Certain exceptions should be retained

The public interest and copyright

11.67 In Chapter 4, the ALRC asks what exceptions should be retained if Australia introduces a fair use exception.^[79] In the ALRC’s view, the exceptions relating to preservation copying and document supply by libraries and archives ought to be retained in order to promote the public interest in research and study and the preservation of cultural heritage.

11.68 The preamble to the World Intellectual Property Organization Copyright Treaty 1996 recognises ‘the need to maintain a balance between the rights of authors and the larger public interest, particularly education, research and access to information, as reflected in the Berne Convention’.^[80] Similar statements have been made at the domestic level. The Explanatory Memorandum to the 2006 amendments recognised that while the Copyright Act gives exclusive economic rights to copyright owners to promote creativity, these rights may need to be restricted, in some circumstances, in favour of wider public interests.^[81]

11.69 As noted above, many public institutions have statutory obligations to preserve and provide access to material in their collections. The ALRC considers that the public interest is served by delineating clearly what libraries and archives are permitted to do with copyright material in fulfilling their core public service missions. Retaining some specific exceptions for libraries and archives would be consistent with the approach taken in other jurisdictions, including those that have fair use.^[82]

Preservation copying

11.70 The digital environment has enabled digital preservation by libraries and archives, not only as a means to preserve ‘legacy’ works—such as old manuscripts and films—but equally those that are ‘born digital’ in the face of technological obsolescence.^[83]

11.71 The ALRC proposes that a number of provisions relating to preservation copying should be repealed. Instead, the Copyright Act should provide, in one provision, that libraries and archives are able to, in respect of both published and unpublished material, make ‘as many copies as is reasonable’ for preservation purposes.

Current law

11.72 There are numerous provisions in the Copyright Act that deal with preservation copying by cultural institutions—these are divided between copying of ‘works’^[84] and ‘subject matter other than works’.^[85]

11.73 Under s 51A, a library or archive can make and communicate a reproduction of the work if :

• the work is in manuscript form or is an original artistic work—for the purpose of preserving against loss or deterioration or for research that is being carried out at the library or archive;^[86] or

• the work is in published form but has been damaged, deteriorated, lost or stolen—for the purpose of replacing the work.^[87]

11.74 In relation to works held in published form, preservation copying is only available subject to a commercial availability declaration. That is, preservation copying is only permitted if, after reasonable investigation, the library or archive is satisfied that a copy (not being a second-hand copy) cannot be obtained within a reasonable time at an ordinary commercial price.^[88] Further, reproductions of original artistic works can only be communicated via copy disabled computer terminals installed within the premises of the library or archive.^[89]

11.75 Mirror provisions can be found in s 110B in relation to reproductions of sound recordings, cinematographic films, including the commercial availability test, and the restriction of online communication to computer terminals installed within the premises of the library or archive.^[90]

11.76 In 2007, three further exceptions were inserted into the Copyright Act: ss 51B, 110BA and 112AA. These provisions allow certain ‘key cultural institutions’ to make up to three reproductions of ‘significant works’, being ‘works of historical or cultural significance to Australia’ for preservation purposes.^[91] They apply separately and are in addition to the provisions that apply to library and archives generally.^[92] The Supplementary Explanatory Memorandum noted that:

The policy for this exception is to ensure that key cultural institutions are able to fulfil their cultural mandate to preserve items in their collections consistent with international best practice guidelines for preservation.^[93]

UK

11.77 In the UK, authorised persons may only produce one copy of any item in the permanent collection of the library or archive, to replace or preserve the item, or to replace an item in another library that has been lost, destroyed or damaged.^[94] Preservation copying is subject to a similar commercial availability test as in Australia.^[95] The exception only applies to literary, dramatic and musical works and not artistic works, and sound recordings or films. Permission or licences from rights holders are necessary to make preservation copies of works not covered by the exception.

11.78 In 2006, the Gowers Review of intellectual property law recommended that the preservation exception be amended to integrate a general purposed-based exception which would permit the reproduction of all classes of copyrighted works for preservation purposes, and an exception for format-shifting of archival copies of works to ensure that records do not become obsolete.^[96]

11.79 In response to the Hargreaves Review, the UK Government intends to amend the Copyright, Designs and Patents Act 1988 (UK) to:

• extend preservation copying to any type of copyright work and provide that the work could be copied as many times as necessary to preserve the work;

• ensure that this permitted act cannot be undermined by restrictive contract terms; and

• retain the current restriction to works in a permanent collection for which it is not reasonably practicable to purchase a replacement, to minimise potential harm to rights holders.^[97]

US

11.80 In the US, the preservation copying provisions distinguish between published and unpublished works. Under s 108(b) of the Copyright Act 1976 (US), libraries and archives may make up to three copies of an unpublished copyrighted work in their collection for the purposes of preservation and security of the deposit or research use in other libraries or archives.^[98] With respect to published works, s 108(c) provides that three copies are permitted to replace a work in a collection that is lost, deteriorating, stolen or the format of which has become obsolete. However, the provision only applies where an unused replacement cannot be obtained at a fair price after reasonable effort.

11.81 In both instances, copies made in digital formats cannot be made available to the public outside library or archive premises.^[99]

11.82 Section 108(c) has been criticised for not allowing for pre-emptive preservation as it requires one of the triggering events to occur, and therefore is ‘ineffective as a means to preserve works that can easily be damaged or lost before preservation copies can be made’.^[100] However, the libraries and archives provisions do not operate to limit the operation of the fair use provision under s 107, which may be invoked to reproduce more than three copies of published or unpublished works, or pre-emptive preservation.^[101]

Canada

11.83 In Canada, libraries, archives and museums can make a copy of a work or other subject matter, whether published or unpublished, in its permanent collection if the work is deteriorating, damaged or lost, or is at risk of being so.^[102] Copying is also permitted if the library ‘considers that the original is currently in a format that is obsolete or is becoming obsolete, or that the technology required to use the original is unavailable or is becoming unavailable’.^[103]

11.84 Preservation copying does not apply where an ‘appropriate copy is commercially available in a medium and of a quality that is appropriate’.^[104]

Meeting preservation best practice principles

11.85 It is striking to compare the disparate and complex preservation copying provisions in the Copyright Act with those of other jurisdictions. The ALRC considers that the Copyright Act can be simplified by repealing the current preservation exceptions, and inserting one provision that would allow libraries or archives to make copies of material necessary for the purpose of preservation. This would apply to both published and unpublished material.

11.86 A number of international best practice guidelines on digital preservation suggest that more than three preservation copies are required. For example, the International Standards Organisation (ISO) contemplates a range of different archived copies, including:

• an archived master copy from which access copies are derived;

• at least one access copy that is accessible to the public or restricted audience, and multiple copies may be desirable to facilitate access through different formats or platforms;

• at least one local backup which enables the restoration of the archived copy in the event that information system is compromised; and

• at least one remote disaster recovery function in a physically separate location.^[105]

11.87 Submissions from cultural institutions argued strongly that the limit of three copies under the Copyright Act was inadequate to deal with digital preservation.^[106] The ADA and ALCC called for the introduction of an exception that is ‘technology neutral, allowing as many copies to be made as is necessary to facilitate effective preservation’.^[107] Others called for the provisions to be simplified using technology neutral wording such as ‘copy’ to replace ‘reproduction’, ‘fascimile’ and ‘comprehensive photographic reproduction’.^[108]

11.88 Robert Burrell, Michael Handler, Kim Weatherall and Emily Hudson queried whether the distinction between original and published works remains tenable in the digital environment and argued that the preservation exceptions should apply to all works, whether published or unpublished. They also questioned the policy reasons for the three copy limit applying to ‘key cultural institutions’ and not other libraries and archives:

The Explanatory Memorandum did not explain why these provisions should not be available as a matter of course to all cultural institutions, and it would be difficult to argue that only key cultural institutions are the repositories of significant works.^[109]

11.89 Rights holders did not express major concerns about copying works for preservation purposes, but were concerned with controlling access to the works.^[110] ARIA, Copyright Agency/Viscopy and the Arts Law Centre of Australia argued that there is a distinction between archiving for the purposes of preservation and the potential for subsequent uses of such material, in ways that affect the ability of the owner to commercially exploit the material.^[111]

11.90 The ALRC considers that preservation of copyright material is in the best interests of both users and rights holders. Cultural institutions are in the best position to determine how to preserve their collections and should be free to make copies necessary to preserve copyright material. Consistent with other jurisdictions, the ALRC proposes that the commercial availability requirement be retained to ensure that there is no prejudice to rights holders.

11.91 There appears to be little utility in having different preservation exceptions addressing ‘works’ and ‘subject matters other than works’. Preservation is required of all types of copyright material. There appears to be no strong policy reason as to why the Copyright Act stipulates the three copy limit only for ‘key cultural institutions’. While it may be argued that these institutions have the capacity to engage in best preservation practices, that fact alone should not rule out other libraries and archives, as defined by the Copyright Act, that may also hold culturally significant material that requires preservation.^[112]

11.92 The ALRC also agrees with rights holders that there is a distinction between preservation and the subsequent communication of such works, which should be considered separately. While the ALRC’s proposals extend the preservation exceptions, the question of access is left to fair use or licensing solutions.

Document supply for research and study

11.93 Submissions expressed divergent views on whether reforms to the exceptions relating to document supply for the purposes of research and study are needed. There is a clear tension in this area between the role of libraries to facilitate research and study and the potential effect of the exception on emerging markets for journals and publications.

Current law

11.94 Under ss 49 and 50 of the Copyright Act, a person may make a request in writing to be supplied with a reproduction of an article, or part of an article contained in a periodical or published work held by the library or archive.^[113] There are a number of limits to reproduction.^[114] A key limit is that where a request is made for reproduction of the whole of the work, or part of a work that contains more than a reasonable portion of the work, reproduction cannot be made unless:

• the work forms part of the library or archives collection; and

• before a reproduction is made, an authorised officer, after reasonable investigation is satisfied that the work cannot be obtained within a reasonable time at an ordinary commercial price.^[115]

11.95 Where a library acquires a work in an electronic form, the library may make available the work online within the library premises in a manner such that users cannot make an electronic copy of the work, or communicate the article or the work.^[116]

11.96 The supply of unpublished works is covered by s 51, under which recordings and films can be copied and supplied for research or study, or with a view to publication.^[117] Works that qualify for preservation copying under ss 51A and 110B can also be reproduced for research; however, this appears to be limited to onsite research.^[118]

International comparisons

11.97 Canada, the UK, the US and New Zealand all have specific provisions allowing libraries and archives to supply users or other libraries with reproductions of works or whole works for research and study purposes. Each of these jurisdictions imposes limits on the delivery of documents.

Canada

11.98 In Canada, it is not an infringement for a library or archive ‘to do anything on behalf of a person that the person may do personally under s 29 or s 29.1’.^[119] Section 30.2 deals with copies of articles for research and study. It permits a library, archive or museum to make, by reprographic reproduction a copy of a work that is, or is contained in, an article published in:

• a scholarly, scientific or technical periodical; or

• a newspaper or periodical, other than a scholarly, scientific or technical periodical, if the newspaper or periodical was published more than one year before the copy is made.^[120]

11.99 A limitation applies to providing a copy to a person in digital form. The statute requires that the providing library take measures to prevent a person who has requested the copy from: making any reproductions, including any paper copies, except for printing one copy of it; communicating it to any other person; or using the copy for more than five business days from the day on which the person first uses it.^[121]

The UK

11.100 Under the Copyright, Designs and Patents Act 1988 (UK), a librarian of a prescribed library can make and supply a copy of an article in a periodical, or from a published edition a copy of part of a literary, dramatic or musical work, subject to the following conditions:^[122]

• The librarian must be satisfied that the person requires them for the purpose of research for a non-commercial purpose or private study, and will not use them for any other purpose.^[123]

• No person is furnished with more than one copy of the same article or with copies of more than one article contained in the same periodical.^[124]

• The person who receives the copy must pay a sum not less than the cost of the copies (including a contribution to the general expenses of the library).^[125]

11.101 The Australian Publishers Association (APA) highlighted an example of how these provisions are implemented by the British Library. Copies made by the British Library are made available to the client over a secure server that the client is able to access for 14 days. Clients have 30 days in which to access the file, after which it is deleted from the server. After that time, a client must make an additional payment and request. The file cannot be converted into any other format and cannot be ‘cut and pasted’.^[126]

11.102 The payment of a fee for reproduction of the document is separate from a ‘copyright fee’, which is payable if the customer is requesting the document for non-commercial purposes, or requires documents to be delivered within 2 hours or as an immediate download.^[127]

The US

11.103 Under s 108(d) of the Copyright Act 1976 (US), libraries and archives can supply in response to a request, ‘no more than one article or other contribution to a copyrighted collection or periodical issue, or … a copy or phonorecord of a small part of any other copyright work’. Under s 108(e), a library or archive can reproduce or distribute an entire work in response to a user request if it first determines that ‘a copy or phonorecord of the work cannot be obtained at a fair price’. In both instances, the library must have no notice that the work will be used for any purpose other than private study, scholarship and research.^[128]

11.104 There are limits to s 108(d) and (e), including a qualification that the library or archive derive no commercial gain from the reproduction.^[129] Further, supply must include a notice that the work may be protected under copyright law.

11.105 The Section 108 Study Group recommended that electronic delivery of copies under s 108 (d) and (e) should be permitted only if libraries take additional measures to:

• ensure that access is provided only to the specified requesting user; and

• deter unauthorised reproduction or redistribution of the work.

11.106 The Group members agreed that adequate measures will depend on the type of work and the context of use, but there was no consensus on which measures were adequate, and whether technological protection measures should be required in any given case.^[130]

New Zealand

11.107 Under the Copyright Act 1994 (NZ), a library or archive can supply periodicals or parts of a published work, subject to limitations. In particular, s 56A provides that a library or archive does not infringe copyright by communicating a digital copy to an authenticated user if the following conditions are met:

• the librarian or archivist has obtained the digital copy lawfully;

• the librarian must ensure that each user is informed in writing about the limits of copying and communicating under the statute;

• the digital copy is communicated to a user in a form that cannot be altered or modified; and

• the number of users who access the digital copy at any one time is not more than the aggregate number of digital copies of the work that the library or archive has purchased or for which it is licensed.^[131]

11.108 An ‘authenticated user’ is defined as someone who has a legitimate right to use library or archive services and can access the digital copy only through a verification process.

Emerging distribution markets

11.109 A number of publishers submitted that any expansion of the library and archives exceptions relating to document supply would undermine emerging distribution and licensing models.^[132] For example, the APA argued that part of the historical rationale that underpins the document supply exceptions—such as Australia’s geographical isolation and inability to retrieve materials quickly—no longer applies in the digital environment. It argued that such ‘legacy’ provisions should be repealed.^[133] The APA stressed there is now immediate access to authorised copies and that digital technology assists in both identifying and communicating with publishers and/or collection societies able to license the use of copyright material on behalf of publishers. It was argued that the exceptions ‘have no place in copyright legislation that supports a digital economy’.^[134]

11.110 Concerns relating to market effects were summarised by the International Publishers Association:

When considering any revision of the current provisions, care should be taken not to impede the growing document delivery and other online services, provided by commercial entities, including publishers themselves … Libraries are major clients of publishers, in particular of academic publishers. In the digital environment, their digital services compete to a certain extent with publishers in serving readers. Any revised provision should not interfere with the sustainability of developing new delivery and business models, and therefore the viability of the publishing industry as a whole.^[135]

11.111 Publishers were concerned that ss 49 and 50 may be used, including by overseas parties, as a way of securing cheaper, or free, documents rather than purchasing or licensing such works. It was argued that the document supply provisions should only be available to users in Australia, and expressly for the purposes of private study and non-commercial research.^[136] Further, communication of digital material should be limited to terminals on library premises only.^[137]

11.112 A further concern was that files distributed by libraries and archives were susceptible to further distribution by users on file-sharing sites. Allen & Unwin suggested that libraries ‘frequently create files without any digital security and send them to patrons as email attachments’ and that ‘requiring library patrons to warrant the file is for personal use is no real protection with a digital file’.^[138]

11.113 The ADA and ALCC and the NLA were aware of such concerns. The ADA and ALCC suggested that there ‘has not been any expectation on the part of libraries that these copies would be made available for wider public access, or to reduce purchasing of digital content licenses’.^[139] In its submission, the NLA drew attention to a survey it conducted which showed that file sharing as a result of document supply is low.^[140]

11.114 As an alternative to the repeal of the provisions, the APA suggested that document supply could be modelled on that of the British National Library, as a solution that ‘meets the needs of the library and researchers without unduly prejudicing the interests of copyright owners’. Under this model:

• libraries are required to pay a licence fee;

• copies are required to be supplied with relevant TPMs in place (either as provided with the publication by the publisher or as may reasonably limit the uses to which the copy may be put in light of the purposes of the supply);

• copies are required to be supplied with all relevant electronic rights management information in place; and

• use is expressly limited to private study and non-commercial research.^[141]

11.115 Copyright Agency/Viscopy suggested that ‘making different provisions for commercial entities would not impede their access to content’ as they could acquire works from libraries on a ‘cost recovery’ basis or on payment of a ‘copyright fee’.^[142] Alternatively, ‘libraries could supply the materials to corporations that are covered by a licensing solution for the use of the material’.^[143] The Arts Law Centre argued that a ‘statutory licence system could be put in place to provide effective remuneration to rights holders for these uses’.^[144]

Effects on scholarship and research

11.116 Cultural institutions voiced concerns over the complexity of the document supply provisions, including their limited breadth and inefficiency in operation. The ADA and ALCC argued that:

• the 1,600 word provision is complex and difficult to administer for library staff;

• there is real uncertainty about whether libraries can fulfil document supply requests for purposes other than research and study under s 200AB; and

• the need to destroy all electronic copies sent to the user as soon as practicable has resulted in inefficiencies and increased cost for end users.^[145]

11.117 At the same time, the NLA advised that document requests in electronic form have been steadily increasing. Since the introduction of its Copies Direct service, requests from individuals have increased from 2000 in 2002 to 13,000 in 2012.^[146]

11.118 The ADA and ALCC submitted that ‘libraries, who may be the only source of material requested by a user, should be permitted to supply documents in any circumstance where the user’s purpose is recognised as legitimate under copyright law’.^[147] The National Library suggested that a new fair use provision could allow it to provide copies for purposes which combine research and study with other uses, as it currently declines requests that do not fall squarely under research and study.

11.119 The websites of these cultural institutions also confirmed that where a request falls outside the parameters of a current fair dealing exceptions, the onus is on the individual to clear the rights.^[148]

11.120 The Independent Scholars Association of Australia (ISAA) argued that when considering issues relating to access to electronic material, the needs of ‘independent public scholars who do not have access to specialised academic support when conducting research’ should be a consideration:

From the viewpoint of ISAA members who are engaged in research (like myself) the crucial enabling factor is to have free access to academic journals and other scholarly resources, all of which are now available electronically and often, electronically only. I could not do the work required for my current project without free access to an academic library.^[149]

Protection of the public interest

11.121 The debate in relation to document supply is, in many ways, one about what ought to be a legitimate role of libraries in a digital environment. In the ALRC’s view, the emergence of markets providing licensed on demand access to journal articles and copyright works should not, of itself, override the wider public interest in research and education. However, there ought to be reasonable limits on document supply services to recognise the role of emerging distribution markets.

11.122 In the ALRC’s view, the approaches taken in Canada, the UK, the US and New Zealand and the Section 108 Study Group recommendations have merit. The ALRC proposes that the current document supply provisions be simplified and amended to provide that libraries and archives may provide electronic copies of a work to a person for private study and research subject to limitations, including measures to ensure that:

• the person requesting the document cannot make further copies or communicate the work to other persons;

• the work cannot be altered; and

• access to the work is only provided for a limited time period.

11.123 The ALRC recognises that, in many cases, libraries are the only means by which people may be able to access certain types of copyright material and libraries should be able to continue their role in promoting research, education and study.

11.124 In the analog era, where access was limited to the physical location of the library or archive, the user had to suffer some inconvenience by travelling to the location in order to access the works. There was an incentive for the user to overcome this inconvenience by buying a copy of the work they wished to use. In the digital era—in particular with the rollout of the National Broadband Network—it is harder to justify a requirement that every user must access copies of works in the physical locations of the libraries.

11.125 However, the ALRC considers that access can be provided without impeding emerging markets for document delivery. For example, libraries could provide access to documents through a secure website to ensure that only the person who requested the document can access it. Technologies could be implemented to limit the type of use (for example, read only) and to ensure that the work cannot be altered. Limits could also be placed on the time available for the copy to be accessed, and perhaps, where the work can be accessed from (for example, only within Australia).

11.126 The ALRC invites stakeholder discussion on whether the limits proposed are appropriate and adequate for the digital environment.