ALRC’s views

28.84 The ALRC has not identified any significant problems currently being experienced by Australian researchers in accessing or using genetic information that is protected by copyright. However, it is possible that copyright law could in future impact on the conduct of genetic research. The ALRC considers that the law should strike an appropriate balance between protecting the investment involved in developing such databases, and facilitating reasonable access to their contents for research purposes.

28.85 One option would be to amend the level of copyright protection of genetic databases. The ALRC has concluded that the level of protection of databases under Australian copyright law is already high, and does not consider it necessary to recommend the introduction of a sui generis database right. Submissions generally indicated that copyright law adequately protects genetic databases.^[121] The ALRC considers that there is insufficient evidence of a need to change the level of protection.

28.86 The ALRC considers that it would be more appropriate to clarify the scope of the fair dealing exception from copyright infringement for the purpose of research or study. This exception reflects the public interest in promoting an appropriate balance between the interests of copyright owners and users. It permits individuals to reproduce portions of copyright works without payment, provided they do so for the purpose of research or study, and the dealing is fair in the circumstances. This approach is also in keeping with the ALRC’s approach to reform elsewhere in this Report. The ALRC considers it is more appropriate to recommend systematic reforms to the application of intellectual property rights generally—including in relation to genetic materials and technologies—than to take a technology-specific approach.

28.87 In the ALRC’s view, it is inappropriate to exclude research from the scope of the fair dealing exception merely because of its commercial purpose or objective. As discussed in Chapter 11, various policies promote the commercialisation of publicly funded research in Australia. While a research project might involve some form of commercialisation at some point, this does not undermine the potential public benefit to be gained from the research results. The ALRC also agrees with the approach of the Canadian Supreme Court that, as fair dealing is a ‘user’s right’, in order to maintain the proper balance between the rights of a copyright owner and users’ interests, it should not be interpreted restrictively.

28.88 The ALRC heard some concern that this approach might not comply with art 9(2) of the Berne Convention relating to exceptions and limitations on copyright. As noted above, this provides that member States may legislate to permit the reproduction of copyright works ‘in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author’.^[122]

28.89 The Copyright Act’s existing fair dealing provisions appear to fall within the scope of art 9(2) of the Berne Convention. The ALRC considers it unlikely that characterising research as commercial would, of itself, conflict with art 9(2). In practice, if a researcher sought to reproduce more than a reasonable portion of a work for fair dealing purposes, the application of the legislative guidelines in s 40(2) would adequately address the balance of interests involved.

28.90 The ALRC recommends that the Commonwealth should amend the Copyright Act to provide that research with a commercial purpose or objective is ‘research’ in the context of fair dealing for the purpose of research or study (Recommendation 28–1).

28.91 By itself, clarification of the scope of fair dealing would have little practical effect where a database owner uses a TPM and contractual arrangements to ‘lock up’ the database contents. While fair dealing protects the right to reproduce the copyright material, it does not extend to rights to access that material for such use. In practice, a researcher could be forced to enter into a licence agreement, or use a circumvention device or service, to access the work.

28.92 The CLRC recommended that the Copyright Act be amended to provide that an agreement or provision that excludes or modifies the operation of statutory provisions, including fair dealing for the purpose of research or study, has no effect. Phillips Fox made a similar recommendation. The submissions generally supported this approach. Accordingly, the ALRC recommends that the Commonwealth should amend the Copyright Act to provide that, in relation to databases protected by copyright, the operation of the provisions relating to fair dealing for the purpose of research or study cannot be excluded or modified by contract (Recommendation 28–2). Once implemented, this would ensure that any licence provision that purports to override fair dealing in a copyright work is unenforceable.

28.93 This reform would not affect a database owner’s ability to ‘lock up’ its database through a TPM. The Copyright Act currently does not prohibit the use of circumvention devices or services by researchers or any other person. However, as commercial dealings in these devices or services are prohibited, this will limit their availability to Australian researchers.

28.94 In practice, however, this matter has been somewhat overtaken by the AUSFTA. Australia has agreed to prohibit the circumvention of TPMs that control access to a copyright work, subject to an exhaustive list of exceptions that does not include fair dealing. Australia has also agreed to strict limits on the exceptions that it may grant to the existing prohibition on commercial dealings in circumvention devices and services. Australia may, however, provide an exception to the prohibition on circumvention of access control measures for non-infringing uses of a work if an actual or likely adverse impact on those uses is credibly demonstrated in a review.

28.95 The ALRC understands that the Attorney-General’s Department intends to undertake consultations prior to implementing the legislative amendments necessary for Australia to comply with these obligations. This process would include consideration of the need for any exceptions to the prohibition on the circumvention of access control measures.

28.96 Accordingly, the ALRC recommends that, prior to the implementation of art 17.4.7 of the AUSFTA, the Australian Government should assess the need for an exception for researchers engaging in fair dealing for the purpose of research or study in relation to databases protected by copyright. Once the prohibition has been implemented, the Australian Government should periodically review the impact of the anti-circumvention provisions on the practical exercise of fair dealing for the purpose of research or study in copyright works (Recommendation 28–3).