Council of Australian University Librarians (CAUL)

HOUSE OF REPRESENTATIVES STANDING COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
COPYRIGHT AMENDMENT (DIGITAL AGENDA) BILL 1999
Updated 10 December, 1999


The following response is provided by the Council of Australian University Librarians (CAUL) to the House of Representatives Standing Committee on Legal and Constitutional Affairs on the Copyright Amendment (Digital Agenda) Bill 1999, which was introduced into the House of Representatives on 2 September 1999.

Introductory Comments

The Explanatory Memorandum reiterates the governments aim that the Bill should ensure copyright law continues to promote creativity whilst allowing reasonable access to copyright material on the Internet and through new communications technologies. CAUL applauds this sentiment but also notes that the Bill includes a number of significant changes to the exposure draft which have the capacity to shift the balance in favour of the copyright owner.

The Explanatory memorandum mentions that the Bill is part of the strategic framework for the development of the information economy and also states that the amendments may result in higher annual payment than at present to owners of copyright under the Government statutory licence. This places copyright firmly in the economic arena. CAUL considers that it is worth noting that Australia is a nett importer of copyright and that the majority of the income generated through the statutory licences will flow overseas to the owners of copyright who, in the main, are international publishers. This raises concerns regarding CALs monopoly position and the limited number of Australian owners which CAL represents.

The consideration of copyright as part of the information economy increases the pressure on the government to ensure a balance between owners and users of copyright. Libraries provide a mechanism for access to information for the community at large. Libraries are funded by the people who use them, through the payment of income tax and rates, and provide equity of access, equal opportunity and the basis for the development of the ‘clever country’. It is essential to recognise the social good provided by libraries and not concentrate entirely on the economics involved. The maintenance of the fair dealing provisions is central to this concept.

CAUL has some concern that the underlying philosophy of the Bill appears to lack understanding of the nature of information in electronic form. The Internet provides both a publishing and delivery mechanism for information in electronic form. Anyone using the Internet is aware that copyright owners can self publish on the Internet and manage the delivery of their own product. While access large quantities of information stored in databases is usually managed by license agreements. The databases themselves are more often located overseas and payment for access and use is negotiated with the database provider. The nature of publication and delivery of information when it is in electronic form challenges the role of CAL and whether it is the appropriate body for managing funds for the use of information in electronic format. CAUL is pleased to note that in the Second Reading speech the Attorney-General indicated that the operation of the legislation, particularly the statutory licence scheme, should be reviewed within three years of commencement.

Issues

CAUL’s brief relates specifically to university libraries and its interest focusses on the library provisions. However as the library community also involves cross-sectoral cooperation, issues such as the definition of library are of interest.

Interpretation – section 10

Definition of ‘library’ – 10(1)

The inclusion of a definition of ‘library’ which excludes libraries in ‘for profit’ businesses from relying on library exceptions is a major divergence from the Exposure Draft of the Bill. The definition has not been part of discussions resulting from the Exposure Draft and is inconsistent with the government’s claim that the draft would not be substantially changed.

The definition removes an entire sector from involvement in national initiatives, and leaves some questions about the extent of the inclusion in the definition. While the Explanatory Memorandum confirms the intention is to exclude libraries operated by for profit organisations, such as corporations and law firms, it does leave some question about, for example government departments, hospitals and CSIRO.

Also, as mentioned above, access to information in electronic form is controlled largely by licence agreements. It is reasonable to expect that situations will arise where the licence agreements will allow use of the material which the Bill does not. This will not only apply to the libraries excluded by the definition but will impact on all libraries.

The impact of the introduction of this definition will be such that:

      1. Not for profit libraries will no longer be able to request documents from corporate libraries under section 50, for example, if a university law library requires an article held only in a law firm library, and vice versa.
      2. Scientists and researchers in private sector companies will no longer be able to make copying requests of their own internal libraries under section 49, even though they may have a right to make copies themselves under fair dealing. This will be a particular problem for employees carrying out research in remote areas, eg a geologist carrying out field research for a mining company.
      3. All other library exceptions for example, copying for preservation purposes, will no longer apply to corporate libraries.
      4. No corporate library will be able to rely on section 39A warning notices above photocopiers (or computer terminals) to reduce its risk of liability for authorising infringement.
      5. There is no adequate alternative means for corporate libraries to clear rights if this change is made. A voluntary licence from CAL does not provide blanket coverage for all rights holders and CAL does not generally indemnify licensees for copying of works not included in its repertoire. The scope of CAL's authority to license digital copying is also quite unclear.
 Reasonable portion – 10(2)

The reasonable portion definition in the print environment is an extremely useful tool for librarians and users as it sets out very clearly what is acceptable. The Bill attempts to define what constitutes a ‘reasonable portion’ in the electronic environment, and CAUL recognises that it is difficult to quantify this due to the change in how works are produced. While the efforts in this section are applauded it is recommended that the recommendation in the Bill is reviewed in two to three years time as the changes in technology may provide more workable options.

Library to User copying – Section 49

49(1)(a)

This section of the Copyright Act 1968 defines the process for providing information under the inter-library code. Consequently, it is difficult to find the purpose behind the change in wording of this section so that it specifically states that copies can only be provided from works held in the collection of a library or archives, or identify a situation when this would not be the case. Providing a copy from a published work can only occur when the work is held in ‘a library or archives’.

It is critical to this interpretation that the wording is ‘a library or archive’. The intention in the Explanatory Memorandum does not appear to be to limit access to information only to works specifically held in the library where the request is being made.

49 (5A)

This new exception states that requests under section 49 for material ‘acquired’ in electronic form, which forms part of a library or archives collection, can only be made available online to users within the premises. It does, however, allow users to print out a

hardcopy of the material they access, where that hardcopy would be covered by fair dealing. While this is an improvement over the severe restrictions of the Exposure Draft it remains problematic for libraries.

Under this wording libraries and archives will need to supply equipment specifically to comply with this section of the Bill and only for section 49 (5A). As is the case with material either purchased or accessed in electronic form it is conceivable that the licence conditions will allow for a broader use of the material than the Bill specifies.

 Library to Library copying – Section 50

Commercial availability 50 (7A) and (7B)

The change in section 50 in relation to commercial availability, that is, if the copy is made from an electronic form of a work, then it can only be supplied under the section 50 exemption if it was not commercially available to the library which requested it, is problematic. Unlike the hardcopy test, the test for works in electronic form applies to all works, including journal articles, and applies no matter how much of the work or article is to be copied. Thus, if a request is made by a library for a copy of a single article from an electronic copy held in another library (or even a single page of some other work), the supplying library cannot reproduce and supply from the electronic source material, unless the library officer makes a declaration that, after reasonable investigation, he or she is satisfied that 'the work' cannot be obtained within a reasonable time at an ordinary commercial price.

This particular section once again raises the issue of the understanding of how information is delivered in electronic form. The item required may be available commercially but only within a database or suite of databases. The item or portion may not be available for individual purchase. Does this mean that the requesting library cannot then obtain the portion they are seeking unless they purchase access to the entire database or suite of databases?

This section requires further discussion as it appears that any rights a library has to copy electronic source material under this provision could be overridden by the licence agreement which has been negotiated with the supplier. As mentioned previously, licence agreements have the capacity to grant users broader rights than they have under the Act.

 Unpublished works – section 51

51A (3)

The majority of the provisions in section 51 provide a workable environment for libraries and archives in relation to unpublished works. There is only one section which raises comment. Although the administrative purposes exception will now allow medium shifting to digital formats (not simply microform), the benefits of doing so are frustrated by the fact that the provision does not permit digital copies to be made available to users other than library officers.

The comments in this submission have been restricted to areas of specific interest to university libraries. As part of the Australian Vice Chancellor’s Committee (AVCC ) and a member of the Australian Libraries Copyright Committee (ALCC), CAUL also supports the issues raised by these bodies in their submissions in response to the Bill.
 
28 September 1999.


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