1 Part II: New copyright for libraries and archives AL©C This publication is licensed under the...

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Part II:

New copyright for

libraries and archives

AL©C

This publication is licensed under the Creative Commons Attribution-NonCommercial-ShareAlike 2.5 Australia License. To view a copy of this license, visit http://creativecommons.org/licenses/by-nc-sa/2.5/au/ or send a letter to Creative Commons, 543 Howard Street, 5th Floor, San Francisco, California, 94105, USA

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Australian Libraries Copyright Committee

Laura Simes

Copyright Adviser

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Part II: Amendments to the Copyright Act 1968

Additional provisions relating to Technological Protection Measures (TPMs)

New Criminal Enforcement Regime New Consumer Exceptions New ‘Fair Dealing’ Exception Exceptions for libraries

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New Consumer Exceptions

(1) Time-shifting: s111

Allows individuals to record a television program or radio broadcast to watch/listen to later.

Only available to individuals for ‘private and domestic use’

Not available to organisations and institutions

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New Consumer Exceptions

(2) Format shifting: ss 43C, 47J, &110AA

Allows individuals to shift certain works that they own from one format to another. Once again, only available to individuals for ‘private and domestic use’ Only for certain groups of works and formats…

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Format shifting: ss 43C, 47J & 110AA

Books, newspapers and periodicals different format

Photograph hardcopy format electronic format

Analogue electronic

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(3) Space shifting s 109A

The “ipod” provision

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New ‘Fair Dealing’ Exception

‘Fair dealing’ exceptions that were available before the 2006 amendments are still in place.

No infringement where the use amounts to fair dealing for the purpose of :

Research or study (s 40); Criticism and review (s 41); Reporting the news (s 42) ; or Professional advice & judicial proceedings (s43).

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New ‘Fair Dealing’ Exception

Copyright Amendment Act 2006 introduced one more exception:

Fair dealing for the purpose of parody and satire (ss 41 and 103AA)

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Changes to existing exceptions

User requests & documents deliveryLibraries & archives can reproduce & communicate articles and works to users for ‘research & study’ (s49)

Libraries & archives can reproduce & communicate articles and works to another library for inclusion in their collection; or to supply a user under s 49. (s50)

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User requests &document deliveryDefinition of ‘library’

Before: library does not include a library that is conducted for the profit, direct or indirect, of an individual or individuals

Now: library means a library all or part of whose collection is accessible to members of the public directly or through interlibrary loans.

archives means an archives all or part of whose collection is accessible to members of the public

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User requests &document delivery

(2) “same subject matter”

Before: A library can only supply more than one article from the same periodical if they relate to the same subject matter.

Now: A library can only supply more than one article from the same periodical if it is for the same research or course of study.

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(3) The commercial availability test

Before:

If supplying a copy of more than a ‘reasonable portion’ of a work -

an authorised officer must first declare the whole or portion of the work cannot be obtained within a reasonable time at an ordinary commercial price.

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(3) The commercial availability test

Now: when the person requesting the copy

needs itwhether the work can be obtained in

electronic form within a reasonable time, at an ordinary commercial price

the time it would take to deliver the copy to the requesting person.

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SUMMARY OF CHANGES

New library definition

Same subject matter same research or course of study

Further guidance on test of “commercial availability”

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Changes to existing exceptions

Reproducing works for preservation purposes (s51A)

Before: To preserve manuscripts or original artistic works against loss, damage, or deterioration or to provide a copy for research at another library or archives* To replace a published work that has been damaged or deteriorated, lost or stolen* For ‘administrative purposes’

*Subject to the ‘commercial availability’ test

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(1) Now: Clarification of ‘administrative purposes’: means

purposes directly related to the care or control of the collection

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(2) Now: An institution may now make a reproduction of a published work even if a later edition of the work is commercially available (new s 51A(4))

Authorised officer must make a declaration stating: No new copy of the work can be obtained within a reasonable time at an ordinary commercial price Providing the reason for reproduction of that particular edition

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SUMMARY OF CHANGES

‘administrative purposes’

Preservation copy of earlier edition when late is available

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New exceptions

New preservation provisions for ‘key cultural institutions’ (ss51B, 110BA & 112AA)

Allows institutions to make up to 3 copies from the work for the purpose of preserving against loss or deterioration.

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New preservation provisions for ‘key cultural institutions’

Who can use this new exception?

1. Libraries and archives that have a legislative function of developing or maintaining a collection

2. Bodies prescribed by regulations

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Manuscripts First sound recording or unpublished recording First copy or unpublished copy of film

The institution may make 3 copies from the work for preservation purposes

An authorised officer needs to be satisfied the work is of historical or cultural significance to Australia.

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Original Artistic work Published work Published sound recording Published film Published edition

3 copies if authorized officer satisfied work is of historical or cultural significance to Australia.

ALSO – subject to commercial availability test (inc electronic availability)

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SUMMARY OF CHANGES & EFFECT

Currently only applies to institutions who develop/maintain a collection

Allows institution to make 3 preservation copies

For some works institution needs to check if a copy is commercially available (electronic included)

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New Exception

Flexible dealing provision: s 200AB

Purpose of 200AB is to “provide a flexible exception to enable copyright material to be used for certain socially useful purposes”

Intended to operate ‘like’ fair use

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New flexible dealing provision s 200AB

Who can use this exception?

Libraries & archives

Educational institutions

A person with a disability or a person or body on behalf of a person with a disability

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New flexible dealing provision s 200AB

When can libraries/archives use this exception?

1.Threshold requirements; and

2.The 3-step test

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No other exceptions apply

EXAMPLES:

Fair dealing exceptions Libraries and archives – eg a

preservation provision Educational institution – eg Part VA or

VB license

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Use by or on behalf of a body administering a library or archives

The institution can allow another person or body to act as agent for them

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Use for the purpose of maintaining or operating the library or archives

Includes providing a service of a kind usually provided by a library or archives.

Encompasses the internal administration of the library or archives AND providing services to users

A broad purpose test that includes the full ambit of usual library or archives activity.

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Use not partly for the purpose of obtaining commercial advantage or profit

The institution can still charge a cost recovery fee: s200AB(6A)

BUT

An eligible body should not be able to use this exception partly for the purpose of gaining an advantage, benefit or gain from being engaged in commerce

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The 3-step test

The use:

1. amounts to a special case

2. does not conflict with a normal exploitation

of the material

3. does not unreasonably prejudice the legitimate interests of the copyright holder.

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1. Use amounts to a “special case”

Questions to ask:

Is the use clearly defined and narrow in scope?

Can the circumstances of the use be confined to a special category?

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2. Use does not conflict with a normal exploitation the material

Questions to ask: How does copyright holder normally extract economic value? Does proposed use enter into competition with this use? Does the proposed use deprive the copyright holder of significant or tangible commercial gains? Consider whether the proposed use could with a certain degree of likelihood, acquire considerable economic or practical importance (in the future)

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3. Use does not unreasonably prejudice legitimate interests of copyright holder

Questions to ask: Is the use appropriate? (eg not making more copies than necessary) Has the creator been properly attributed (if possible)? If necessary, has access been restricted? (eg if used for administrative purposes, library or archives users would not need access)

SUMMARY: consider the purpose, and limit the use to a reasonable amount.

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Conflict with normal exploitation?

For maintenance or operation of the

institution?

Unreasonably prejudice the copyright owner?

Special case?

Partly for commercial advantage or profit?

s200AB applies

YES

YES

NO

Summary Table

For educational instruction?

YES

NO

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Technological Protection Measures (TPMs)

What is a TPM? A Technological ‘lock’ that prevents copying a work, or accessing a work.

EXAMPLES: software access codes, DVD region coding, copy-protection on DVDs

Before: Cannot commercially supply devices that

circumvent TPMs

Can circumvent TPMs preventing access(Sony v Stevens)

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Now: New category of access control TPM

Extends to locks that prevent access, and not just prevent copying (eg software encryption or passwords)

Cannot use or supply devices or services that circumvent access TPMs

Cannot circumvent access TPMs

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EXCEPTIONS: Where owner gives permission Region coding (DVDs, games) Interoperability with computer programs Circumvention by libraries & archives for certain purposes:

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Criminal Offences and Infringement Notices

3 tiers of offences

1.IndictableUp to 5 years imprisonment &/or $60,500-$93,500 fine

2.Summary Up to 2 years imprisonment and/or $13,200 fine

3.Strict LiabilityMaximum $6,600 fine, Infringement Notice scheme

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Criminal Offences and Infringement Notices

Some points to note with new offences…

Penalties are per infringement (a single case may involve a number of individual infringements)

Effect on libraries and archives?

Note offences under ss 49, 50

AGD recently released draft infringement notice guidelines for comment

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Summary of changes:

Format-shifting / time-shifting for individual consumers

‘Fair dealing’ exception for the purpose of parody & satire

Strengthening of TPM provisions 3 tier system of criminal offences,

infringement notice scheme

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Changes especially relevant to libraries and archives:

New ‘special case’ exception (s200AB) New definitions: ‘library’ ‘admin purposes,’

‘reasonable portion’ and ‘course of study’ (ss 49 and 50 library and fair dealing for research and study)

Amendment to existing preservation provision and new preservation exception

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Questions?

Laura Simes

Copyright AdviserAustralian Libraries’ Copyright Committee

Executive OfficerAustralian Digital Alliance

p: 02 6262 1273 | f: 02 6273 2545 | e: [email protected]

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