Submission
Submission to the Copyright Law Review Committee on Reference to Review and Simplify the Copyright Act 1968
Executive Summary
The purpose of copyright is to promote the public welfare through the advancement of knowledge. As a statutory grant of a limited monopoly, copyright provides an incentive for creators by granting them exclusive rights to reproduce and distribute their work for a time. But these rights are subject to important limitations designed to ensure that the basic purpose of advancing knowledge and learning is not hindered. From its statutory beginnings, copyright has attempted to balance the rights of creators and those of publishers, with those of users.
The advent of electronic communications and new forms of technology has called into question the relevance and applicability of copyright legislation, causing a re-examination of the goals of copyright and intellectual property regimes in general. Copyright remains a law dealing with the control of information and knowledge, and however the revised legislation is framed, it must seek to preserve the balance of author / investor interests and users' rights.
Libraries play a role in promoting learning, culture and the free flow of ideas and information in society. They collect and preserve the documentary published heritage of the nation, provide access to their collections for research and study, and lend materials. To fulfil this role effectively, they require a copyright regime which recognises the need for access to copyright material, assists and encourages learning and scholarship, promotes the creative reuse of material, facilitates the preservation of the nation's published heritage, and is fair and flexible.
The National Library submits that any revision of the Copyright Act, 1968 should retain fair dealing provisions for libraries, extending these to cover all fair dealing purposes and all forms of publication. More effective provisions for the copying of unpublished works, and provisions giving greater scope to preserve library materials are required to enable the National Library to fulfil its access and preservation functions. The revised act should permit the usage of copyright material by the National Library where the owner cannot be located. It should redefine the terms "publication" and "maps". In considering the duration of copyright, consideration should be given to giving published and unpublished materials the same term of protection, and making all copyright terms shorter.
Recommendations
- That the principle of "fair dealing" should stand, and that fair dealing provisions be retained in the revised Copyright Act. (2.7.1)
- That under the revised act, copying of an unpublished work for research and study purposes in libraries be permitted if the copyright owner has not expressly prohibited such copying. (3.7.1)
- That under the revised act, the copying with a view to publication of unpublished anonymous and pseudonymous works be permitted. (3.7.2)
- That under the revised act, the copying with a view to publication of unpublished photographs and engravings as a single item be permitted. (3.7.3)
- That under the revised act, the making of sufficient copies of an unpublished work for preservation and display purposes be permitted. (3.7.4)
- That copying under the provisions for libraries be extended to cover all fair dealing purposes. (4.3.1)
- That libraries be permitted to copy and supply reasonable portions of films, multimedia, and sound recordings for users who request such material for research and study purposes. (4.3.2)
- That provisions governing declarations in the Act be standardised and formulated so as to include declarations made by electronic means. (4.3.3)
- That ss.49 and 50 of the Act be amended to ensure that libraries are able to make electronic copies (including electronic transmission of a copy stored in digital form and the loan of an electronic copy of a work on a carrier such as floppy disk) available to library users within the limits prescribed by these sections and subject to the payment of royalties where applicable, as now apply to the making of hard copies. (4.4.4)
- That under the revised act, libraries be permitted to reformat materials in their collections when necessary for preservation purposes. (5.3.1)
- That the wording of the revised act be framed to allow preservation copying without specifying the medium to be used. (5.3.2)
- That under the revised act, copying for preservation purposes be permitted without the requirement that a published work first suffer damage or deterioration, or be lost or stolen, and that there be no requirement that the original work be destroyed. (5.3.3)
- That fair dealing in the revised act apply to all works regardless of the form of publication used. (6.4.1)
- That the definition of "publication" in the revised Copyright Act be extended to include the concept of publication by transmission. (8.3.1)
- That the National Library be permitted to use copyright material where reasonable attempts to identify or locate the copyright owner have been unsuccessful, and where that use is for preservation and access purposes. (9.4.1)
- That Crown Copyright be abolished. (10.3.1)
- That maps be defined as literary works in the revised Copyright Act. (11.2.1)
- That for unpublished works the term of copyright protection be the same as that for published works. (12.3.1)
- That the term of copyright protection for published works be reduced. (12.3.2)
1. Preamble
1.1 The National Library of Australia ("the National Library") is a statutory authority which provides a range of library and information services to organisations and individuals throughout Australia. The Library's basic responsibilities under its act are to develop and maintain a national collection of library material, to make that material available to the Australian people, and to provide leadership and services to the Australian library community. Questions of copyright policy and its administration are of vital interest to the Library in its role of providing access to information.
1.2 If Australia is to develop into a successful, innovative and participative society, access to ideas, to knowledge and to information through reading and other means of access is essential. Government policy as outlined in Creative Nation aims to ensure that:
- innovation and ideas are perpetually encouraged;
- self-expression and creativity are encouraged;
- our heritage is preserved as more develops;
- all Australians have a chance to participate and receive - that we invigorate the national life and return its product to the people. [1]
To achieve these goals an environment which encourages research and study and enables a fair and equitable access to information needs to be created. In this process libraries play a valuable role by providing fair access to documentary cultural heritage material, and promoting the free flow of information.
1.3 It is the National Library's view that the basic purpose of copyright is to encourage creativity, learning and progress in society. This is achieved, on the one hand by rewarding authors and creators by giving them control of the use of their works for a limited time fixed by law, and on the other hand by allowing access to those works in order to meet society's need for the free exchange of ideas. Copyright law is a powerful and flexible means of ensuring that there is encouragement for education and research as well as incentives to authorship.
1.4 The Commonwealth Government's copyright policy recognises the need for a balance between:
- rewarding creative Australians;
- increasing investment by the copyright industries; and
- maintaining access to materials for all Australians. [2]
Modern copyright legislation seeks to strike a fair balance between the rights of creators and investors to receive remuneration for the use of their works and the needs of users to have reasonable access to those works. It is important that any reform of the copyright legislation succeed in maintaining that balance. Failure to do so would result in fundamental changes to the ownership and control of information in society, and would impoverish the nation intellectually.
1.5 The emergence of new information technologies, including digitised information is profoundly affecting the dissemination of ideas and information, and changing long-established patterns of publishing. The ability to reproduce and distribute material in the electronic environment is unprecedented. We are entering an era of uncertainty, but also one of great opportunity and innovation. Copyright, with its twin purpose of protecting the intellectual property of authors, and promoting widespread access to useful information remains relevant and appropriate. Its principles are adequate to meet the needs of the electronic environment. There is, however, room for clarification in the application of the law.
1.6 This submission will address a number of issues relating to copyright in which the National Library has an interest. It is based on the following :
- Copyright serves the public good by stimulating learning and research and by encouraging creativity.
- Intellectual property rights and protections are independent of the form of publication or distribution.
- The copyright system should balance the rights of creators / owners and the rights of users.
- Fair dealing should continue to exist, regardless of the medium, whether print or electronic.
1.7 This submission will not address the issue of legal deposit as this topic is the subject of a separate joint submission by the National Library and the National Film and Sound Archive.
1.8 The National Library supports the ACLIS submission to the CLRC Review and Simplification of the Copyright Act, Copyright for all Australians. This submission addresses a wide range of issues which affect Australian libraries and their provision of information to the public. Many of the issues discussed in the ACLIS submission are also of relevance to the National Library.
2. Fair Use, Fair Dealing, Privileges of Libraries
CLRC Ref (3) Issues identified by the Copyright Convergence Group as requiring further urgent consideration and which are not the subject of current Federal Government processes ... and CLRC Ref (5) incidental matters arising from the examination of points (1) to (4) and which are able to be addressed by the Committee within the time specified for this reference
2.1 As a public institution charged with providing Australians with access to their documentary heritage, the National Library supports the legitimate right of the public to have access to copyright material. People have always had the right to expect that they may read, view or browse published copyright materials.
2.2 There are also economic advantages in enabling reasonable fair-dealing provisions, since in few cases, apart from works of pure fiction, is any work created or brought into existence without having built on the work of others. Too restrictive a process of fair-dealing type access is likely to inhibit the creative process by limiting access to ideas, and is likely to be to the long term disadvantage of the country as a whole.
2.3 Libraries including the National Library expect to be able to provide copyright materials, including electronic materials, to their individual users. Where libraries operate in a commercial for profit environment, as opposed to partial or full cost recovery, these exemptions should not apply. Australian libraries have for many years operated a system of interlibrary lending, whereby books may be lent by one library to another and copies of serial articles are supplied in accordance with copyright regulations. The basis of interlibrary lending has been fair dealing in the interests of research and scholarship for the general good of society. This principle should be maintained.
2.4 A large part of the National Library's service to its users around Australia involves the making of copies for and by researchers and students in the course of their work. The taking of notes and gathering of information is a fundamental part of authorship and scholarship, and it is essential for the continuation of this activity that fair dealing provisions for research and study be included in the revised act.
2.5 To take account of the new publishing technologies, the provisions for "fair dealing" need to be reshaped. At present they are rigid, hard to apply and difficult to interpret, particularly for materials other than books and journals. The National Library would prefer to see Australian legislation take a more flexible approach. A suitable model would be the United States legislation which lists a series of factors to be considered when determining what constitutes fair use. The purposes for which fair use may be invoked in the United States, for both published and unpublished materials, are those such as: criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, and research. The fairness of any dealing is determined by considerations including:
- the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- the nature of the copyrighted work;
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors. [3]
In the electronic environment, this means the ability to read and browse without paying individual transaction fees, in order to assess and evaluate information before deciding to select. The notion of metering all access and requiring payment for individual paragraphs or sentences from larger works is not desirable.
2.6 Guidelines will be required to assist those working with copyright, but it is the view of the National Library that the practical details would be better covered by copyright regulations or some other subordinate instruments, while the text of the Act states the doctrine of fair use.
2.7 The National Library recommends:
2.7.1 That the principle of "fair dealing" should stand, and that fair dealing provisions be retained in the revised Copyright Act.
3. Copying Issues, Especially Unpublished Works
Ref (3) Issues identified by the Copyright Convergence Group as requiring further urgent consideration and which are not the subject of current Federal Government processes ... whether (a) the special privileges provided to libraries and archives should be reconsidered, bearing in mind the changing role of these important institutions
3.1 The Copyright Act, 1968 treats unpublished material in a particularly restrictive manner. Within sections 51 and 52 of the present act there are several desirable areas of reform relating to the duration of copyright and the copying of unpublished materials.
3.2 For these materials the "no copying" period is extremely long: 50 years from the death of the author, and 75 years from the making of the work. The National Library regards this as unnecessarily prescriptive. The British Copyright Act, 1988 (Section 43) and the New Zealand Copyright Act, 1994 (Section 56) allow libraries and archives to copy unpublished works provided that copyright owners have not prohibited such copying. The copies can be supplied to persons for the purposes of research or private study.
3.3 Sections 51 and 52 are impossible to apply to anonymous and pseudonymous works, and there needs to be special provision made for these categories of works.
3.4 Section 52 deals with the procedure for copying unpublished works held in libraries "with a view to publication". Surprisingly, the legislation does not cover copying an unpublished photograph or engraving for publication as a single item. This has the effect of allowing publication of a photograph or engraving by incorporating it in a published literary, dramatic or musical work, but not alone (eg as a poster). Correction of this anomaly is desirable.
3.5 It is in the public interest to allow libraries to display unique unpublished materials as part of their role in allowing Australians access to their cultural heritage. Current provisions prevent libraries from displaying some heritage items. Due to fragility, rarity, or reasons of security, libraries and archives often do not wish to place original heritage materials on display, or cannot do so without damage to the item. As the act now stands, copying of unpublished works for display is not permitted. The sole exception is a preservation copy on microform, which is not a suitable substitute for the purposes of display. Where the original document is of heritage value, and where the copyright owner has not expressly prohibited copying, it should be permitted for the purposes of display.
3.6 Libraries want the adoption of legislation similar to that used in the United Kingdom or New Zealand which:
- permits the copying of unpublished works for purposes of research and study, provided the copyright owner has not prohibited such copying
- permits the publication of unpublished anonymous and pseudonymous works
- permits the publication of unpublished photographs and engravings as a single item
- permits the making of sufficient copies of an unpublished work for preservation and display.
3.7 The National Library recommends:
3.7.1 That under the revised act, copying of an unpublished work for research and study purposes in libraries be permitted if the copyright owner has not expressly prohibited such copying.
3.7.2 That under the revised act, the copying with a view to publication of unpublished anonymous and pseudonymous works be permitted.
3.7.3 That under the revised act, the copying with a view to publication of unpublished photographs and engravings as a single item be permitted.
3.7.4 That under the revised act, the making of sufficient copies of an unpublished work for preservation and display purposes be permitted.
4. Document Supply Services
Ref (3) Issues identified by the Copyright Convergence Group as requiring further urgent consideration and which are not the subject of current Federal Government processes ... whether (a) the special privileges provided to libraries and archives should be reconsidered, bearing in mind the changing role of these important institutions
4.1 Libraries provide access to information through document supply services, and this is recognised in the current act by provisions which allow libraries to copy and supply material to a user for research or study purposes (Section 49). They may also copy and supply material to another library for inclusion in its collection or for provision to a user for research or study purposes (Section 50), or copy and supply old unpublished material to a user for research purposes or with a view to publication (Sections 51, 110A).
4.2 The National Library has identified a number of matters relating to document supply which require review if libraries are to continue to provide this service in a changing technological environment. Firstly, copy and supply of material is limited to research and study purposes and cannot be supplied under other fair dealing conditions, eg for the purpose of giving legal advice. Secondly, there are no provisions allowing the copying and supply of reasonable portions of films, sound recordings or multimedia to users who request such material for study or research purposes. Thirdly, a written and signed declaration is required under Section 49. As much document supply is now carried out electronically eg by e-mail, all provisions dealing with declarations require broadening to permit transmission by modern communications technology. Finally, the National Library urges that the question of the legality of ephemeral copies and transmission be resolved. We strongly endorse the recommendation of the CLCR report on Computer Software Protection:
"that ss.49 and 50 of the Act be amended to ensure that libraries are able to make electronic copies (including electronic transmission of a copy stored in digital form and the loan of an electronic copy of a work on a carrier such as floppy disk) available to library users within the limits prescribed by these sections and subject to the payment of royalties where applicable, as now apply to the making of hard copies." [4]
4.3 The National Library recommends:
4.3.1 That copying under the provisions for libraries be extended to cover all fair dealing purposes.
4.3.2 That libraries be permitted to copy and supply reasonable portions of films, multimedia, and sound recordings for users who request such material for research and study purposes.
4.3.3 That provisions governing declarations in the Act be standardised and formulated so as to include declarations made by electronic means.
4.4.4 That ss.49 and 50 of the Act be amended to ensure that libraries are able to make electronic copies (including electronic transmission of a copy stored in digital form and the loan of an electronic copy of a work on a carrier such as floppy disk) available to library users within the limits prescribed by these sections and subject to the payment of royalties where applicable, as now apply to the making of hard copies.
5. Preservation Issues
Ref (3) Issues identified by the Copyright Convergence Group as requiring further urgent consideration and which are not the subject of current Federal Government processes ... whether (a) the special privileges provided to libraries and archives should be reconsidered, bearing in mind the changing role of these important institutions
5.1 Libraries such as the National Library with large holdings of printed materials on paper manufactured during the last 150 years are facing a preservation crisis as the paper becomes brittle with age. Although microfilm is still the medium of choice for preservation, it is apparent that technology is moving swiftly towards a future where preservation will be carried out electronically. The law should be amended to accommodate the newest, and all future preservation technologies in a technology-neutral manner.
5.2 Information in digital forms is volatile and non-durable. Just as works on paper need to be preserved, so too with digitally created works of enduring value. Experience leads us to believe that electronic publishers, like print publishers, will not keep a particular work beyond the time when there is an economic incentive to do so. The responsibility for preserving this part of our intellectual heritage will be assumed by non-commercial organisations, and in particular libraries. The life expectancy of most works in digital format is estimated at only 15 to 20 years - much shorter than that of paper. For digital works, whether on-line, on tape or on CD, preservation takes the form of "refreshing" or copying the work onto a duplicate of the medium, or even moving it onto another medium as technology advances. If the National Library is to collect and preserve electronically networked information, it needs to have the right to reformat and refresh that information for the purpose of preservation. Current legislation permits the making of copies for preservation purposes on paper and on microfilm but does not accommodate the newest preservation technologies.
5.3 The Copyright Act, 1968 contains a number of provisions designed to aid the preservation copying of original materials. These provisions need to be retained, and extended to cover published materials too. Libraries, such as the National Library, with a responsibility for the preservation of published documentary heritage material find that the current act can make it difficult to carry out their mandate for these materials. The provisions that allow libraries to make a copy of a work in published form are contained in section 51A of the Act. Under subsection 51A(1) the work must first suffer damage or deterioration, or have been lost or stolen before it can be copied. Under subsection 51A (2) a copy can only be made where the original is later destroyed. For preservation purposes a change is necessary to allow libraries to copy a work which is in published form, but which is rare, for the purpose of preserving it against loss or deterioration, without loss of the original. The introduction of technology-neutral phrases such as "a copy" rather than "a single microform copy" would address this difficulty. Accordingly, the National Library recommends:
5.3.1 That under the revised act, libraries be permitted to reformat materials in their collections when necessary for preservation purposes.
5.3.2 That the wording of the revised act be framed to allow preservation copying without specifying the medium to be used.
5.3.3 That under the revised act, copying for preservation purposes be permitted without the requirement that a published work first suffer damage or deterioration, or be lost or stolen, and that there be no requirement that the original work be destroyed.
6. Digitisation and Access
Ref (3) Issues identified by the Copyright Convergence Group as requiring further urgent consideration and which are not the subject of current Federal Government processes ... whether (a) the special privileges provided to libraries and archives should be reconsidered, bearing in mind the changing role of these important institutions
6.1 The National Library's view is that copyright law can and will be extended to the electronic environment. It is likely that new technologies which have created problems for existing intellectual property laws have also the capacity to provide solutions to these problems.
6.2 The National Library has a keen interest in digitisation and associated copyright issues. In common with many libraries and museums it is considering improving access to information through the digitisation of items in its collections. This is a logical extension of the National Library's role of providing access to information. To maximise the value of digitisation projects, material in copyright as well as material out of copyright must be included.
6.3 The National Library considers that the concept of fair use exemptions of the copyright law should apply in the case of digitised materials, and that satisfactory solutions to abuses such as on-copying of digitised documents and images can be instituted. Safeguards can be used to protect the intellectual property of publishers and copyright owners from uncontrolled transmittal and copying. These include measures such as using only low resolution images, digital watermarks and other forms of protection.
6.4 We recommend:
6.4.1 That fair dealing in the revised act apply to all works regardless of the form of publication used.
7. Statutory Licences
CLCR Ref (3) Issues identified by the Copyright Convergence Group as requiring further urgent consideration and which are not the subject of current Federal Government processes ... whether (c) digital delivery and copying of copyright materials requires a reconsideration of the various statutory licensing schemes in the Act
7.1 The National Library views with regret a situation where rights holders might move towards licensing schemes for the use of their publications because of a perceived failure of copyright legislation to grant them adequate protection. For libraries, the oversight of a multiplicity of different licence arrangements is a cumbersome administrative burden, increasing costs and inhibiting access. Even the use of collective licensing agreements through copyright collecting societies would be difficult for libraries, as not all rights owners choose to belong to collecting societies. The National Library regards the continuation of the fair dealing provisions for libraries as the best course of action, and preferable to a licensing regime. If licences are to be used, a statutory licence would be the only effective way for a library to operate lending services, including electronic document supply.
8. Concept of "publication"
CLCR Ref (3) Issues identified by the Copyright Convergence Group as requiring further urgent consideration and which are not the subject of current Federal Government processes ... whether (g) there is a need to amend the definition of 'publication" in section 29 of the Act
8.1 The Copyright Convergence Group drew attention to the need to redefine the term "publication" in any revision of the Copyright Act, 1968. Their report specifically mentioned the case of sound recordings available to the public by digital delivery, and WIPO discussions suggesting the extension of the definition of publication to include making material available to the public by electronic means.
8.2 The National Library considers that the definition should be extended. Much publishing that was previously print-based is now being delivered by electronic means, and there is little doubt that much of this material is an important component of the nation's cultural and intellectual heritage. It requires the same considerations for preservation and fair access as any other published material.
8.3 We recommend:
8.3.1 That the definition of "publication" in the revised Copyright Act be extended to include the concept of publication by transmission.
9. Untraceable Owners of Copyright
CLCR Ref (3) Issues identified by the Copyright Convergence Group as requiring further urgent consideration and which are not the subject of current Federal Government processes ... whether (i) there is a need to provide a mechanism for the use of copyright material where the copyright owner is unknown or cannot be traced
9.1 Practical problems have already been experienced by the National Library because the present act does not specify any system for the use of copyright materials where the owner of the copyright is unknown or untraceable. This situation may be expected to persist, and even to increase with the growth of electronic publishing and with the creation of digital libraries to store, archive and make resources available. It is already difficult for libraries to trace copyright owners. Multiplied by thousands of documents and photographs to be individually investigated, large digitisation projects become essentially impossible, thus depriving the public of valuable resources, even though most of the creators of the works in question would probably have willingly consented to the use of their work, if it was protected at all.
9.2 Libraries in general, and the National Library in particular, have no desire to deprive authors, publishers and other copyright owners of a just remuneration for their efforts. Indeed, libraries have established elaborate practices to ensure that appropriate copyright royalties are paid, and play no small role in publicising and bringing to public attention the existence of many works. In projects designed to preserve documentary materials, and in the creation of digital libraries and similar undertakings, copyright ought not to act as a barrier to these endeavours so valuable to education and learning, but should enable us to develop reasonable and practical solutions to see that the needs of users and owners are met.
9.3 The National Library would favour an outcome clarifying and easing the provision of access to these materials. If the National Library makes a reasonable attempt to locate the unknown owners of copyright, but is unsuccessful, it should be granted some legal protection for the inadvertent offending use of the material if such use is within the preservation and access functions of the National Library.
9.4 Accordingly we recommend:
9.4.1 That the National Library be permitted to use material where reasonable attempts to identify or locate the copyright owner have been unsuccessful, and where that use is for preservation and access purposes.
10. Crown Copyright
CLRC Ref (5) Incidental matters arising from the examination of points (1) to (4) and which are able to be addressed by the Committee within the time specified for this Reference
10.1 Access to government information, its use and ownership, is already a much discussed issue in the emerging electronic environment. The National Library holds the view that placing basic public information such as statistics, legal documents, health and welfare information, and other government information in the public domain should be adhered to as a principle. All Parliamentary materials, legislative material, and the vast bulk of other government information should be in the public domain for two reasons: first, that it has already been produced at public expense, and secondly that in an electronic environment the marginal cost of distribution of this information, unlike that for print, is tending towards zero. It is instructive to note that the publishing output of the United States government is not protected by copyright, and is freely available to its citizens, a situation which compares favourably with that in most other countries.
10.2 The National Library's position is that Crown Copyright for government data and information should be abolished. Removal of copyright protection for such materials is unlikely to affect government publishing output, and the resulting accessibility and availability of the material would be of public benefit. It is also highly unlikely that Crown Copyright can ever be strictly enforced without the establishment of cumbersome and costly administrative procedures. While value-added information emanating from government may generate appropriate revenues, every attempt should be made to assist affordable access.
10.3 The National Library recommends:
10.3.1 That Crown Copyright be abolished.
11. Maps as Literary or Artistic Works
CLRC Ref (5) Incidental matters arising from the examination of points (1) to (4) and which are able to be addressed by the Committee within the time specified for this Reference ... (1) Projectible Subject Matter (ii) how these categories should be described in the Act
11.1 If distinctions between literary and artistic works are to be maintained in future legislation, the National Library would recommend a re-examination of some of the definitions. Cartographic materials highlight an anomaly in the definitions used, with maps defined as artistic works since 1968 and consequently more restricted for purposes of fair dealing than maps published before 1st May 1969. Geospatial data is regarded as literary works, and subject to different fair dealing conditions. Aerial photographs (artistic works) and satellite images (literary works) are also treated differently, although they are similar in nature and purpose.
11.2 We recommend:
11.2.1 That maps be defined as literary works in the revised Copyright Act.
12. Term of Protection
CLRC Ref (5) Incidental matters arising from the examination of points (1) to (4) and which are able to be addressed by the Committee within the time specified for this Reference ... (2) Copyright Rights (ii) which rights should be granted to owners of copyright material
12.1 Moves to increase the term of copyright protection granted to owners of copyright, as is the position of the European Union where the standard term of protection is the life of the author plus 70 years, would not be supported by the National Library. We submit that this would have adverse consequences for the public interest. The purpose of copyright is dual: to advance learning as well as to recompense creators. The public domain is an integral part of the creative process and allows the public access to the fruits of an artist's labours after the expiry of the copyright term. This is particularly true for creators of works such as reference books, CD-ROMs, multimedia material, and documentary and educational films, all of which draw heavily on public domain material. Because the copyright regime exists to serve everyone, not just specialist interest groups, the National Library would regard any extension of the copyright term, and the consequent reduced access to a large portion of our common heritage, as detrimental to creativity and against the public benefit. For these reasons, we support a reduction in the duration of existing copyright terms.
12.2 In the case of unpublished works such as manuscripts there is a need to reduce the duration of copyright. Section 33(3) of the Copyright Act, 1968 states that copyright in unpublished works continues to subsist until 50 years after the works are first published. Most manuscripts are never published, and remain in perpetual copyright. When the British Copyright Act was amended in 1988, no distinction was made between published and unpublished works as far as the duration of copyright was concerned. Section 12 of the British act states that copyright in literary works expires 50 years after the death of the author. The New Zealand Copyright Act, 1994 adopts this approach. Unless Section 33(3) is amended and the duration of copyright made finite, it will be very difficult for libraries and archives to undertake any large-scale digitisation projects involving manuscripts.
12.3 The National Library recommends:
12.3.1 That for unpublished works the term of copyright protection be the same as that for published works.
12.3.2 That the term of copyright protection for published works be reduced.
13. Contact
13.1 The National Library of Australia would welcome the opportunity to discuss the issues raised in this submission with the Copyright Law Review Committee at any of its hearings or meetings during the course of the review.
13.2 In this submission the National Library places the highest priority on the issue of fair use (Sections 2 and 6), preservation issues (5), and crown copyright (10).
13.3 Permission is granted for the Copyright Law Review Committee Secretariat to make this submission available in digital form
13.4 The contact person for this submission is:
Mr Warren Horton, Director-General
National Library of
Australia
Canberra, ACT 2600
Telephone: 06 262 1262
Fax: 06 257
1703
E-mail: w.horton@nla.gov.au
