CAUL supports the efforts of the Government to
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
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
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
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.
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.
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.
19 March 1999.
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