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Presentation by Jamie Wodetzki, Copyright Research Officer, ACLIS at the 2nd National Preservation Office Conference: Multimedia Preservation - Capturing the Rainbow, in Brisbane, 28-30 November 1995.
  • Overview
  • What is Multimedia Preservation?
  • Digital Preservation Under the Copyright Act 1968
  • Preservation
  • 'Replacement'
  • 'Medium shifting'
  • Other purposes
  • The copyright review process
  • Influencing copyright policy in the interests of 'preservation and access'
  • Three suggestions for improving copyright
  • Better preservation copying rights
  • Broader fair dealing doctrine
  • Shorter term of copyright protection
  • Conclusions

Overview

The title of this paper - Towards the Copyright Act 2000 - might give the impression that changes to the Copyright Act happen rather slowly. Whether it takes the next five years to make sensible changes to the law of copyright remains to be seen. However fast it happens, what really matters is that we end up with a better Copyright Act than we started with. For the sake of 'multimedia preservation', we can only hope that our law makers don't try to gloss over the impact of copyright law on the hard work of digital preservation.

In my paper today, I would like to talk about the following points.

  • What is 'multimedia preservation'?
  • How does the Copyright Act 1968 deal with digital preservation?
  • Where are we up to in the copyright review process?
  • How should we be seeking to influence copyright policy in the interests of 'preservation and access'?
  • Some suggestions for improving copyright.

What is Multimedia Preservation?

The term 'multimedia preservation' can mean either of two things. On the one hand, it can refer to the preservation of a number of different media by conversion to and storage in a common digital format. On the other hand, it can refer to the preservation of material that originated in a multimedia format.

In both cases, the process of preservation is likely to involve digital copying, and whenever someone creates a digital copy on fixed media (e.g. magnetic or optical media) there will be a 'reproduction' for copyright purposes. Hence the need to address copyright issues.

Digital Preservation Under the Copyright Act 1968

There is a mixed bag of 'preservation type' provisions in the 1968 Act. Mostly, these provisions exempt certain acts of copying from infringement, provided that various conditions are met. In some cases, the type of copying technology is unspecified, in which case digital copying may be possible. In other cases, it's not so clear.

In order to rely on the preservation and related copying privileges, it is important to test what you propose to do against various 'purposes' provided for in the Act. There will be different technical legal issues to be addressed in each of the following situations:

  • Copying for the purpose of preservation
  • Copying for the purpose of replacement
  • Copying for the purpose of 'medium-shifting'
  • Copying computer programs for backup
  • Copying by Australian Archives

Preservation

Copying works for 'preservation' is covered by subparagraph 51A(1)(a), copying recordings for 'preservation' is covered by subparagraph 110B(1)(a), and copying films for 'preservation' is covered by subparagraph 110B(2)(a).

The important points to note regarding the 'preservation' provisions are:

Works, recordings, and films are all covered.

The type of copying allowed is left open, which means that digital copying isn't necessarily excluded. However, it is not clear that multiple digital preservation copies can be made, and given the need for a few backup copies when copying to digital form, this is where the Act shows its age.

The exemption applies only when copying certain 'original material', such as manuscripts and 'first copies' of recordings or films. Thus, it is not possible to rely on the 'preservation' copying exemption when the material to be copied is held in a published form. This exemption really ought to apply to a broader class of material than manuscripts and 'first copies'-for example, rare items held in published form.

'Replacement'

Copying works for 'replacement' is covered by subparagraphs 51A(1)(b) and (c) and subsection 51A(4); copying recordings for 'replacement' is covered by subparagraphs 110B(1)(b) and (c) and subsection 110B(3); and copying films for 'replacement' is covered by subparagraphs 110B(2)(b) and (c) and subsection 110B(3).

As the term 'replacement' suggests, these provisions are not really designed for 'preservation'. The idea behind the replacement copying provisions is that where an item from the collection of a library or archive has been lost, stolen, damaged, or has deteriorated, and another (new) copy cannot be purchased to replace it, then it is OK for the library to make a replacement copy. Again, the type of copying is left open, so that digital copying may be possible. However, as with 'preservation' (above), the issue of digital backup copies needs

'Medium shifting'

Copying works for 'medium-shifting' purposes is covered by subsections 51A(2) and (3).

The 'medium-shifting' exemption is definitely not a 'preservation' provision. In this case, the purpose of the exemption is simply to allow a work to be transferred (i.e. copied) from one medium to another, on the understanding that the original version from which the copy was made is then destroyed. This is a technology-specific and narrow exemption that states quite clearly that only a single microform copy may be made. Thus, it is not possible to 'medium-shift' to digital form.

Another problem with the medium-shifting exemption is that it applies to works, but not to sound recordings or films. Thus, while it's OK to copy old newspapers, etc., to microform, it's not OK to copy and old film or outdated video format (e.g. Beta) to a more useable format (e.g. VHS). There is no good reason why the 'medium shifting' provisions should not be extended to include films and sound recordings.

Other purposes

There are a number of other provisions that are relevant to multimedia preservation. For example, there is a special exemption for making a backup copy of a computer program (see section 43A) and another exemption dealing with copying by Australian Archives (see section 51AA). I do not propose to go into these in any detail.

The copyright review process

Given that there is no shortage of changes required to the law of copyright, it is worth spending some time looking at what's going on in the area of copyright law reform.

In Australia, the Copyright Law Review Committee has been given a reference to 'review and simplify' Australia's Copyright Act 1968. This is intended to be the biggest overhaul of copyright since the Act was passed in 1968. Apart from making the Act simpler, one of the main aims is to remove references to outdated technology and concepts and to make the law more flexible to what is now a rapidly changing technological environment.

There are also various 'bits and pieces' of amendment likely to be made to the existing Act over the next year or so. These changes are best described as 'repair work' pending the completion of the CLRC review.

In the United States, a white paper entitled Intellectual Property and the National Information Infrastructure was recently published. The US white paper recommends a number of changes to the US Copyright Act 1976, and these are likely to be watched closely by Australian law and policy makers. The US view of copyright is being put quite strongly in international fora these days, and if there is a move towards a stronger regime over there, we can be sure that pressure (including trade pressure) will be brought to bear on Australia if we fail to give copyright owners similar levels of protection over here.

The European Union green paper Copyright and the 'Information Society' is yet another example of the degree to which all countries are striving to review and reinvent their copyright laws for the so-called 'information age'.

Underlying most national copyright regimes are a series of multilateral copyright treaties. The most important of these treaties is the Berne Convention. The World Intellectual Property Organisation (WIPO) is currently preparing a Protocol to the Berne Convention, which is intended to update it to cope with the impact of digital technologies and other changes.

All of these reviews are feeding into and off each other, and it can only be hoped that the great level of worldwide interest in copyright will help to produce a well-balanced model for copyright law, now and in the future.

Influencing copyright policy in the interests of 'preservation and access'

One of the challenges, as copyright changes, will be to ensure that it does not unreasonably get in the way of 'preservation and access'. However, from the copyright owner's perspective, the consequences of 'digital preservation copying' are very different from the consequences of providing 'digital access'. Although the case for better digital preservation copying rights is strong, the case for certain free rights of 'digital access' is more complex and will be more difficult to argue. Control of online 'access' (which can mean all sorts of things) is something the copyright owner will come to value a great deal. Thus, reaching agreement about what sort of access should be paid for, and what sort of access should be free will take quite some time.

In my view, if we want some changes to copyright as it relates to multimedia preservation, we should draw a clear line between copying for preservation and providing digital access. It is hard to argue against a modest right to copy for preservation purposes. Provided that the digital surrogate provides library users with no greater level of access than was possible with the non-digital version, there is no significant harm to the copyright owner.

Digitising even the best parts of the collections of libraries and archives will take many years. It's important, therefore, to start converting 'significant' cultural material into digital form so that, before too long, a large, quality body of work is 'multimedia-ready' in our libraries and archives.

As Nicholas Negroponte, said in Wired (May 1995 issue), if we allow libraries to start holding their collections in digital form now, it will allow us to

...spend the next 20 to 50 years hammering out new digital-property laws and international agreements without stunting our future. More importantly, it means that publishers can elect to make their bits available after they decide they have earned enough, and the bits will be ready to go.

Three suggestions for improving copyright

There are lots of ways that copyright could be made better. I want to focus on the following three:

  • Better preservation copying rights
  • A broader fair dealing doctrine
  • A shorter term of copyright protection

Better preservation copying rights

As noted above, preservation copying is one area where copyright could be more flexible and more generous to libraries, archives and similar institutions without any great harm to copyright owners. As ACLIS said in its submission to the CLRC

The nation's library collections are a rich and valuable resource. It is in the national interest that libraries should be free to take all reasonable steps to look after their collections. They have a right (indeed, an obligation) to store and preserve their holdings to ensure the cultural and documentary heritage of Australia is reasonably accessible to present and future generations...
The Copyright Act 1968 contains a number of provisions designed to facilitate what might broadly be called collection management by libraries. It is ACLIS' submission that these provisions be retained, simplified and amended to allow use of any technology in copying for preservation, replacement and medium-shifting purposes.

Specifically:

  • Copying for preservation purposes should not be restricted to a narrow range of original material
  • Amendments should make it clear that digital and any other copying techniques may be used under these provisions and that several backups of material in digital form are allowed where this is necessary to ensure the integrity of a library's collection
  • Copying for medium-shifting purposes should not be restricted to microform copying, and should be extended to apply to sound recordings and films, as well as works

The need for better preservation copying rights has been expressly noted in the US white paper:

...there is an important public interest in exempting certain library uses of copyrighted works and that the public interest is no less important-and, indeed, may be more important-when such use involves digital technology...
Libraries and archives are the trustees of our collective knowledge and must be able to make use of digital technology to preserve the Nation's heritage and scholarship

This is one clear case where the US is setting a very good example, and Australia should be urged to follow.

Broader fair dealing doctrine

Another important reform would be for Australia to adopt a broader and more flexible fair dealing defence. At present, 'fair dealing' is subject to strict purpose tests. If you cannot show that your purpose fits into one of the purpose pigeon-holes then fair dealing will not protect you, no matter how 'fair' the dealing may in fact be. We desperately need a flexible fair dealing defence, along the lines of the US 'fair use' defence, that is capable of 'picking up the crumbs' where a use of copyright doesn't fit a specific exemption, but is nonetheless 'fair'.

Shorter term of copyright protection

A big problem for conservators is that copyright remains a barrier long after many works have lost their commercial value. The standard copyright term of life plus 50 years is a very long time-quite long enough. And yet, the Europeans have just shifted to the longer term of life plus 70 years, and the Americans may well follow. Australia should resist pressure to do likewise, and should look very closely at the merits of having (in effect) a perpetual copyright for many unpublished works.

Conclusions

There is every reason to expect that multimedia preservation will be dealt with better under future copyright laws. The direction of US copyright law in this area sets a good example.

Although the speed of copyright change is clearly slow, it will happen faster is preservation and access are dealt with separately. We can only hope that technology forces a result sooner than 'the Copyright Act 2000' suggests.


Return to 1995 NPO Conference or NLA Staff Papers

Last updated 13 August 1998