National Forum on
Accessible Tertiary Materials
Digital Agenda and Copyright Issues
Simon Cordina
Principal Legal Officer, Copyright Law Branch
Attorney-General's Department
UTS
Introduction
I would like to thank Bruce Maguire for inviting me to speak this afternoon in the pre-forum session on copyright and publishing.In this session I propose to cover a number of areas:
· firstly, provide an overview of the comprehensive amendments introduced by the Copyright Amendment (Digital Agenda) Act 2000;
· secondly, look at the operation of the provisions of the Copyright Act, as amended by the Digital Agenda Act, which enable access to copyright material by persons with print disabilities. In particular, this will include an examination of the statutory licence under Part VB of the Copyright Act for the reproduction and communication of copyright material by educational institutions and institutions assisting persons with disabilities. I will also cover the library and archives exceptions and fair dealing exception in so far as they are relevant. In doing so, I hope that I can assist in providing a better understanding of this complex area of copyright law; and
· finally, I will briefly describe the process of the Government's three year review of the Digital Agenda reforms.
To start off then we will take a look at the development of, and amendments introduced by, the Digital Agenda Act.
Development of Digital Agenda Act
As I am sure many of you are aware, after an extensive consultation process the Digital Agenda Act commenced on .
The Digital Agenda Act implemented major reforms to the Copyright Act 1968 in order to take into account rapid developments in communications technology, particularly the Internet. It would be fair to say that the reforms were the most comprehensive to be made since the enactment of the Copyright Act over 30 years ago.
The consultation process for the reforms included an invitation for submissions following both the release of a discussion paper on the reforms and an exposure draft of the legislation. I note that this included a submission from the Round Table on Information Access for People with Print Disabilities.
It also involved the holding of public forums and numerous meetings with copyright and other interests, and detailed consideration of the legislation by the House of Representatives Standing Committee on Legal and Constitutional Affairs (or LACA Committee).
As a result of this process the Government gained a good understanding of the various views and concerns of key copyright interests, and sought to balance these often competing interests.
The Digital Agenda Act is designed to ensure that the copyright law will continue to promote creative endeavour whilst allowing reasonable access to copyright material through new technologies. It forms a key component in the Government's commitment to encouraging the growth of the information economy.
The reforms were also designed to implement the main obligations of the World Intellectual Property Organisation or (WIPO) Copyright Treaty and Performances and Phonograms Treaty in relation to works, films and sound recordings. These Treaties are commonly known as the WIPO "Internet Treaties".
The adoption of the standards in the WIPO Treaties is a recognition of the borderless nature of the electronic environment. Such an environment makes it very important that the Australian law, and the law of other countries, are consistent with internationally agreed models for copyright.
participated actively in the work of WIPO to develop and adopt the WIPO Treaties which recently came into force this year. I note that has not yet acceded to the Treaties.
Content of Digital Agenda Act
I will give a brief description of the amendments introduced by the Digital Agenda Act.
There are 5 key elements - some have proven to be significantly more controversial then others. As would be expected, those areas which have proven to be the most controversial are where the boundaries between the rights of copyright owners and users are drawn, and where the focus on their differences in views is greatest. The key elements of the Digital Agenda reforms are:
1. the introduction of a new broadly-based exclusive right of communication to the public;
2. updating, and appropriately extending to the digital environment, the exceptions to the exclusive rights of copyright owners;
3. the introduction of new enforcement measures;
4. limiting and clarifying the liability of carriers and carriage service providers (including ISPs) for third party copyright infringements; and
5. the introduction of a statutory licence scheme for the retransmission of free-to-air broadcasts.
I will briefly go through each of these elements in turn.
Communication right
This has proven to be relatively non-controversial. The new communication right is designed to be broadly-based and technology neutral and extends to all copyright subject matter apart from published editions.
The right covers the making available online and the electronic transmission of copyright material, and subsumes the former technology-specific rights of broadcasting and transmission to subscribers to a diffusion service.
Updating and extending the exceptions
This has proven to be one of the most controversial areas of the reforms. The existence and scope of the various exceptions was the subject of debate between copyright owners and users throughout the development of the reforms.
The key areas for reform in relation to the exceptions are fair dealing, the exceptions for temporary reproductions and simulcasting, the exceptions for libraries and archives, and of course, the educational statutory licence scheme for the copying and communication of copyright material by educational institutions and institutions assisting persons with disabilities. I will talk on this aspect of the amendments in greater detail a little later in my session.
It should also be noted that the 'appropriate' extension of the exceptions to the exclusive rights of copyright owners into the digital environment is expressly recognised by the WIPO Internet treaties.
For example, Article 10 of the WCT states that contracting parties may provide exceptions to the rights of authors in certain special cases that do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the author.
An agreed statement in the WCT on this article provides that it is understood that contracting parties can carry forward and appropriately extend into the digital environment exceptions in their national laws (acceptable under the Berne Convention) and devise new exceptions that are appropriate to the digital network environment.
The Government believes that educational institutions and institutions assisting persons with disabilities should be able to use new technologies to provide reasonable access to copyright material. This formed the basis of the Government's extension of the Part VB statutory licence.
Enforcement measures
These form the third element of the Digital Agenda amendments and proved to be a hotly debated area. The Digital Agenda Act provided new enforcement regimes by introducing civil remedies and criminal sanctions against:
· the manufacture and supply of circumvention devices and services (sometimes referred to as "hacking devices");
· the alteration and removal of rights management information (such as digital watermarks containing information on the copyright owner and terms and conditions of use);
· and the manufacture, supply, and in some instances use (civil remedies only) of broadcast decoding devices (which allow for example, the unauthorised reception of Pay TV signals).
One of the main areas of debate was the operation of the "permitted purpose" exemptions to the criminal sanctions and civil remedies against the manufacture and supply of circumvention devices and services. These exemptions are designed to facilitate the operation of specific exceptions (such as the educational statutory licence under Part VB) identified in the Copyright Act.
The exemptions allow a person to manufacture or supply a circumvention device or service if the person receives a signed declaration that the device or service is to be used by a qualified person for a permitted purpose. A declaration must include certain specified information, including a statement that the copyright material the person wishes to access is not readily available in a form not protected by a technological protection measure. Penalties also apply for the making of false declarations.
The permitted purposes specified in the Digital Agenda Act are certain exceptions relating to the reproduction of computer programs, the library and archives exceptions, the use of copyright material for the services of the Crown, and activities covered by the statutory licences under Part VB for educational institutions and institutions assisting persons with disabilities.
Liability for carriers and ISPs
Very briefly, the fourth element of the Digital Agenda reforms clarify, and limit, the liability of carriers and ISPs for copyright infringements committed by third parties whilst using their facilities.
This was done through specifying, in terms of direct liability, that a communication is taken to be made only by the person responsible for determining the content of the communication.
The issue of authorisation liability was also addressed through the codification of common law factors for a court to consider in determining whether authorisation has occurred, and through specifying that the mere provision of facilities by which an infringement is made will not in itself result in the authorisation of the infringement.
Retransmission statutory licence scheme
Finally, the last major element of the Digital Agenda reforms was the introduction of a new statutory licence scheme for the provision of remuneration to underlying copyright owners in retransmitted free-to-air broadcasts. The scheme applies to retransmitters such as pay TV operators but specifically excludes retransmissions via the Internet which still require the consent of copyright owners.
Provisions facilitating access to copyright material by persons with a print disability
Part VB Statutory Licence
Having provided an overview of the background and content of the Digital Agenda Act I can now move on to the second part of my speech, which is to examine the provisions of the Copyright Act, as amended by the Digital Agenda Act, which enable access to copyright materials by persons with print disabilities.
The main provisions in this regard relate to the statutory licence under Part VB for the copying and communication of copyright material by educational institutions and institutions assisting persons with disabilities. Under the statutory licence the basis for such copying and communication is the payment of equitable remuneration to the declared collecting society, which is Copyright Agency Limited. As I mentioned earlier, this is quite a complex area of the copyright law.
Before the Digital Agenda amendments, the statutory licence under Part VB only applied to copyright material in hardcopy or analog form. The Digital Agenda extended the statutory licence to allow educational institutions and institutions assisting persons with a disability to electronically copy and communicate material on the basis of the payment of equitable remuneration.
The amendments were drafted broadly for the purpose of enabling the legislation to encompass future technological developments.
The basic limits under the old scheme as to what amount of copyright material could be copied were extended to apply to the new scheme with some modifications so as to more appropriately apply to copyright material in electronic form.
These limits however are only relevant to the copying and communicating material under the general educational statutory licence. The components of the statutory licence (Divisions 3 & 4) which specifically apply to institutions assisting persons with disabilities do not have similar limitations, and allow the copying and communication of the whole of the relevant copyright material rather than only parts of it.
The statutory licence under Part VB is comprised of three components:
· the first is in relation to educational institutions;
· the second in relation to institutions assisting persons with a print disability; and
· the third in relation to institutions assisting persons with an intellectual disability.
Division 3
Obviously, the second component which applies to institutions assisting persons with a print disability is of most relevance to this session. This component is found under Division 3 of Part VB. I understand that does not currently charge a fee for copying under this component of the statutory licence.
As a result of the Digital Agenda amendments Division 3 has been extended so as to apply to the reproduction and communication of certain copyright material by institutions assisting persons with a print disability.
Section 10 of the Copyright Act provides that "an institution assisting persons with a print disability" means an educational institution or any other institution which has as its principal function, or one of its principal functions, the provision of literary and dramatic works to persons with a print disability and in relation to which a declaration under paragraph 10A(1)(c) of the Copyright Act is in force.
Section 10A(1)(c) provides that the Attorney-General may by notice in writing, published in the Gazette, declare an institution to be an institution assisting persons with a print disability.
Section 10 defines print disability to mean:
· a person without sight;
· a person whose sight is severely impaired
· a person who cannot hold or manipulate books or to focus or move his or her eyes; or
· a person with a perceptual disability.
The activities allowed under Division 3 of Part VB are as follows.
Section 135ZP allows institutions assisting persons with a print disability to make or communicate one or more sound recordings (such as a talking book version) of a literary or dramatic work. Such a recording could be in analog or digital form. If in digital form the provision allows it to be electronically transmitted or made available on-line to a person with a print disability.
The making or communication of such a recording can only be done if:
(a) the remuneration notice given by the institution to the collecting society () is in force;
(b) each record made or communicated is carried out solely for the purpose of use in the provision of assistance to persons with a print disability;
(c) the institution complies with the provisions relating to records notices, sampling notices and electronic use notices, which ever is relevant; I will discuss these notice requirements in more detail later.
(d) the person who makes the recording must be satisfied, after reasonable investigation, that no new recording of the work can be obtained within a reasonable time at an ordinary commercial price.
(e) where an analog copy of the recording is made it must be marked in accordance with the regulations.
Provided therefore that these criteria have been met a recording of a literary or dramatic work can be made.
Section 135ZP also allows an institution assisting persons with a print disability to undertake other activities subject to similar conditions.
These are the making of reproductions of literary and dramatic works in accessible formats in the form of one or more Braille versions, large print versions, photographic versions and electronic versions. Where electronic versions are concerned the statutory licence also provides for the communication (ie, the electronic transmission and making available on-line) of such versions to persons with a print disability.
The conditions which have to be met in order to be able to make and communicate such accessible formats are similar to the ones I described in relation to the making of sound recordings of a work.
Again, these are:
(a) the remuneration notice given by the institution to the collecting society () is in force;
(b) each reproduction made or communicated is carried out solely for the purpose of use in the provision of assistance to persons with a print disability;
(c) the institution complies with the provisions relating to records notices, sampling notices and electronic use notices, which ever is relevant; (d) the person who makes the reproduction must be satisfied, after reasonable investigation, that no new version in the form being copied can be obtained within a reasonable time at an ordinary commercial price.
For example, if a Braille version is to be made of a literary work the person making the copy must be satisfied that no new copy of a Braille version of the work can be obtained within a reasonable time at an ordinary commercial price.
(e) where a copy in hardcopy form is made the copy must be marked in accordance with the regulations.
Section 135ZN provides that the copyright in a published edition of a work (ie, its type set and layout) is not infringed by any copies made as part of the activities done under the statutory licence.
In will now briefly describe the provisions dealing with the relevant notice requirements which I flagged earlier.
There are three types of remuneration notices; record notices, sampling notices and electronic use notices.
Record notices and sampling notices apply to copies made in hardcopy or analog form, and electronic use notices only apply to digital copies and communications.
What type of notice used will depend on the remuneration notice system selected by the institution assisting persons with print disabilities. In relation to hardcopy and analog material an institution can chose either a records notice system or sampling system. As the names suggest, a records system is based on determining equitable remuneration by keeping records of each licensed copy made; and a sampling system is based on determining equitable remuneration using an agreed sampling process.
In relation to digital copies and communications of copyright material an electronic use notice must be given under a new electronic use system. This new system was introduced by the Digital Agenda amendments as a result of extending the statutory license to material in digital form. The key to the new scheme is flexibility based upon agreement between the institution and collecting society, and is less prescriptive than the older systems. As with the systems relating to sampling and records keeping, if the parties fail to agree on certain issues they will have recourse to the Copyright Tribunal.
Also, as with the older schemes, the new scheme does not attempt to prescribe what is equitable remuneration, where the boundaries of fair dealing lie, and what is an appropriate system for determining the amount of equitable remuneration.
It is also very important to note that the statutory licence under Part VB does not preclude a copyright owner and institution entering into a separate voluntary licence arrangement to allow the institution to copy or communicate copyright material without infringing copyright.
The Government is aware that there is some "tidying-up" needed in relation to provisions setting out the statutory licence and the regulations. For example, the regulations setting out marking of analog recordings and hardcopies are out of date as they state that the recording must be destroyed no later than 3 months after the recording has been made. The destruction requirement no longer applies as a result of amendments passed in 1998.
The Government is therefore aware of and examining such issues.
I hope this sheds some light on the operation of the statutory license which I understand Caroline Morgan from will discuss in more detail after my presentation.
Fair dealing
I will now go on to briefly describe other relevant exceptions which can be used to facilitate access to copyright material by persons with a print disability. This therefore brings me to fair dealing.
Under the Australian copyright law fair dealing allows the free copying and communication, and the exercise of other copyright owners' rights, for specific purposes.
These purposes are research and study, criticism and review, reporting the news, and judicial proceedings. Obviously research and study is of most relevance to this session.
What falls within the fair dealing exception for the purpose of research and study is generally determined on a case by case basis having regard to a number of factors including:
(a) the purpose and character of the dealing;
(b) the nature of the work;
(c) the possibility of obtaining the work within a reasonable time at an ordinary commercial price;
(d) the effect of the dealing upon the potential market for, or value of, the work; and
(e) the amount and substantiality of the part copied taken in relation to the whole of the work.
Generally speaking, where the copying is done for a commercial purpose it is unlikely to be found to be a fair dealing. Also, the copying of the whole of a work when a copy is commercially available in an accessible format would be likely to weigh against the finding of a fair dealing.
To provide greater certainty, the legislation provides that certain types of copying for the purpose of research and study will be been deemed to be fair dealings. These dealing are where only an article is copied from a periodical publication, or a "reasonable portion" of a work is copied.
A reasonable portion is defined to mean 10% of a work, or where the work is divided into chapters, up to a chapter of the work (see s.10 for further details).
Library and archives
The final exception I would like to briefly discuss is the library and archives exceptions which also can be used to facilitate access to copyright material by persons with print disabilities.
Generally, the library and archives exceptions allow a library to copy and communicate articles and reasonable portions of works to users for the purpose of research and study. In this context, a reasonable portion has the same meaning as it does in relation to fair dealing.
Copies made under the library and archives exceptions could potentially be made in an accessible format for persons with a print disability (for example a large print version or an electronic version).
A library can copy and communicate more than an article or reasonable portion of a work where the material is not commercially available.
Subject to certain limitations, the exceptions also allow for the making available on-line within the premises of a library works which a library has acquired in electronic form.
Further, the Digital Agenda amendments extend the inter-library loan system to articles and reasonable portions of works in electronic form where they are not commercially available.
That is all I think I have time to say on the exceptions.
Three year review
As the final part of my presentation I will provide a brief description of the Government's three year review of the Digital Agenda amendments. The review was first flagged by the Attorney-General, when, in his second reading speech on the Digital Agenda Bill in the House of Representatives, he stated:
"The amendments provided by this Bill are at the cutting edge of online copyright reform, and clearly place Australia among the leaders in international developments in this area.
As a result, in certain areas of the Bill we are entering uncharted waters. New technologies are changing rapidly and we wish to ensure that an appropriate balance is maintained between the rights of copyright owners and the rights of copyright users under the Copyright Act.
I therefore propose that the operation of the legislation, particularly the extended statutory licence scheme for educational institutions and the new enforcement measure provisions, should be reviewed within three years of the commencement of the legislation."
This was also reflected in the Coalition's policy statement, Arts for All, for the Federal election last November where the Coalition stated that it was:
"committed to a balanced and workable copyright regime for the digital age, one that encourages creativity and innovation while maintaining reasonable public access to copyright material."
It also stated that:
"The Coalition will monitor the operation of the Copyright Act as new technologies develop and new methods of creating and distributing information emerge."
It is important that the objectives of the Digital Agenda reforms are kept clearly in mind during the process of review. The objectives, as set out in section 3 of the Digital Agenda Act, are:
· firstly, to ensure the efficient operation of copyright industries in the online environment through; promoting financial rewards for creators and investors, providing a practical enforcement regime for copyright owners, and providing access to copyright material online;
· secondly, to promote certainty for communications and information technology industries that are investing in and providing online access to copyright material;
· thirdly, to provide reasonable access and certainty for the end users of copyright material online;
· fourthly, to ensure that cultural and educational institutions can access material online on reasonable terms having regard to the benefits of public access to material and the provision of adequate remuneration to creators and investors; and
· finally, to ensure that the technical processes which form the basis of the operation of the Internet are not jeopardised.
Importantly, these objectives continue today to form the basis of the Digital Agenda reforms.
The review will be based on examining how the Digital Agenda amendments have operated against the primary objectives of the reforms. The review will not include a re-evaluation of the Government's basic policy objectives on which the reforms are based. Further, the review will be limited to issues related to the Digital Agenda reforms.
The Government has already publicly flagged, in its response to the Report of the Intellectual Property and Competition Review Committee (IPCRC) which it made available in August of last year, that certain recommendations would be considered as part of the three year review. This response provides a good insight into the major issues to be included in the review's terms of reference.
These issues include, but are certainly not limited to:
· a thorough examination of the effects of the libraries and archives provisions on copyright owners' markets and the ability of libraries to discharge their important community function as disseminators of information in the online world;
· an examination of the amendments relating to first digitisation in terms of their effect on the market place and consumers;
· an examination of the new enforcement regime against the manufacture and dealing in circumvention devices and services to ensure that the legislative approach taken preserves a reasonable balance between copyright owners and users; and
· an examination of the operation of the temporary copies exception to ensure that appropriate forms of caching are included within the scope of the exception.
I note that the Government has recently publicly advertised a request for expressions of interest in relation to the possible appointment of a consultant or consultants to undertake research and analysis on specific aspects of the review.
Importantly, the Government intends to consult with copyright interests on the operation of the Digital Agenda amendments as part of the review.
Conclusion
As you can see, the Digital Agenda reforms are comprehensive and cover many issues. I hope my presentation helped to provide a useful overview of the Digital Agenda amendments and the Government's three year review of the reforms.
More importantly, I hope that my presentation assisted in shedding some light on the operation of the amendments as they apply to the provisions facilitating access to copyright material by persons with print disabilities, particularly the statutory licence under Part VB of the Copyright Act.
Thank you.