Staff Papers

A new paradigm for access:
the implications of current copyright law reform initiatives

Presented by Margy Burn, Assistant Director-General, Australian Collections & Reader Services, at ‘Archives at Risk: Accountability, Vulnerability and Credibility’ - the Australian Society of Archivists Annual Conference, Brisbane, Queensland, July 1999.


CONTENTS


Introduction

In the last six years there has been a great deal of copyright law reform activity in Australia and indeed, the rest of the world. In this paper I will focus on two major reviews likely to lead to fundamental change to our copyright law which have important implications for libraries and archives: the legislative amendments known as the ‘Digital Agenda’ and the recently completed reference by the Copyright Law Review Committee (CLRC) on Simplification of the Copyright Act.

Apart from these two major reviews there have been several others, not quite so well known. A discussion paper on moral rights has led to the drafting of legislation, expected to be introduced in the next Parliamentary session, establishing for the first time in Australia the non-economic rights of attribution and integrity. A report on the protection of Indigenous intellectual property has not yet led to law reform, perhaps not surprisingly, given the challenges of incorporating concepts of collective Indigenous ownership on a European intellectual property regime which is fundamentally individualistic. Not to mention the lack of a powerful lobby group whose economic interests impel them to apply pressure for law reform! However, there has been some extremely interesting recent case law in this area. There are signs that the Government is showing renewed interest in Shane Simpson’s 1995 review of the Copyright Collecting Societies. And then there is the new reference to the CLRC to report on the Copyright Tribunal; the House of Representatives Standing Committee on Legal and Constitutional Affairs enquiry into copyright enforcement and infringement and the recently announced Competition Review of intellectual property legislation.

It can be difficult for non-lawyers to keep up with all this activity but it is vitally important that information professionals and those working with documentary heritage materials understand the implications for collection managers and users of records. I'll return to this point. But first, let me give some brief background on the two major reviews, the Digital Agenda amendments and the CLRC Simplification reference.

The Digital Agenda

The Digital Agenda amendments arose from the work of an expert advisory committee, the Copyright Convergence Group, which reported to Government in June 1994. The ensuing legislative reforms have been slow in coming. But change is now in sight with the release in Feburary 1999 of an exposure draft bill for the Digital Agenda amendments to the current Copyright Act. There has been a great deal of interest in the Digital Agenda amendments with some eighty submissions received in response to the exposure draft. After these submissions have been considered by the Attorney General's department it is expected that the final bill will be introduced into the August 1999 parliamentary session.

New "transmission" right

The Digital Agenda amendments will introduce a new technology neutral exclusive right for copyright owners, the right of "transmission to the public" which will overcome technology specific terminology in current legislation, such as "broadcast" "wireless telegraphy" and "cinematograph film". Such terminology does not give adequate coverage to mature technologies such as cable TV and the Internet, let alone newly emerging or yet to be discovered communications technologies.

The Digital Agenda reforms are intended to provide certainty to Internet service providers and telecommunications carriers about their liability for infringement and to meet Australia's international treaty obligations by harmonising our legislation with other major jurisdictions such as the EU and the US. The amendments also introduce new enforcement initiatives, including a ban on commercial dealings in hardware or software devices designed to circumvent intellectual property protection of copyright works.

The ‘library and archives’ exceptions

The technology neutral provisions of the Digital Agenda amendments also extend to users of copyright material. Under the exceptions provisions applying to libraries and archives in the current Act (invariably shorthanded and called the ‘library’ provisions) libraries and archives can only supply "copies" (that is photocopies, photographs or microfilm copies of works) for research and study by a user, or for a user at another library or archives, or for incorporation into the collection of another library or archives. When the Digital Agenda reforms are implemented libraries and archives will be able to supply "reproductions" - in legal terminology a broader categorisation than "copies", which permits supplying digitised reproductions of works to users, libraries or archives, for example.

Definition of "archives"

"Archives" are defined in the current Act as either certain specified institutions, (basically some of the public records authorities) or as "a collection of documents or other material of historical significance or public interest that is in the custody of, and being maintained by, a body for the purpose of conserving and preserving them". Currently the "archives" also has to be a not for profit archives. Few museums or galleries are currently aware of the applicability of this broad definition of "archives" to their own collections. The Digital Agenda amendments will make explicit that libraries galleries, museums and archives are all covered by the library and archives exceptions.

Current technology specific references to preservation in the Copyright Act, which permit the making of "a microfilm copy" by a library or archives, will also be made technology neutral allowing cultural institutions to use new technologies to manage and preserve materials in their collections, without requiring the permission of copyright holders.

The end of the 50/75 rule

The Digital Agenda amendments also change the rule for copying unpublished works in archives whereby such works may only be copied seventy five years after creation and fifty years after the death of the author. Soon it will merely be the standard fifty years after the author’s death rule - unless Australia harmonises its term of copyright protection with that of the EU, Britain and the US, where copyright protection now lasts for seventy years and works formerly in the public domain, like those by Virgina Woolf who died more than fifty years ago, are once again in copyright, for an extended period.

‘Digital is different’

The Copyright Act must be one of our most frequently amended pieces of legislation and it is rare for a year to pass without it being altered. There were some thirty amendments between its first passage in 1968 and 1996; two amendments in the current Government's first term; in 1998 it was amended twice and two major amendments, the Digital Agenda reforms and the introduction of moral rights, are expected in the current parliamentary session. Yet perhaps no proposed reforms have caused such an outcry from owners as the Digital Agenda amendments. ‘Digital is different’ is their catchphrase.

The library exceptions were not in dispute when fair dealing meant expensive and necessarily limited self-service photocopying; document supply was limited to posting of photocopies and when copies had to be made from an original to guarantee an adequate quality copy. But the potential for digital copies of works which can be copied without degradation, at the touch of a key, and rapidly transmitted to multiple users, or downloaded in their entirety, has led to a vigorous lobbying campaign by copyright owners, including authors and artists, but notably by those higher up the food chain, such as publishers and media companies.

Public interest advocacy

Libraries have mounted an equally vigorous lobbying campaign through the cross sectoral Australian Libraries Copyright Committee (which includes representation from archives) and more recently by the establishment of the Australian Digital Alliance. The ADA is a broader coalition of organisations wishing to maintain the traditional balance between protecting the legitimate rights of owners and permitting reasonable public access to information. The ADA includes library and education sector members as well as other other cultural institutions but also consumer organisations, Internet service providers and industry stakeholders such as hardware and interoperability software interests. Described simply, library sector concerns are primarily about access and equity; ensuring that there is reasonable access to copyright material in library collections for users and by other libraries, on behalf of their users.

In the course of the debate about the Digital Agenda some outrageous claims have been made by owners’ representatives alleging that the amendments will enable libraries to "hack into" publisher databases to obtain a copy of a work and thereafter distribute it freely to users and other libraries under the library exceptions, thus eliminating the market for publishers. Despite such claims the Government has consistently stated that the policy intent behind the amendments is to create a balanced, workable and up-to-date intellectual property regime, which encourages creators and investors while at the same time ensures that users gain appropriate access to copyright material; in addition, a regime that acknowledges the fundamental impact that changes in communications technology are having on the creation and transmission of copyright material.

Obviously libraries support this policy thrust - and while it may not seem so immediately applicable to archives I believe there are also important implications for the users of archives. At the same time it must be said that libraries still have reservations about some features of the Digital Agenda exposure draft bill, which are seen as eroding some of the rights users and libraries have traditionally enjoyed.

Copyright Law Review Committee Simplification Reference

The next major reform initiative that I want to discuss briefly is the recently concluded work of the Copyright Law Review Committee (CLRC), an expert panel under the chairmanship of Professor Dennis Pearce, which has reported to the Attorney General on Simplification of the Copyright Act. The CLRC Simplification report is in two parts. Part 1 deals with exceptions to the exclusive rights of owners and Part 2 with categorisation of subject matter protected by copyright and the nature of the exclusive rights of owners.

It is not easy to be brief and clear about such a technically complex issue as copyright law reform. Copyright owners currently have the exclusive right to control publication, performance, broadcast, adaptation and reproduction of their works but under certain specified conditions, exceptions are permitted to these exclusive rights for purposes such as limited copying for for research and study, reporting the news, criticism and review, and providing legal advice. These provisions are generally known as the ‘fair dealing’ exceptions. Certain purposes of libraries and archives, such as supplying copies for research at another institution and making copies for preservation, are also outside the scope of owners' control and therefore not subject to a payment to owners. At present these exceptions to the exclusive rights of owners are set out in considerable detail in the Copyright Act.

An open ended system

Part 1 of the CLRC report suggests we move away from this prescriptive and detailed approach and instead adopt an open ended system, similar to the US provisions known as ‘fair use’. If this proposal became law, instead of specifying in what circumstances and in what form certain quantities of copying could be done, users would decide whether copying was fair according to long standing principles, namely:

and most importantly,

it is gratifying that despite a determined campaign by owners' interests, the Part 1 report explicitly recognises the public interest in allowing the free flow of knowledge, ideas and information and maintaining a broad balance between competing goals in amended copyright legislation

Among other significant specific recommendations in the report CLRC has recommended that if a dealing would be fair if done by a user, it should also be fair if done on behalf of a user, by staff in a library or archives and that, in all instances where users would be permitted to make a copy themselves, libraries and archives should be able to perform the same copying for users. And that where a library or archives copies on behalf of a user, the user's purpose should be regarded as the relevant purpose for determining the fairness of the dealing

CLRC has recommended that the present requirement for signed declarations by users be removed and that Section 50 copying by libraries and archives for other libraries and archives be repealed and instead considered under the broad fair dealing principles.

All in all there are 117 recommendations in Part 1, which was published in September 1998 and was generally commended by libraries. One prominent owners' representative however probably spoke for many when he described it as "bucket loads of extinguishment".

Creations and productions

If Part 1 was considered controversial by owners I think Part 2, released in February 1999, is even more radical. It considers the categorisation of works protected by copyright: currently literary, dramatic and musical works; artistic works, sound recordings; cinematograph films; broadcasts and published editions. It suggests instead that these multiplicities be replaced by two categories of protected subject matter: "creations" and "productions" Whether a work is a creation or a production would depend on the level of intellectual effort expended by the person who creates the material - called the ‘innovation threshold’. Different levels of protection would apply to these two categories, works which are creations being protected at a higher level than productions.

And there's more! The current exclusive rights of owners, namely reproduction, publication, performance in public, adaptation, broadcast, etc., would be replaced by two rights: the right of reproduction and the right of dissemination to the public.

Economic rights would apply to creations and productions. Moral rights would only apply to creations.

Implications for archives

I can't pretend to fully understand all the implications of this fundamentally new approach to copyright. However, it does seem to me that it may be advantageous for archives and their users if the innovation threshold were to apply to works in our collections. Consider: at present, my appointment diary or scribbled shopping list is offered the same copyright protection as the works of Patrick White or Elizabeth Jolley. Later in this presentation I will be making some utterings possibly considered heretical. If I were be smote down at the end of this session my appointment diary, if it came into the collection of a library or archives, could not be currently published before 1 January 2075 without the permission of the copyright owner, presumably my residuary legatee. Believe me, the appointment diary has no economic value to anyone, nor much evidential value either. But I digress.

Some other specific recommendations of interest to libraries and archives among the twenty seven in Part 2 include a recommendation that the National Film & Sound Archive (now Screen Sound Australia) be a depository institution under the Commonwealth legal deposit provisions and that the definition of "library material" covered by these provisions should include audiovisual materials and materials in electronic form. Another recommends removal of the requirement that a library or archives be not for profit in order to benefit from the library and archives exceptions. One disappointing feature is the recommendation that no amendments be made to establish a mechanism for the use of copyright material where the copyright owner is unknown or untraceable - material which is to be found in vast quantities, particularly in collecting archives.

The Government has not yet called for responses to the CLRC report - presumably this will happen once the Digital Agenda amendments are enacted. Given the reaction of copyright owners to the much more limited reforms proposed under the Digital Agenda we might predict that there will be a considerable opposition from owners when the time comes to comment on the CLRC Simplification report.There will also be a great deal of work required by archivists, librarians, museum professionals and others concerned with the rights of users to understand the implications of such a fundamentally different approach to copyright.

I have a dream

That concludes my brief update on current copyright law reform issues. So what are the implications for archives? I think it's not unfair to say that to date archivists have largely seen copyright law reform advocacy as being the business of librarians, but I can forsee quite a different world for archivists and users of archives when the Digital Agenda reforms are enacted and if the CLRC recommendations are embodied in future legislation.

Let me remind you, Australia is one of the world's most wired societies, with the latest ABS statistics revealing that 7.5 million Australians report using a computer, 76% of them "frequently". 42% of homes now have a PC and 13% of households have Internet access. A quarter of the households with a PC but no Internet access report an intention to obtain home Internet access in the next twelve months. For those without home Internet access let’s not forget all the access available from public libraries, schools, regional telecentres, as well as workplaces all contributing to the 238% increase in Internet activities reported by the ABS in the last two years.

Anyone who has anything to do with young people or students will know how much they expect by way of instantaneous access to information resources on the Internet. And it's not just the young. I bet there are a lot of people at this conference who regularly buy books and CDs and make travel bookings on the net. ‘Disintermediation’ is already threatening long standing conventional industries such as travel agents and insurance sellers. As it becomes commonplace for more and more archives to make their finding aids web accessible there will be an expectation of disintermediation from users, I believe. Our clients will expect that the Internet is used not just for access to electronic glossy information leaflets, giving addresses and opening hours on institutional websites; resource discovery at the catalogue or finding aid level and email communication enabling them to ask if we will accept their credentials as users. Net savvy users will expect delivery of electronic copies of archival records to their schools, homes and offices, to public libraries and other cultural and community centres.

And very soon the Australian Copyright Act will present no barriers to this expectation. Under the Digital Agenda reforms, expected to be introduced to Parliament in August 1999, if the provisions of the exposure draft bill are maintained, as we expect, libraries and archives will be able to able to use the Internet to deliver material to users in other libraries and archives under the Section 51(a) 1 provisions which currently allow the supply of "a copy" of unpublished manuscript material from their collections for research being carried out at another library or archives. This is one of the least restrictive exceptions within the current Copyright Act, except that at present the "copy" can only be a photocopy, photograph or microfilm, not a digital reproduction. Presumably the lack of restriction reflects the traditional difficulty and expense of producing a copy of manuscript material.

I have worked in collecting archives for twenty years, and I have often had to be the intermediary between users' reasonable desires to have copies of archival materials for their research and the obstacles imposed by the Copyright Act, particularly its limits on what could be copied by a staff member for a user. My work in the State Libraries of South Australia and New South Wales providing support to public libraries hundreds of kilometres from capital cities and facing the terrible problems confronting rural Australian communities has reinforced my commitment to access and equity. Why should someone in Gilgandra not have the same ease of access to original materials about the Cooee marches held in the Mitchell Library as someone lucky enough to live in Balmain, or Bondi?

The archival material that is currently web accessible such as the 10,000 pages which make up the Banks archive at the State Library of NSW and the 20,000 pictures available as part of the National Library's IMAGES1 service receive phenomenal visitation. But how much better will it be when instead of only being able to have access to long out of copyright material we have put up for them - this tip of the archival iceberg - users, wherever they may be located, can search electronic finding aids and request the material they want for their research and study, have it scanned and transmitted to their nearest library, museum or archives, quickly and relatively cheaply.

The situation I am describing is, I believe, just around the corner. I think it offers a great future for archives, archivists and above all for our users. I hope some of you are equally excited about the possibilities copyright law reform offers for the development of archival services.

Margy Burn
Assistant Director-General, Australian Collections & Reader Services
National Library of Australia
mburn@nla.gov.au

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