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ISSN 1039-3498 | no. 42 | December 1999


A balanced digital agenda
by Katherine Beard

The debate regarding copyright in the new digital environment reached its zenith recently with the introduction of the Copyright Amendment (Digital Agenda) Bill 1999. With this piece of legislation, the Government has introduced wide-ranging initiatives that aim to fulfil the objective of bringing the law into step with the ever-developing digital world.

A controversial piece of legislation, the Digital Agenda Bill has provoked strong comments from maany organisations along the copyright owner and copyright user divide. In early November, all interested parties met at the House of Representatives Legal and Constitutional Affairs Committee Round Table Forums at Parliament House in Canberra and at the Wentworth Hotel, Sydney, to air their respective views. The committee, chaired by Kevin Andrews MP, is expected to return its report on 9 December 1999.

The Government is to be commended on its timely response to the issue of copyright in the digital environment. With a philosophy of moving the same balance of protection and freedom for copyright owners and copyright users into the digital environment that has existed in the print world, both the Australian Digital Alliance and Australian Libraries Copyright Committee hope that the Digital Agenda Bill will support both access and innovation in the new technological realm.

The question of balance is an important and topical one. How can copyright laws seek to achieve both protection and remuneration for creativity, and ensure access for innovation as well? The Digital Agenda Bill attempts to strike this balance; whether it does so is yet another matter for debate. It seems the Bill promotes ‘free-riding on the backs of authors and publishers’, as claimed recently in the media by Copyright Agency Limited. Apparently it also ‘cuts back the rights of creators or innovators in the digital environment’.

Whilst some would say that the Bill has gone too far in favour of copyright owners, others would say it has not gone far enough. In fact, and this is where the debate begins, creators will have far more control over their work in the digital world than they do currently and the Bill recognises this.

Even so, some copyright owner lobby groups would like to see the balance skewed even further. Instead of continuing into online copying of works the 10% quantitative test for fair dealing as currently in place, they would like to see a qualitative test of the value of the work instituted. This would mean that instead of being able to reasonably and quickly ascertain exactly what you could copy as a student or researcher, you would have to find out the market value of the work and what impact upon that value your copying would have. How this very subjective measurement can be made is yet another question. The impact on libraries and cultural institutions, universities and schools would be an enormous burden in terms of cost and administration. Speaking at the Ninth Biennial Copyright Law and Practice Symposium in early November, the Attorney–General, Daryl Williams, said that ‘it is neither appropriate or necessary for copying and communications by libraries and archives to be covered by either a voluntary or statutory licence … that would unreasonably impose significant cost burdens on the library sector without providing appreciable gains for creators’.

There is also the possibility that because of the higher threshold and less certainty, more infringement of copyright would occur as a result.

Copyright owners will have greater control of their work in the digital environment through the use of new technology. For instance, when a creative work is posted on the Internet or on a server, access can be prevented or limited by the copyright owner by contractual methods (e.g. shrinkwrap licenses) or technical protection measures, in addition to copyright. In effect, a copyright user will not be able to make even a fair dealing copy of the work—a legal and legitimate use—unless at the discretion of the individual copyright owner. The Digital Agenda Bill has banned the commercial availability of circumvention devices—technological devices that disable such protection measures. This blanket ban effectively renders previously legitimate actions, such as circumventing a protection measure for a fair dealing purpose, illegal, as a device would have to be made commercially available for the average person to get hold of it. Interestingly, after having taken an even harsher approach and banning the devices altogether, the United States Copyright Office is undertaking new investigations, due to conclude in March 2000. The aim is to discover cases where users are disadvantaged through lack of non-infringing access to a work because they are prohibited from circumventing protective technological measures. Is this the path that lies ahead for Australia—or can we get it right from the outset? The only answer is to ensure that circumvention devices are allowed for non-infringing purposes.

Another substantive area of concern from a copyright user and libraries perspective is the distinction drawn in the legislation between for-profit and not-for-profit libraries. The result of this demarcation line is that for-profit/corporate libraries will not be able to rely on the library provisions in the Act for exceptions to copyright infringement. There is also a question about the effect such a distinction will have on the operation of the inter-library loan system. Further, for-profit libraries would be unable to rely upon the preservation provision, begging the question of whether many historically and culturally valuable works currently in such collections will be lost as a result.

Yes, the digital environment is a whole ‘New World’. Yes, it has given us all pause to rethink the values and legal structures that shape our commercial, educational and social environments. And yes, perhaps our fundamental understandings of ownership and creativity have changed forever. But what has not changed—and never will—is the fact that creativity does not exist in a vacuum.

Katherine Beard

Innovation is born of innovation. Creators look to those who have gone before them to derive inspiration and fully realise the potential of their own dream or goal. To lock away works without providing any access to users, except through purchase of a digital key, slams a door in the face of artistry.

The balance between protection of works for copyright owners and access to these works for copyright users must be maintained in the digital environment. In a brave new world, the power of information as a generator of income streams must never overshadow the power of information to generate creativity and disseminate knowledge.

Katherine Beard recently replaced Annabelle Herd as Executive Officer for the Australian Digital Alliance and Copyright Adviser (Law and Policy) for the Australian Libraries Copyright Committee. She is a Bachelor of Arts, has an Honours degree in Law from the ANU and is the author of a book about the Miss Australia Quest, to be published in March. Katherine looks forward to the challenge of advocating on behalf of copyright users and libraries, and can be contacted on. 6262 1273, fax 6273 2545 or email kbeard@nla.gov.au.]


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