Digital Copyright Issue/
Nick Smith
Copyright Advisor, Australian Libraries Copyright Committee
A MARATHON
The House of Representatives passed the Digital Copyright Amendment (Digital
Agenda) Billl999 (Cth) on 28 June 2000 2 The Digital Agenda Bill is the largest
and most comprehensive piece of copyright legislation since the current Act was
enacted in 1968 It is designed not only to bring our copyright regime up to date
with new technologies but also to be sufficiently neutral in its terms that
technology will not scoot out too far in advance of the law again . Well, that's the
hope anyway.
In marathon terms, the Digital Agenda Bill has just entered the stadium and has
got a couple more laps to go before reaching the finishing line . And sometimes it
does feel like a marathon - this legislation was first more or less suggested by the
Copyright Convergence Group (CCG) in 1994 The Government is still using the
'we're a world leader in copyright legislation' line but I am not sure that it is true
anymore There do seem to be a number of other countries yet to finalise their
digital copyright legislation so maybe there is something in it stilL
The Digital Agenda Bill has taken a long time Dare I suggest that this has been a
good thing? Copyright is usually quite complex and sometimes sickeningly
complex. You can't have a national conversation about copyright over a cup of tea
in an· afternoon In fact, I doubt that you can have a national conversation about
copyright at all Many people will be touched by this legislation because they use
libraries or because they or their family attend university, but they have no idea
about this Bill or what it does. So we have had a national conversation by proxy.
1
This is an edited version of a paper that was presented at the 3rd symposium of the Australian
Law Librarians' Group, Law Librarians' Sympmium 2000, Sydney, July 19-21
2
Editor's note: The Bill had been passed by both Houses on Ihmsday I 7 August 2000. At the time
of editing this paper, the Bill still awaited Royal Assent
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Copyright owner, user and communicator interests have been badgering the
Government for long enough now to ensure that all voices have been heard . The
result is more or less bipartisan agreement that the present Bill is the fairest
compromise that can be reached I say more or less because the Australian Labor
Party (ALP) introduced its own amendments to the Bill of which the Government
accepted 2 out of 3 - but more of that later
In their speeches to Parliament on the Bill, the Attorney General, Daryl Williams
and the Shadow Attorney General, Robert McClelland remarked on the process to
date The Attorney General said that the consultation process had been both
exhaustive and exhausting, 3while Mr McClelland said
This process started under the Labor government but, in fairness to this
government, canied through ongoing public consultation procedures
Ultimately, after the bill itself has been tabled, there has been further
consideration by a parliamentary committee When you have the
procedures tight, you are more likely to get the policy right 4
The result of this ongoing exhausting consultation is a better compromise between
the various interests
ACHIEVING 'BALANCE'
In its 1994 report the CCG mentioned such things as extending the library and
educational copying provisions to the digital environment, but only said that the
Government should examine such issues at some point These were seen as
secondary issues compared to the actual updating of the rights. In fairness to the
CCG, this was really outside its terms of reference And this, as much as anything,
is a sign of how far we have come. The first part of the CCG terms of reference
reads
The CCG is asked to consider, having regard to the fundamental changes
which are occurring in the manner in which copyright materials are being
used and the need to facilitate such uses while providing appropriate
3
4
Australia, House of Representatives 2000, Debate>, 27 June 2000, p 18377
Ibid , p. 18341
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protection for copyright owners and creating a positive environment for
the development of industry, and having regard to Australia's
international obligations.
5
What might strike you about that sentence (other than its length) is that the now
obligatory copyright mantra of balance is missing . Today you cannot hear
copyright policy mentioned by Government without the sacred balance being
invoked. The Shadow Attorney General put it in the following way
It is very important to properly protect that intellectual property Equally,
on the other hand, it is important to balance the ability of ordinary
Australians to access information so that they can develop skills The
interaction between the protection of intellectual prope!ly and providing
fair and appropriate access to the users of this material is a very difficult
balance 6
Of the twelve Members of Parliament who spoke on the Bill eleven of them
mentioned the importance of balance . It was left to Warren Snowdon from the
Northern Territory to assert that the Bill will
strip copyright owners of fundamental and exclusive rights under article
15(C) of the International Covenant on Economic, Social and Cultmal
Rights by allowing third patties [meaning libraries of course] to reproduce
and supply hardcopy copyright material in digital forms. 7
And even he was forced to mention balance, if only to suggest that it hasn't been
struck in this case
The notion of this vital balance between protection for copyright owners and
reasonable access for copyright users is now a monument on the Australian
copyright landscape And this is, I think, partly due to the Digital Agenda Bill's
5
Report of the Copyright Convergence Group 1994, Highways to Change, August, p. 2
Australia, House of Representatives 2000, Debates, 27 June 2000, p 18341
7
Ibid, p 18364
6
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long gestation period. Had the ALP's Bill been passed in 1996 it would have
delivered new technology-neutral rights for copyright owners but nothing for
users . (This is not to say that the ALP was doing a bad job, just that in 1996 there
had been much less thinking about digital copyright Their draft Bill was prepared
even before the WIPO Internet Treaties} Exceptions would have been discussed
as a separate issue later, allowing copyright owners the luxury of being able to do
nothing but oppose them Indeed, the beauty of the Digital Agenda Bill is that it
has something for everyone and therefore has universal support It is only the
content that we fight over.
THE FINER DETAILS
Definition of 'library'
It will be a relief to most to hear that the Government's new definition of 'library'
has been removed That definition would have seen libraries owned by bodiesconducted-for-profit (such as law firms) excluded from library exemptions. Such
libraries would not have been able to request material from public or university
libraries nor supply material to an interstate office of the same firm Not without
a licence anyway Similarly, such libraries would not have been able to use the
preservation exceptions The Government itself removed this definition following
the recommendation of the Andrews Committee.
8
However, this issue is still on
the Government's agenda and will be revisited in the not too distant future.
Technology-neutral terminology
The Bill contains the kind of technology-neutral rights that the CCG envisioned
in 1994 (although in somewhat different form) as well as the exceptions that it
recommended be discussed at a later stage
Digital copying
The Bill extends the library copymg prov!Slons to the digital environment
allowing libraries to communicate reasonable portions to users and other
libraries. The provisions have been altered a little in the transfer; digital copies
made from a print original by a library to satisfy a request must be destroyed after
they have been communicated to the requesting library For example, copies
8
http://www .aph. gov .aulhouse/comrnittee/laca/digitalagenda/contents.htm
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made in the National Library (NLA) using ARIEL to satisfy a request from the
University of Technology (UTS) must be destroyed after the transmission,
leaving the NLA with only its print original and the UTS with its new digital
copy
Electronic source material
Libraries will not be able to send even a reasonable portion to another library if
that reasonable portion is otherwise commercially available. They will however
be able to send such portions to users regardless of their commercial availability.
Circumvention devices
The Bill contains new provisions that make it illegal to manufacture, supply or
import circumvention devices designed to get past protections such as software
locks or password screens. This has led to concern that publishers will use these
devices to lock up knowledge making it impossible to make copies under 'fair
dealing' or library document supply provisions. Consequently the Government
inserted exceptions to these provisions, allowing circumvention devices to be
made or supplied in certain limited circumstances including the library and
preservation copying provisions, but excluding fair dealing
Many copyright owners have said that they do not like this form of lawful
circumvention But publishers who lock their material up are also engaged in an
act of circumvention, one that I suggest should be unlawful. The Copyright Act
1968 (Cth) goes into a great deal of detail about fair dealing and statutory
licences in order to achieve certain public policy goals such as the dissemination
of knowledge . It is not acceptable to circumvent this policy simply because it
suits the commercial interests of publishers
One of the ALP's amendments to the Bill was a provision that tightened the
requirements for the supply or acquisition of such a device . This is not good for
libraries but it could have been worse It is important that these provisions exist
as a countervailing pressure on publishers who might be tempted to abuse their
position, and as a last resort
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Artistic worh
Another ALP amendment modified the preservation copymg provisions with
respect to artistic works . The Bill would have allowed galleries and museums to
put preservation reproductions on kiosks for public display, provided that further
copies could not be made from these kiosks. The Bill, as amended, now permits
such display, which was designed to preserve the original, only when the original
has deteriorated or is unstable.
Senate reading
The third amendment by the ALP, a change to film directors' copyright, was
rejected by the Government and will be worked out in the Senate . With the
exception of this amendment, which does not affect libraries, the Bill is
seemingly bedded down and should hopefully pass easily through the Senate in
its current form
UNRESOLVED ISSUES
The Bill is a pretty good outcome for libraries but there are a number of issues
left umesolved by the Bill as well as issues that are lurking out there that were
beyond the scope of the Bill The definition of 'library' will surface again There
is also the question of contracts versus copyright The Bill tends to imply that it is
perfectly legal for contracts to override what the copyright law provides. It does
this by stating that some exceptions, the recent computer-programme
amendments, may not be excluded by contract This strongly implies that all
other exceptions may be excluded by contract This is not what the Government
intended but is a consequence of how the Bill has been drafted
The issue of copyright versus contract is only going to get bigger and bigger. It
may not be long before Australian copyright owners, particularly software
publishers, are clamouring for legislation based on the Uniform Computer
Information Transactions Act (UCITA) 9 It originated in the United States and
covers contracts that are generally known as shrink-wrap or click-wrap licences
9
http://www.infoworld.com/ucita/
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Finally, there rs an rssue that the Bill partially addressed, that of temporary
reproductions. The Bill makes it clear that temporary reproductions, such as
copies automatically made on your screen, in your hard drive or your RAM as part
of a communication are excepted from the copyright owners right An example of
this might be viewing material on tbe Web The copyright owner can control the
communication from tbe Website but not all the automatic reproductions that
come witb it However, in the case of an e-book, tbe temporary reproductions
made while reading such a publication are not part of a communication and are
therefore not covered by the exception . The result is that you may need a licence
to read an e-book, a very disturbing precedent in terms of our society's level of
access to knowledge
CONCLUSION
There are problems that will remain after the Bill has become law and will need to
be addressed along with otber continuing copyright reform issues such as the
simplification of copyright However, tbe idea of the pressing need for balance in
copyright between owners and users is now firmly entrenched in Australian
copyright jurisprudence. Hopefully this will serve the library sector well in future
copyright debates
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