Submission

Comments on Copyright Reform and the Digital Agenda: Proposed Transmission Right, Right of Making Available and Enforcement Measures

The National Library endorses the general thrust of the discussion paper, Copyright Reform and the Digital Agenda. The Library acknowledges the need to find a reasonable balance between the legitimate private remuneration rights of copyright owners and the public benefit derived from the free flow of information. Provided that fair dealing and other exceptions are retained, the legislative regime proposed by the discussion paper would, in the opinion of the Library, come close to striking the correct balance of rights and interests in the digital environment.

Libraries play a key role in supporting learning, research, recreational reading and the preservation of the nation's intellectual heritage. In order to perform this public interest role effectively, libraries require a legislative regime of intellectual property management which does not place unreasonable restrictions on the flow of information. Public libraries in Australia have always regarded themselves as agents of democratic empowerment through the provision of information to all members of the community, regardless of their ability to pay for such information. Commonwealth, State and Territory governments and major political parties of all persuasions have always strongly supported this broad principle.

In the opinion of the National Library the current copyright legislation enables libraries to fulfil this role with respect to traditional library materials, while at the same time protecting the remuneration rights of copyright owners. Notwithstanding the new challenges posed by the emergence of digital information networks, the Library is confident that it is possible to devise changes to the copyright laws in respect of digital information which satisfy the legitimate needs of both library users and copyright owners.

The emergence of digital information networks is bringing about significant transformations in library service paradigms. Most importantly, libraries are experiencing a shift of emphasis away from traditional collection building towards the provision of electronic access to information. Correspondingly, libraries are placing greater emphasis on off-site services to remote users using telecommunications networks. For example, higher education libraries are being required to provide greater levels of support for distance education initiatives. State and national libraries are also expanding their information delivery services for remote users.

Browsing/Reading versus copying

With this scenario in mind, the Library would like to see the emergence of a digital copyright regime which is based upon a recognition of the fundamental distinction between reading/browsing on the one hand and copying on the other. The Library's view is that, while copying (other than fair dealing and temporary/incidental copying) of copyrighted digital information should be subject to remuneration charges, the reading of the same material provided to library users by libraries should, as far as possible, come at no charge to those users.

Clearly, there are two conflicting principles which need to be balanced in any digital copyright regime. These principles are, on the one hand, the need for readers to have ready access to information regardless of their ability to pay and, on the other, the right to remuneration in order to ensure a viable market for digital publishing.

The Library welcomes the discussion paper's acknowledgment of the importance of not restricting the rights of readers to browse digital information. It is concerned, however, that restrictions on the making available of digital information which are implied in the paper (eg. paragraph 4.59) could have the opposite effect. The Library understands that it is technologically feasible to implement controls on and monitoring of remote copying and reading of digital library information. Given that the technology is available, the Library believes it imperative that its use guarantee digital copyright regimes which strike a fair balance between the conflicting principles. The discussion paper is unclear on how to achieve this balance in law. For its part, the Library would argue strongly in favour of some form of continued exemption for libraries to make available information in digital form both to on-site and off-site users. Because the emergence of digital information networks raises difficult questions concerning the balancing of competing interests, a resolution of these differences will require discussions between the interested parties in order to reach mutual agreement on a a balanced copyright regime.

The following comments relate specifically to the issues concerning exceptions raised in the discussion paper.

2.8 Should the Copyright Act be amended to exclude from the right of reproduction certain temporary and incidental copies made in the course of the technical process of transmission? What should be the scope of such an exception for temporary copies? In particular, what kinds of safeguards could be included in such an exception to protect the rights of copyright owners?

The National Library of Australia advocates the amendment of the Copyright Act to exclude from the right of reproduction certain temporary and incidental copies made in the course of the technical process of transmission. In the digital environment, it is not possible to view a document file or image without creating a temporary or ephemeral reproduction in RAM or other non-permanent form of computer memory. Such reproductions are erased when a personal computer is switched off and only copied if a user actively directs them to be permanently retained.

The National Library has always argued that copies of this nature which pose no threat to copyright owners should not give rise to infringement. It is important that, in the digital environment as in the print environment, the right of the public to "browse" copyrighted material in order to make an informed decision on its possible use or purchase, should be protected. If such automatically generated images were to be considered true copies under the control of the copyright owner, the public's right to browse online would be precluded.

Libraries are places where people come to use copyrighted material. Protection for libraries against liability for authorising infringement is provided by section 39A of the Copyright Act which requires warning notices to be placed at copying machines available for public use. It should be possible to allow for a similar warning notice to be incorporated in screen displays at library computer terminals accessing electronic works.

2.9 Should the fair dealing provisions in the Copyright Act apply to the proposed new transmission right and right of making available to the public?

The National Library holds that the principle behind the fair dealing provisions of the Copyright Act remains valid regardless of the technology employed. That is, in order to promote the wider public interests of informed discussion and the diffusion of knowledge, non-infringing copying may be made in a limited number of defined circumstances. The onus remains with the user to prove non-infringement. We believe that these fair dealing provisions can apply because libraries are well positioned to provide an environment of controlled access to their collections, including electronic material. The library user is required to observe the relevant aspects of copyright law when using such material. We believe that the risk to copyright owners is not great given the broader social value of the purpose behind the fair dealing provisions.

The Library recognises that the question of what constitutes a 'reasonable portion' of a digital work for fair dealing purposes may need to be examined, given that the concept of unit of sale may well be applied differently in the digital environment.

2.10 Should the exceptions provisions for libraries and educational institutions apply to exempt them, in some circumstances, from liability for the exercise of the proposed new transmission right and right of making available to the public?

The exemptions provisions for libraries and educational institutions support the educational and research endeavours of their users. Library exemptions are primarily used for preservation purposes and limited interlibrary lending that is generally not a substitute for a purchase. Those libraries with long-term heritage preservation responsibilities use the exceptions provisions for carrying out their mandate to preserve and transmit material to future generations, and the need to perform this function is no less urgent in the digital environment; indeed, it has been argued that digital works are more at risk of disappearing. Libraries also need the right to transmit to users and other libraries some portion (e.g. abstract, preview or sample) in order to enable the library users to judge the relevance and usefulness of the work in question before paying for the complete version.

An increasing percentage of interlibrary loan traffic is being transmitted by facsimile and email means. This practice is currently permitted under the exemption provisions of the Copyright Act (sections 49 and 50). The National Library would not wish this exemption to be curtailed as a result of changes to the legislation introduced in response to the emergence of the digital agenda. The Library contends that the emergence of new technology does not alter the premise which underpins the current exemption provisions for interlibrary loans, to wit that there is an overriding public benefit derived from permitting the sharing of information resources within the library system. The Library would request that the interlibrary loan exemption provisions in sections 49 and 50 of the Act be amended to ensure that they expressly permit technology neutral means of supply and transmission.

Last updated April 1, 1998

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