Council of Australian University Librarians (CAUL)

Copyright Reform and the Digital Agenda
Proposed Transmission Right, Right of Making Available and Enforcement Measures

Updated 22 October, 1997

The following response is provided by the Council of Australian University Librarians (CAUL) to the Discussion Paper: Copyright Reform and the Digital Agenda, released jointly by the Attorney-General's Department and the Department of Communications and the Arts.

Introduction

CAUL recognises the need to maintain a balance between the broader public interest, particularly education, research and access to information, and the interests and rights of copyright owners. The exclusive rights of copyright owners have always been limited in scope and duration in an effort to ensure reasonable access to copyright material in the public interest. This balance should apply to the digital environment as it has in the analog environment.

The digital environment provides new products, services and roles for information specialists and requires a new understanding of the impact of the use of the technologies on issues such as copyright. In this environment it must be remembered that the analog environment will not initially disappear and the rights and exceptions embodied in the current Copyright Act must be maintained.

CAUL also recognises the increasingly international nature of copyright, particularly in the digital environment, and the necessity for Australia to meet its international obligations in this particularly case to WIPO.

New WIPO Copyright Treaty and WIPO Performances and Phonograms Treaty

The WIPO Copyright Treaty and WIPO Performances and Phonograms Treaty have been developed in recognition that the digital environment requires an extension of copyright law and that this applies at an international level.

The Copyright Treaty on reading appears to maintain the scope and applicability of exceptions and limitations with Article 10 of the Copyright Treaty and the

accompanying Agreed Statement as the key to maintaining the balance between copyright owners and users. As well as reiterating the three-step test contained in Article 9(2) of the Berne Convention, it also maintains the importance of exceptions and limitations to any new rights which apply to the digital environment.

CAUL recognises the necessity to extend copyright protection to the digital environment, but reiterates the importance of a translating the balance inherent in the WIPO Copyright Treaty when interpreting the Treaty into Australian legislation.

New Transmission right

The introduction of a broadly-based transmission right raises concerns regarding the extent to which the new right may catch established practices such as fax and e-mail. The scope of the new right has not been particularly well defined which leads to questions about how it will affect library practices.

Library practices currently covered by the fair dealing, library copying and document supply provisions could potentially fall within the scope of the new right. The use of fax and more recently electronic mail for the purposes of document supply under ss49 and 50 enable delivery to students and staff, especially those in remote areas. The changes occurring in the method of delivery of teaching is increasing the emphasis on flexibility and the use of digital technology. It is therefore essential that appropriate exceptions to the new right are applied to enable effective use of the developing technologies.

CAUL agrees with the statement in 4.13 that the new transmission right would not apply to and would be distinguishable from the distribution of physical copies of copyright material, such as books and sound recordings.

Right of Making Available

This particular right is of vital concern to CAUL. The amount of information available in digital form is increasing rapidly and provides the opportunity for improvements in access for students and staff of the institution regardless of location. The scope of this right is therefore critical in defining access to digital copyright material within the institution.

Specific exception must be recognised for the making available of copyright material by a library or information service to library users where the transaction is not commercial.

The definition of the term 'to the public' is of concern to CAUL as expressed in the ACLIS response to the Discussion Paper.

Exceptions to the new rights

Temporary and/or incidental copies

CAUL supports the argument that in the digital environment all the temporary reproductions that are made for the sole purpose of making a work perceptible, or which are made as part of a technical process, should not constitute a reproduction within the meaning of Article 9(1) of the Berne Convention.

CAUL supports the assertion in 4.56 that the extension of the copyright owner's reproduction right to cover temporary and incidental reproductions in the course of transmissions would tilt the copyright protection too far in favour of copyright owners.

"Browsing"

CAUL supports the view that 'browsing' does not constitute an act of transmission, and that the incidental copy created in the course of browsing does not infringe the reproduction right. The right to read or browse is fundamental to the analog environment and should be translated to the digital environment. Any charge for 'browsing' in the digital environment can be considered as a charge for reading and is unacceptable.

Fair dealing

The issue of fair dealing is central to the dissemination of knowledge in the use made of copyright works, regardless of format. The underlying philosophy of the current Act strikes a balance between the rights of copyright owners and copyright users and it is recommended that any changes to the Act, whether for purposes of simplification or for the inclusion of new technologies, should include the exceptions which enable the balance to be maintained.

As mentioned previously, the WIPO Copyright Treaty includes particular mention of the continued applicability of existing limitations and exceptions in the digital environment. The application of fair dealing to a new transmission right and right of making available can be seen as part of the process of meeting this requirement.

One area of the Act which cannot be easily applied in the digital environment is that of the 'reasonable portion'. The definitions in the Act currently apply to the publishing and delivery mechanisms of the print environment which do not translate directly to the digital environment . However while there may need to be changes in relation to the digital environment, the application to the print environment remains valid and should not automatically be subject to change.

Libraries and archives

The library and archives exceptions in the current Act assist in both the conservation and delivery of information. In a situation where the information may only be available in digital format, requiring specislist equipment to enable access, the library role in providing access increases in importance to ensure that what does not develop is a society consisting of the information-rich and information-poor based on the ability of the individual to own required equipment.

It is essential that an exception to the proposed 'right of making available' is created so that libraries are able to continue to serve as access points to information regardless of the delivery mechanism required.

The 'right of transmission', as discussed previously, has implications for libraries depending on the proposed scope. As a broad based right it could be expected that fax and e-mail will be caught in the net, which has implications for document supply. If libraries stand to lose these exceptions under the new transmission right then legislative changes are required to ensure their continuation.

CAUL supports the suggestion outlined in the ACLIS submission regarding changes to the wording of sections 49 and 50 to exempt a library from liability for copyright infringement where a document is supplied by way of transmission. Specifically, the words 'and supply(including supply by transmission)' should be added to subsections 49(6) and 49(7), and similar changes should be made to subsections 50(3) and 50(4).

Liability of carriers, carriage service providers (including ISPs) and content service providers

CAUL supports the proposal that, to the extent that ISPs do not determine the content of material accessed via their networks, they would not then under the proposed scheme be considered to have transmitted that material or made it available to the public.

CAUL supports the proposal that the law of authorisation as provided for in the Copyright Act, also apply in relation to determining the liability of an ISP in infringing the proposed transmission and making available rights. As ISPs can only exercise a limited amount of control over the use of the services they provide without infringing on the actions of subscribers. The use of notices, as outlined in section 39A of the current Act and which apply to photocopiers, could be altered and applied in this situation.

Enforcement measures

Section 5.1 states that these amendments are proposed 'to assist owners of copyright to enforce their rights'. While it is recognised that enforcement measures may be considered to be necessary to ensure the Act is complied with, the implication that the enforcement measures apply only to owners of copyright conflicts with the issue of balance between owners and users which has been raised throughout the document and this response. While owners wish to protect their rights, it then follows that users should be able to protect their rights in a similar manner.

Technological measures

As the paper is dealing with the digital environment it follows that there will be a range of technological measures available so that information is only provided to 'authorised' users. As the technology continues to develop the number and range of the tools available will increase also. Any attempt to list the technological systems as part of the legislation will be incomplete due tot he nature and speed of developments. A broad term such as 'effective technological measures' is likely the only way in which these measures can be effectively cited.

Care must also be taken that the extensive use of technological measures does not hamper the libraries in their preservation role, or limit the application of the users right to 'fair dealing'.

Rights management information

In the digital environment the potential for the removal of rights management information increases due to the electronic nature of the information and the methods by which transfer can occur. In this environment it is important to distinguish 'intention' in the removal of the rights management information in contrast to the inadvertent removal through certain types of file transfer.

CAUL recognises the necessity to have some form of enforcement however it should be commensurate with the changes anticipated in the digital environment and not infringe on an individuals privacy or on the fair dealing rights of the user.

Concluding Comments

CAUL recognises the necessity for Australia to apply the proposed right of transmission, the right of making available and enforcement measures as part of the governments international obligations. The content of these provisions should however maintain the balance between copyright owners and users which has been developed in the print environment, and proposed changes should not replace the current Act but supplement it to allow for changes in format and delivery mechanisms.

While the above comments are provided in response to the issues outlined in the Discussion Paper, without a knowledge of the intended wording and scope of the proposals it is difficult to comment more fully. A more detailed response can be provided when further information becomes available.

CAUL submits that:

Evelyn Woodberry
Director, Information Services
Bond University

16 September 1997


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