In December 2000 the National Library of Australia conducted an administrative audit of licence agreements for electronic titles available in its Reading Rooms (Attachment A, in hard copy). This survey of some 218 titles (a number of which are accessed from the same source) was undertaken with copyright law in mind revealed:
One of the objectives of the Copyright Amendment (Digital Agenda) Act 2000 was to extend the concept of fair dealing to the electronic environment. This should mean that readers are subject to broadly the same legal restrictions in their use of electronic as of print material. From the National Librarys survey (which should be regarded as indicative rather than authoritative, because of its administrative nature), it appears that restrictions of some sort which might be interpreted as limiting "fair dealing" use were imposed by contracts for 116 products altogether (53 % of the products surveyed), including material published in Australia and overseas. Such restrictions allow copyright owners greater control over their works than is envisaged by the Copyright Act, and prevent readers from legitimately downloading, printing or emailing material for the purposes of research or study under the fair dealing provisions of the Act.
The concern of copyright owners to protect their rights is understandable, given that technology now makes it easier for people to infringe those rights. The National Library is concerned, however, that in attempting to protect their rights, copyright owners are using licence agreements to contractually limit legitimate fair dealing rights of the public, rights that have been granted by statute in order to promote the free flow of ideas and the advance of knowledge. On top of that, many publishers are using technological means to enforce these contracts.
A particularly salient example of a situation where library users are subject to greater restrictions in the electronic environment that in the print world is that of Standards Australia, which charges commercial organisations a fee of $15,015 p.a. for online access to the full set of standards publications. Staff of subscribing organisations are able to download or print Standards. Libraries are similarly charged $15,015 p.a., but the licence agreement (Attachment B, in hard copy) prescribes that use of "the Software" is available "for their own internal purposes only": readers are effectively prevented from making any fair dealing useby printing or downloadingof the Standards subscribed touse that they could make (by means of photocopies) when paper subscriptions were held by libraries.
It is the National Librarys view that the prevalence of licence agreements is leading to increasing restrictions on the use of copyright electronic material.
Taking the term offline to refer to print material, the Library points out that simple use (i.e. reading or viewing) of print material is outside the scope of the Copyright Act, whereas any use of electronic material is subject to the terms of a licence agreement. Copying of print material is covered by the Copyright Act, whereas copying of electronic material is again subject to the terms of a licence agreementan agreement that may well impose conditions contrary to the concept of fair dealing in the Copyright Act.
The Library has signed no agreements governing the use of print material by readers, and therefore the vast majority of use by them, and more especially their copying from the Librarys print collections, is governed solely by the terms of the Copyright Act.
Copyright is at the best of times a complex area, but one in which most library users are aware of the basic principles, such as their right to copy limited amounts of copyright material. The overlay of licence agreements governing use and copying of electronic copyright material brings unnecessary additional complexity to this area, not only for users but also for administrators. More importantly, it means that the control of information in our democratic society is increasingly subject to contracts set by multinational companies rather than to the statutory standards set by the Parliament.
It is highly desirable that use of electronic resources be subject to the same standards as print resources, and that copyright law rather than a myriad of contracts should provide a standard framework for the use and copying of both print and electronic resources. Readers and administrators would then know where they stand in regard to intellectual property rights, and the complexity of managing multiple resources with multiple conditions would be considerably lessened.
(a) there are legal remedies other than those outlined above to protect against the use of agreements to override copyright exceptions granted under the Act; and
The National Library is not aware of any other legal remedies other than those outlined in the CLRC Issues Paper.
(b) the existing legal remedies provide adequate protection against the use of agreements to override copyright exceptions granted under the Act.
In our view, the current uncertainty as to whether copyright law exceptions apply in cases where a licence agreement has been signed shows that existing legal remedies are inadequate or non-existent. Fear of being the object of a test case is inhibiting legitimate fair dealing in copyright material where licence agreements impose conditions that override copyright exceptions.
The National Library believes that all copyright matters within Australia should be governed by Australian law. The obligation to adapt licence agreements to the Australian legal environment should fall to vendors in these situations, since they are in a position of power in relation to their customers, and in a better position to reinterpret their licences for Australian jurisdictions.
It is worth investigating the possibility of providing that where standard licence agreements offered by vendors provide that the agreement shall be governed by the law of a foreign jurisdiction, this shall be read as providing that the agreement is made under Australian law. If this does not occur, the free flow of information within Australia will become increasingly subject to contracts set by overseas companies and subject to foreign law, to the detriment of our democracy and our information economy.
The protection of intellectual property has been the sphere of copyright law for over three centuries, and during that period copyright has succeeded in providing a reasonable balance between the rights of copyright creators and society. The National Library recommends that steps be taken to ensure that this continues to be the case in the future, and specifically that the following objectives be sought:
As an example, the National Librarys "Deed for the Use of CD-ROMs & Other Electronic Materials Received by Voluntary Deposit"2 provides a model for access to electronic products that we see as a good basis for development of a standard Australian licence agreement, either by legislative means or through development of a cooperative policy framework. This section relates to the use of products:
4. Where the purpose of the User is
(a) research or study; and
(b) not commercial
use of the Products by means of downloading reasonable portions of the information contained in any of the Products (which does not include Software, provided subclause 7 is not breached) or derivatives thereof into
(c) printed form; or
(d) an electronic, magnetic, optical or similar form of storage is permitted.
For the purpose of this clause "reasonable portion" shall have the same meaning as it has in Section 10 (a) of the Copyright Act, 1968.
The Council of Australian State libraries, through its CASL Consortium, has developed a Statement of Principles Guiding Licence Negotiation (Attachment C), which we commend to the CLRC as a guide for developing a potential model licence agreement for Australian jurisdictions.
| 1. Definition of Users | 1.1 In order to
achieve its ultimate vision of providing access to all Australian residents to
a core set of electronic resources, the Consortium aims to negotiate the
broadest possible definition of 'User' consistent with a fair commercial return
to Vendors. It is necessary to differentiate between 'all users' and 'all
uses'. While access for all Australian residents is required, the purposes for
which the information can be used may be limited, providing the purposes are
consistent with paragraph 2.1. [Vendors please note: In the first 12 months of operation of the CASL Consortium (from Feb 2001), access is sought for walk-in users of the State, Territory and National Libraries only.] |
|---|---|
1.2 As a minimum, the
Members require
|
|
| 1.3 The Members do not
seek access for other organisations, eg, educational institutions and business,
except Public Libraries on whose behalf they are acting. [Vendors please note: Access is not sought for public libraries during the initial 12-month period.] |
|
| 2. Required rights for access and use | 2.1 Any Licence entered into by the Members must recognise and should not restrict or abrogate the rights of the Members or their User community permitted under Australian copyright law. |
| 2.2 In particular, Licences should permit use at a minimum as allowed under Australian copyright law, including downloading and printing for permitted purposes and unlimited viewing. | |
2.3 The Licence should
state clearly what access rights are being acquired by the Consortium.
|
|
| 2.4 As stated under clause 4.1, the Consortium requires perpetual access to electronic information to which it subscribes. | |
| 2.5 Perpetual access must be transferable should the Consortium wish to change Vendors | |
| 2.6 The Licence should include provision for compulsory transfer (novation or assignment) by the Vendor to any entity that takes over the business of the Vendor. | |
| 2.7 Licences should permit the transmission of copies of parts of electronic publications for the purpose of non-commercial document supply between a Member and a requesting library that is not a member of the Consortium. A part may be an article contained in a periodical publication or a reasonable portion of a work. Permitted methods for transmission should include electronic transmission, for example, Ariel. | |
| 3. Authentication | 3.1 Vendors should be flexible as to the mechanisms of authentication or validation of Users to suit the needs of Members. |
| 4. Archiving/ preservation | 4.1 The Consortium requires perpetual access to electronic information to which it has subscribed. A Licence should specify who has permanent archival responsibility for the Product and under what conditions the Consortium may access or refer Users to the archival copy. |
| 5. Ongoing support/ training | 5.1 Licences should specify the Product training packages and customer support services that will be provided. (The presence or absence of user friendly and effective help modules within a Product will be an important factor in determining selection of a Product.) |
| 6. Service levels | 6.1 The Licence should
specify the Product performance and service levels the Consortium can expect
from the Vendor and the Product, including technical interface and operation
requirements. (Note: performance and service levels are likely to be Product specific.) |
| 7. Monitoring/ user statistics | 7.1 Licences must guarantee the Consortium as a whole, as well as individual Members, the right and opportunity to measure use and to gather and exchange the relevant management information needed for collection development and Consortium purposes. |
7.2 A Vendor should be
willing to generate for the Consortium as a whole and for every participating
Member (including Public Libraries whose interests are being represented by a
Member or who are Members)
Alternatively, the Product must contain an administrative function enabling Members to generate easily their own statistics. |
|
| 7.3 The routine collection of data by either party to a Licence should be predicated upon disclosure of such collection activities to the other party and to other Members and must respect and comply with laws and institutional policies regarding confidentiality and privacy. | |
| 7.4 The Members must be allowed to share management information about the Vendor's Product and its usage. | |
| 7.5 Licences must not place liability on the Members for the misuse of content or the Product by the User. However, the Consortium will make reasonable efforts to prevent misuse or abuse by Users and will cooperate with Vendors to stop it should it occur. | |
| 8. Privacy | 8.1 Licences should ensure that privacy of individuals using the Product is protected. The Vendor must not collect or record information about individuals using the Product, share any information about individuals with a third party, or use such information for marketing purposes. |
| 9. Administrative arrangements | 9.1 All terms and
conditions should be negotiated and clearly stated in the Licence, including:
|
| 9.2 A Licence should not require the Consortium to adhere to unspecified terms in a separate agreement between the Vendor and a third party unless the terms are fully reiterated in the Licence between the Vendor and Members and are acceptable to the Consortium. | |
| 9.3 The Licence should provide that any changes to the Licence are subject to prior agreement by both parties. | |
| 9.4 A Licence should provide termination rights that are appropriate to each party. | |
| 9.5 Non-disclosure language should not preclude the Members from sharing pricing and other significant terms and conditions with other consortia. | |
| 9.6 A Licence should
require the Vendor to defend, indemnify, and hold the Members harmless from any
action based on a claim that use of the Product in accordance with the Licence
infringes any patent, copyright trade-mark, or trade secret of any third party.
The Licence should include a procedure for dealing with infringements. |
|
| 9.7 The Licence should include a warranty that the Vendor has the right to grant the Licence and that the Members' use of the resources contained in the Product will not infringe the Intellectual Property rights of any person. | |
| 9.8 The Licence should specify how and when updates to the Product will be provided and any fees associated with updates. | |
| 9.9 The governing law under which the Licence is made should be the law of the Australian Capital Territory or another Australian State or Territory. |
Online version: http://www.caslconsortium.org/about/licenceprinciples.html
1 The Pioneer Indexes were however the only ones to explicitly mention that they should be used according to the Copyright Act 1968.
2 http://www.nla.gov.au/policy/deed.html
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