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The Fair Dealing Review and its importance for Australian libraries

In the context of the free trade agreement between Australia and the United States, and the recommendations of various Parliamentary inquiries recommending the adoption of a US style fair use exception to copyright infringement, the Australian Government in May initiated an inquiry into whether and how the current fair dealing exceptions in the Copyright Act 1968 ought to be extended.

The exceptions to copyright infringement are integral in maintaining a ‘balance’ between rights holders and ‘users’ of copyright material. The exceptions allow consumers, libraries and educational and cultural institutions, to make copies without seeking permission from rights holders, in certain circumstances where the public interest in allowing copying outweighs the public interest in upholding exclusive rights.

The Attorney-General’s Department initiated this review by releasing an issues paper that raised many interesting questions. Do the current exceptions effectively balance the interests of rights holders with those of users of copyright material? If not, what additional exceptions to copyright infringement should be incorporated into the Copyright Act of 1968? How should any additional exceptions be incorporated? Should a flexible ‘fair use’ style provision be incorporated into the Act? And what would be the benefit of this?

For libraries, this review also brought to the fore some important issues relating to institutional use of the fair dealing provisions. Libraries commonly rely on the ‘libraries and archives exceptions’, which are distinct from fair dealing and apply specifically to libraries and archives rather than users generally. However to what extent do these exceptions not sufficiently cover the functions of libraries and archives? To what extent are libraries and archives required, or indeed able, to rely on the fair dealing exceptions?

Fair dealing needs to be recognised as important not only for users to exercise, but for libraries and other institutions to be able to exercise on behalf of users for users. This seems logical. However, while the fair dealing exceptions enable users to copy works for fair dealing purposes, it is not clear whether they allow third parties, for example librarians, to copy works on behalf of users. This is an important point because in some respects the fair dealing exceptions are broader than the libraries and archives exceptions. For example, fair dealing enables copying for purposes of ‘criticism and review’ whereas under the libraries and archives exceptions, libraries can only copy on behalf of users for ‘research or study’ purposes.

One reason for the lack of clarity can be attributed to the case of De Garis v Neville Jeffress Pidler Pty Ltd(1990) 95 ALR 625 where it was held that it is the purpose of the person actually undertaking the dealing that should be examined to determine whether certain copying falls under fair dealing or not. According to this principle, if a librarian copies material on behalf of a user, it is the librarian’s purpose that is relevant in determining whether the copying falls under fair dealing. This seems illogical given that it is the user and not the librarian that is actually using the material. The CLRC Report on Simplification of the Copyright Act 1968 recommended that this position be addressed legislatively to clarify that the user’s purpose should be relevant in determining whether fair dealing applies. Institutions such as libraries effectively act as ‘agents’ for private citizens in conserving and facilitating access to the nation’s cultural heritage and resources, and copyright law should reflect this.

Other important issues for libraries that were raised by this review include the inadequacy of the current provisions relating to preservation and back-up copying of digital material, and the lack of guidance by the law in relation to orphaned works. With preservation copying, the current provisions only allow the copying of works held in manuscript form, or original artistic works. Limited ‘replacement’ copying provisions additionally allow copying of published material that has already deteriorated, been damaged, or stolen. These provisions do not account for the variety of works which different institutions hold, and draw an artificial and unwarranted distinction between different kinds of works for preservation purposes. They provide a disincentive to lending or making available for public access, rare or out-of-print works that may be in reasonable condition but cannot be replaced if they are lost, stolen or damaged. Expansion of the preservation exceptions would assist library functions and responsibilities in this area.

In summary; fair dealing and other copyright exceptions are fundamental to libraries. Libraries function to preserve and facilitate access to information on behalf of their patrons and for future generations. The current review provides an opportunity to amend the Copyright Act to reflect this.

For a detailed discussion of fair dealing and related issues important to libraries, please see the Australian Libraries Copyright Committee and the Australian Digital Alliance submissions at www.digital.org/alcc .

Sarah Waladan

Executive Officer of the Australian Digital Alliance (ADA) and Copyright Adviser (law and policy) for the Australian Libraries Copyright Committee (ALCC).