CAUL (Council of Australian University Librarians)
 
 

Copyright Amendment (Digital Agenda) Bill 1999

CAUL Response

Updated 26 March, 1999
 The Council of Australian University Librarians (CAUL) welcomes the opportunity to comment on the Copyright Amendment (Digital Agenda) Bill 1999, which was released on 26th February 1999. CAUL is strongly supportive of the commitment, stated both in the Object of the Act and in the accompanying commentary, which is to replicate the balance between the rights of owners and the rights of users that has applied in the print environment.

CAUL supports the efforts of the Government to

While the Bill will be a major step towards aligning Australia’s copyright laws with the obligations prescribed by the new WIPO treaties there are a number of issues which will cause problems for the library community if they remain in the current form. The issues of particular interest to CAUL are those relating to libraries and archives, educational institutions and the delivery and access of information in electronic form. The comments below are provided in response to these interests.

Communication of electronic works

The majority of university libraries are increasing the purchase of information in electronic form. One of the major benefits of information in this form is the provision of access to distant or external students, many of whom may be hundreds of kilometers away, on the same basis as students studying on campus. This equity of access is a critical issue for libraries and students. The ability to deliver the information to the desktop computer of users regardless of their location is also an advantage for staff who no longer need to queue to use resources in the library.

Two sections of the Bill

  1. After subsection 49(5)
59 Subsection 51A(2)

specify that the electronic version can be made available online to be accessed through the use of a computer terminal installed within the premises of the library or archives.

This proposed limitation on access

Limitations on use

Following from the above comments, the same sections of the Bill also specify that the access to the information should only be through a terminal that is not capable of being used to obtain a copy of the article or work, whether an electronic copy or a hard copy.

The main reasons for CAUL’s objections to this section are that

Contractual Agreements

The two issues raised above serve to highlight the increasing use of contracts and agreements which are part of the purchase of access or products in the digital environment. The contract or agreement can be negotiated to effectively define the scope of the site, the user population and a variety of other criteria which apply to the use of the product. However, the Bill in its current form does not contain any proposal that will ensure the uses permitted under the exceptions contained in the Copyright Act, for example fair dealing. Consequently, exceptions and limitations, which are designed to ensure reasonable access and balance, may be made ineffective in this move towards increased use of contracts.

 

Educational Copying

The Bill appropriately extends the Part VB statutory licence for copying by educational institutions into the digital environment, and the Government has also decided that educational institutions should be able to exercise the new right of communication for those portions of works that they are permitted to copy. This right can be exercised under a single remuneration notice, which covers both reproduction and communication.

It would appear that the implementation of the new right would attract payment for both the reproduction and the communication, or ‘making available’. This is contrary to the current situation where the ‘communication’ in the print environment is performed under the fair dealing provisions.

The determination of what constitutes equitable remuneration in the above environment will be contentious as has proved to be the case in the current Copyright Tribunal case between the AVCC and CAL.

Reasonable portion

The 10% reasonable portion definition for print materials provides valuable guidance to libraries and users of information when quantifying what constitutes fair dealing. Translating this quantitative test into the digital environment, when ‘publishing’ has changed its format, is not an easy task. The attempt in subsection 10 (2A) to apply the ‘reasonable portion’ test, but only if there is a hard-copy version that is not readily available, provides some guidance (10% of the number of words). However this does present difficulties in an environment which has an increasing amount of material published only in electronic form.

Technological Protection Measures

While recognising the necessity of protection measures in the digital environment, CAUL has concerns about the application of these measures as proposed in the Bill. CAUL strongly supports the Australian Digital Alliance in its stance on the devices ban.

It is essential to clarify what ‘being reckless as to whether the device will be used for circumvention and infringement’ actually means in order to ensure that access to these devices for non-infringing purposes is not restricted.

 

As the timeline for response to the Bill has been short the above comments concentrate on those issues of specific concern to the university libraries. Comments on the sections relating to broadcasting, ISPs and computer software have been left to other organisations such as the Australian Digital Alliance.

 [Evelyn Woodberry]
19 March 1999.
 


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This site is written, compiled and maintained by Diane Costello, Executive Officer, CAUL.