments would hold for copies. That is if stored in 'a non-permanent medium such as electronic memory' it is not considered to be a 'copy'.

Jurisdiction of the copyright Tribunal

CAUL considers it to be vital that there is an independent forum for the resolution of disputes which relate to collective licensing. It is also considered essential that the Copyright Tribunal is mindful of the necessity for efficient and timely resolution of issues. The current case before the Copyright Tribunal involving the AV-CC and CAL on the issue of electronic reserve collections is a prime example of how the efficient use of technology can be hampered for years and copyright owners disadvantaged through tardy resolution of issues.

While CAUL supports the proposal that the Copyright Tribunal should have jurisdiction over all collectively administered licensing schemes, issues of processes and timing need to be addressed.

Public Performance by means of a receiving device

It is anticipated that the new right of communication proposed in the Digital Agenda reforms will define what constitutes a public performance with new forms of electronic delivery. Within this context CAUL strongly supports the recommendation by the CLRC in its report on 'Computer Software Protection' that a screen display does not, by itself, constitute a public performance.

The exceptions outlined in SS199 (1)(2)(3) provide a means for reasonable access to copyright material within certain boundaries so that copyright owners are not disadvantaged. In any consideration for broadening the definition of 'broadcast' it is essential that the balance provided by the current exceptions is retained.

Untraceable owners of copyright

CAUL supports the proposal for a mechanism to be established so that when a copyright owner is unknown or cannot be traced it is possible for a work to be used. While in some cases it is possible to use these works through statutory licence provisions or exceptions to infringement in cases such as unpublished works the barriers to use can sometimes not be resolved.

The provision of a mechanism which makes it possible to use these works is critical for institutions with major research functions. Equitable remuneration is considered to be an integral part of any such mechanism when the copyright owner is identified and makes a claim.

Point-to-point transmission

The location of universities within Australia and the technology available means that institutions often have access to transmissions which originate outside Australia. Copyright provisions regarding these transmissions are currently dealt with on an individual basis by the institution. The development of guidelines including a definition of where the copyright for these transmissions resides would be valuable to these institutions.

Publication in computer or machine readable format

As a consequence of the improved access and increased availability of publications in electronic format there is a trend towards publishing only in this format, particularly in disciplines where rapid change is an integral part of the subject. As 'published edition copyright' relates to a specific format (published) it may not be appropriate to simply extend the copyright into the electronic format. However it is necessary for material which exists only in this format to be covered by copyright principles.

In the case of material which is published in computer or machine-readable format as well as in a published edition, copyright should be extended to include the electronic format where possible.

This particular area is of major interest to university libraries due to the increased availability of material in electronic form. The situation regarding the publication of serials in multiple formats with a variety of copyright or licence conditions increases the complexity of issues regarding access and in certain circumstances, such as licence agreements for electronic versions, increases the restrictions on use.

The above comments are provided on behalf of CAUL. If further information is required please contact me on phone 07 55951408, fax 07 55951480 or via email evew@bond.edu.au

Yours sincerely,

Evelyn Woodberry
DIRECTOR, INFORMATION RESOURCES
Bond University

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