Copyright Law Review Committee

AVCC SUBMISSION TO THE COPYRIGHT LAW REVIEW COMMITTEE REFERENCE ON COPYRIGHT AND CONTRACT

AUGUST 2001

To view Word Format of this document: AVCC

To view Part 2 of this document: Issue 5 onwards

To view Part 3 of this document: Annexure A

To view Part 4 of this document: Annexure B

To view Part 5 of this document: Annexure C

EXECUTIVE SUMMARY

  1. The AVCC is concerned about licence agreements governing the supply of copyright material electronically which

    restrict the ability of a university to make use of the material in ways in which it is entitled to do pursuant to the Part VB Statutory Licence;
    cut across the fair dealing rights under section 40 of the Act;
    override the section 49 library exception, or
    impose restrictions on copying or communication for the purpose of inter-library loans which can be made under section 50.
  2. Restrictions such as those referred to above and discussed in detail in the main submission erect unnecessary barriers to efficient and legitimate access and use of resources by students, researchers and education providers.
  3. The wider concern of the AVCC is that of principle: the danger that widespread and legitimised contracting out of exceptions which apply under Australian copyright law, such as fair dealing and library copying, will eventually erode recognition of and support for maintaining these provisions in the law so that we have a system entirely based on the "pay per use" principle.
  4. The AVCC is not aware of any attempt by copyright owners to enforce restrictions of this type against universities in the off-line world. Where universities purchase copies of print publications, written contracts which include provisions which limit access to and use of the purchased work are very rare and of doubtful validity.
  5. The AVCC submits that it should not be possible to override exceptions which limit the scope of copyright by means of contract.
  6. The AVCC is of the view that no actions or remedies, or combination of actions and remedies, adequately protect against the use of agreements to override copyright exceptions. Appropriate legislative protection which rendered void or unenforceable contractual provisions to the extent that they purport to exclude or limit statutory exceptions would adequately address the concerns that AVCC has expressed in respect of both mass-market products and those offered on a more individual subscription basis.
  7. The new exclusive right of communication to the public coupled with the prohibitions on the supply of circumvention devices (for which there is no exception for the purpose of fair dealing) significantly alters the extent to which the copyright exceptions can be exercised.
  8. The AVCC supports changes to the Copyright Act which:

    a. make attempts to contractually override copyright exceptions unenforceable;
    b. broaden the exceptions to the circumvention offences where a supplier can establish that a circumvention device was supplied to a person for use for a legitimate or non-infringing purpose and that it was only used for that legitimate or non-infringing purpose.


Introduction

The Australian Vice-Chancellors' Committee (AVCC), the peak body representing 38 Australian universities, acts as a consultative and advisory body for all university affairs. The AVCC welcomes this opportunity to make representation to the Copyright Law Review Committee on the important issues of Copyright and Contract.

The issue of balance in copyright law is a very important issue for universities in their central mission of providing educational and information resources for teaching and research. Access to information for these purposes is crucial if universities are to fulfil their mission. Australian copyright law has been instrumental in providing this balance through the statutory licences in Part VA and Part VB of the Copyright Act 1989, and through the fair dealing and library exceptions. The benefit to the university community of the Part VA and Part VB licences is that copies of copyright material can be distributed to students for educational purposes, within certain limits and subject to payment of equitable remuneration, without the need to obtain permission from the copyright owner. The fair dealing and library exceptions, by enabling access to information by students and researchers generally, are additionally of benefit to the wider community, assisting the educational and intellectual advancement of our society. The Digital Amendments to the Copyright Act which came into force on 4 March 2001 extended the library, fair dealing and statutory licence provisions to enable universities and others to take advantage of new technologies, a development which the AVCC welcomed.

The AVCC is aware that licence agreements or contracts for the use of copyright material are becoming more prevalent with the increase in the electronic distribution of such material. It is the AVCC's firm position that copyright law should prevail over the provisions of such licence agreements or contracts which purport to override the exceptions enshrined in the Copyright Act. It is also of the view that in order for those exceptions to operate in the online environment in the manner intended by the government, i.e, in a way which replicates the balance which exists in the off-line world, changes need to be made to the technological protection provisions of the Act.

In making this submission the AVCC will deal with those issues raised in the Committee's Terms of Reference on which it can make an informed contribution. The AVCC also draws attention to and generally supports the submission of the Australian Digital Alliance (ADA), of which it is a member, and the Australian Libraries Copyright Committee (ALCC).

Issue 1.

The Committee seeks your views as to the extent that electronic trade in copyright material is subject to agreements that try to exclude or modify limitations to the exclusive rights of copyright owners provided in the Copyright Act. Can you provide the Committee with examples of any such agreements?

University libraries have many contracts which place limitations on what can be done with electronic material. Many come from overseas, particularly the United States, and these contracts will often address the question of what subscribers or licensees can or cannot do without reference to the underlying balance established by Australia's Copyright Act. These contracts are far from uniform in their approach to the uses and activities allowed by the copyright exceptions. Most contracts give universities and their staff and students rights which are in many respects broader than those allowed for by the exceptions - as you would expect given the subscription or licence fees that are paid by universities. However, in most cases there will also be provisions which exclude or restrict uses and activities that would be allowed by copyright exceptions and it is these provisions which concern AVCC.

The ADA/ALCC submission provides a number of examples of online licence contracts, and documents some of the restrictions that they contain. The AVCC refers the Committee to these examples. Of particular concern to the AVCC are:

In Annexure "A" to this submission, the AVCC outlines provisions drawn from various relatively standard form agreements to which universities are party and which give rise to the above concerns.

Restrictions such as those listed above erect unnecessary barriers to efficient and legitimate access and use of resources by students, researchers and education providers. The wider concern of the AVCC is that of principle: the danger that widespread and legitimised contracting out of exceptions which apply under Australian copyright law, such as fair dealing and library copying, will eventually erode recognition of and support for maintaining these provisions in the law so that we have a system entirely based on the "pay per use" principle.

Part of the community service role of libraries is to provide information to the public. The public interest is being eroded by contracts limiting the availability of electronic products to authenticated users and thereby excluding the ability of the wider public to access information through the section 49 and 50 library privileges. University libraries have always been open to public access, and it is open to any government to make public access a condition of funding. Although universities' statutory licences do not allow multiple copying of material for the public, public access to works in print has never been restricted. If access to electronic products is restricted while at the same time information is increasingly only available in electronic form, university libraries can no longer fulfil their community service role.

Issue 2.

The Committee seeks your views as to whether the situation is any different in relation to trade in copyright material that occurs off-line. Can you provide the Committee with examples of any such agreements?

Examples of restrictions on the use of hard-copy resources have been provided by the ADA/ALCC. However, as a practical matter, such restrictions apply to a very small proportion of material acquired by universities. Most works in print are acquired by purchase and the purchaser does not sign or otherwise agree any restrictions on use of the work. The only restrictions are those imposed by the Copyright Act. As a result, the transaction does not impact on the statutory exceptions and their exercise. Where there are contractual restrictions, the legal status of those restrictions is unclear. In most cases it will be doubtful that they have been sufficiently brought to the attention of the purchasing university at the time of purchase in order to be contractually binding. The AVCC is not aware of any attempt by copyright owners to enforce restrictions of this type against universities in the off-line world.

Issue 3.

The Committee seeks your views as to the nature of any such difference.

The major difference is that all subscription and licence agreements take the form of a contract with the opportunity for provisions which override copyright exceptions. Where universities purchase copies of print publications, written contracts which include provisions which limit access to and use of the purchased work are very rare and, for the reasons outlined above, of doubtful validity.

While electronic publications and subscriptions have existed for some years, there has been a significant increase in their importance in recent times. This is particularly the case with respect to academic publishing where many academic journals and works are now only available in electronic form.

Issue 4.

The Committee seeks your views as to whether the express prohibition on contracting out in s.47H suggests that provisions elsewhere in the Act can be overridden by contract. Should it be possible to achieve the result by contract? In this regard, should all exceptions be treated alike?

AVCC has read and agrees with the submission of ADA/ALCC on the question of the proper construction of section 47H. There is no evidence to suggest that the introduction of this section in the context of software decompilation was meant to alter the position with respect to the ability of parties to override other exceptions to copyright by contract. However, given the uncertainty as to both the extent to which parties could contractually override exceptions prior to the introduction of section 47H, and as to the effect of section 47H, AVCC submits that it is important that the Act be amended to clarify the position. The increasing importance of the licensing paradigm to public access and use of information, to which reference is made above, makes clarification of this issue even more important.

As to whether it should be possible to override exceptions which limit the scope of copyright by means of contract, AVCC's starting position is that it should not. Copyright does not give copyright owners a right to maximise the economic return from their works or other subject matter. In return for the State creating property rights and making available the resources of the State to enforce those rights for the benefit of the owner, exceptions have been defined which look to protect or further a variety of public interests. These include access to and use of information for research and study, educational purposes and criticism and review. For copyright owners to utilise the new licensing paradigm by insisting upon contractual provisions to undermine these exceptions, while at the same time insisting on ever stronger copyright protection through strengthened legislation and enforcement regimes, is contrary to the public interest. This is particularly the case in Australia which has a net deficit in copyright licence fees which was assessed at greater than $1 billion per year in 1999 (see Sir Anthony Mason "Reading the Future" at http://www.nla.gov.au/nla/staffpaper/mason.html ) and which in all likelihood will increase over time. As Samuelson (1999EIPR 386) and others have pointed out, to allow copyright owners to use contract to achieve this end is to enable them to contractually define their property rights, the equivalent of private legislation, while at the same time taking the full benefit of State-sanctioned and supported copyright laws and enforcement regimes.

As to whether all exceptions should be treated the same, the AVCC limits its view at this stage to those exceptions which are relevant to educational institutions, and would certainly see no basis for differentiating any of those exceptions as less deserving of protection than others. However, there is an argument that the library provisions of sections 49 and 50 of the Act are particularly important, as they provide a means of access to copyright works which is essential if fair dealing and other user rights are to be exercised. An example may help.

As noted above, in the off-line world the prevailing paradigm is the sale of copyright works. If a student or member of the public wishes to access a book and read it they can buy it, borrow it from a friend who has bought it (or borrowed it from another), buy it second hand, or borrow it from a library. Similarly, a university lecturer who wishes to copy and make available a chapter from a book to his or her students can access the book in these and other ways. Having accessed the book the person can exercise fair dealing rights or, in the case of the lecturer, the statutory licence under Part VB to make multiple copies for educational purposes.

In the online world there will increasingly be copyright works to which access is only available through subscription and other licensing transactions. The licensee will typically not be able to lend, or otherwise make available, the work to a friend or others. Not only will this often involve infringement of the new exclusive right of communication, it will be prohibited by the terms of the subscription or licence agreement. The terms on which universities or libraries take a subscription or licence for the work may also prohibit making available the work to others unless they are authenticated users for whom a payment has been made, or have read-only or other limited access.

The library provisions provide limited access to copyright works and thereby facilitate the exercise of other exceptions. Contracts which attempt to override the section 49 and 50 exceptions therefore have a particular significance.

One further comment might be made in respect of exceptions that facilitate access to and use of copyright material for educational purposes. This relates to the argument that is sometimes put that the market will constrain the extent to which copyright owners can afford to give less or charge more without losing business and profitability. It may be the case that if a member of the public wishes to acquire an electronic version of a novel he or she can refuse the terms of one publisher and choose to acquire a different novel from a competing publisher. The position of universities is somewhat different. Access to the widest range of information and therefore copyright works is important. In a world where increasingly a single electronic subscription offered by a publishing aggregator will cover what were once 1,000 different hard copy journals, there is no substitutable product which competes in the market from the viewpoint of the university. Either it subscribes, or it does not. The casualty may be that members of the public are prohibited by the terms of the subscription agreement from accessing articles in those journals by means of the section 49 library exception. It is not difficult to see the divisions that such contracts will build between authenticated users with access to information-rich resources and those who do not have that access. Similarly, staff and students at wealthy universities will have advantages over those at smaller, less established and less well-funded universities. Similarly again, such contracts carry the potential to advantage those with access to large, well-funded libraries in major cities where they can at least browse (and perhaps exercise the section 49(5A) right to make a print copy of) material which is the subject of an electronic subscription, as opposed to their country cousins who at best have access to much smaller and less resourced library facilities.

To view Part 2 of this document: Issue 5 onwards

To view Part 3 of this document: Annexure A

To view Part 4 of this document: Annexure B

To view Part 5 of this document: Annexure C