AUSTRALIAN LIBRARY AND INFORMATION ASSOCIATION

COPYRIGHT LAW AND CONTRACT

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Executive summary

Each year libraries provide a range of services to millions of researchers, students and members of the public. These services are performed in conformity with the copyright laws.

Librarians are aware of the advances in digital technology and wish to take advantage of the efficiency which digital technology offers to their information services. They are equally aware that digital technology poses a threat to copyright protection and are sympathetic to the needs of copyright holders.

ALIA believes that librarians and information professionals act as responsible intermediaries balancing the legitimate needs of users of copyright works with the legitimate rights of copyright holders.

Copyright protection should encourage, not inhibit, use and creativity. Copyright law should not give rightsholders the power to use technological or contractual measures to override the exceptions and limitations to copyright and distort the balance set in international and domestic copyright legislation. Licensing agreements should complement copyright legislation, not replace it.

ALIA believes that nothing in a licence or contract should be able to extinguish fair dealing uses or limit the rights of libraries under the Copyright Act. National copyright legislation should render invalid any terms of a licence that restrict or override exceptions or limitations embodied in copyright law. National copyright laws should aim for a balance between the rights of copyright owners to protect their interests through technical means and the rights of users to circumvent such measures for legitimate, noninfringing purposes.

Most copying of material in libraries is for educational, research or private study purposes. It is in the public interest to have access to information in all formats.

And it is the public duty of libraries to provide access to copyrighted material. The library and information sector should have the opportunity to do so as long as it does not infringe on Australian and international copyright law.

Recommendations

ALIA recommends that:

that the current legislative regime is inadequate in dealing with copyright and Contract Law and that the government put in place comprehensive measures to ensure that parties cannot contract out of the exceptions laid down in the Copyright ACT 1968.
the Copyright Act 1968 codify common law rules regarding unfair copyright contracts.
a study of the operation of the so-called right of first digitisation, the scope of the safe harbour provisions, and the combination of technological measures and contract to ensure that the balance of interests in the Act is preserved.
the express prohibition in section 47H could be misread to suggest that provisions elsewhere in the Copyright Act 1968 could be overridden by contract. And that there be an express acknowledgment that all the exceptions contained in the Copyright Act 1968 cannot be overridden by contract.
the ACCC be given greater powers to regulate copyright collecting societies, and the competitive effects of contracts, agreements, and licences.
special protection for consumers of mass-market products, such as shrink wrap and other restrictive licences, to protect their rights under the Copyright Act 1968.
shrinkwrap clauses that mandate binding arbitration should be invalidated.
the Australian government put in place comprehensive measures to ensure that parties cannot 'contract out' of the exceptions laid down by the Copyright Act 1968.
copyright licences should not prohibit-disclosure of license terms.
no Australian individual or organisation should be forced to comply with the laws of a foreign jurisdiction unless they are operating outside Australia's jurisdiction.
the Australian government not follow the United States model in either domestic law or international copyright negotiations because of the overwhelming criticism of that model in allowing contracts to override copyright law.
ALIA finds some merit in the European directives seeking to prevent contracting out in respect of copyright exceptions. However, it maintains that a more general approach to copyright law and contract law is required in Australia to ensure simplification, clarity and the present balance interest in the Act.

The current legislative and policy framework

The Copyright Law Review Committee (CLRC) reference to copyright law and contracts must be undertaken in the context of other legislative and policy initiatives.

The Copyright Act 1968 and the CLRC simplification project

ALIA submits that the current exceptions under the Copyright Act 1968, should not be directly, or indirectly, diminished by contract. In particular, the exceptions recognised in the Copyright Act 1968 should be enshrined in the legislation, and contracts that seek to override such provisions should be rendered illegal.

The defence of fair dealing and other copyright exemptions

The rights of copyright owners are not entirely unrestricted, but are subject to considerations of what is fair and reasonable use of material for certain worthwhile purposes.[1] The Act allows certain use of works and other subject matter without the need to get permission (a licence) from the owner of copyright. The defences to infringement may be seen as serving a number of objectives - including the administration of justice, the advancement of education, the protection of the public's right to be informed and fixing the limits beyond which it is unreasonable to assert a proprietary right in one's own or another's work.

The former Chief Justice of the High Court, Sir Anthony Mason comments:

'There should be no weakening of the exception in favour of fair dealing. The 'fair dealing' exception to infringement of copyright is and always has been squarely based on recognition of the paramount public interest in the copying or reproduction of copyright material for certain purposes such as research and study, criticism or review, news reporting, court proceedings and the provision of legal advice. If the 'fair dealing' exception is to be changed, it should be extended along the lines of the flexible American 'fair use' exception. That would permit the use of copyright material for important public purposes'.[2]

Given the public importance of the defence of fair dealing, it is important that this doctrine is not undermined by contract law or technological measures.

Libraries and archives exemptions

Special exceptions in the Copyright Act 1968 allow copying and communication by libraries and archives of literary, dramatic, musical and dramatic works. Such provisions are not historical accidents, as has been suggested by the Copyright Agency Limited and the Australian Copyright Council. They are designed to support and encourage cultural institutions to play a great role in disseminating information and knowledge throughout the nation.

Such provisions are important in safeguarding the vital public role of libraries and archives. As Sir Anthony Mason notes:

'Today, throughout the world, libraries are contending with a variety of constraints upon their capacity to develop collections in an era where publications are expanding across an ever-widening landscape of subjects and forms. Those constraints range from endemic funding limitations and storage inadequacies to the increased cost of acquisitions and subscriptions due to the pricing structure of very large international publishing and information groups such as Elsevier N.V. These structures have been reinforced by the merger of very large publishers. This has lifted the price of books and particularly serials way beyond the rise in inflation. The future of serials is in the balance. Technology may result in the article displacing the journal as the unit of library currency'.[3]

It is important that the Government ensure that the special provisions for libraries and archives are not undercut by contractual provisions. Similarly, statutory compulsory licences should not be displaced by contractual provisions, which diminish the rights of copyright users.

The simplification project

ALIA is supportive of the simplification project - particularly in relation to the introduction of a defence of fair use.[4] It also agrees with Sir Anthony Mason about the need to raise the threshold of originality and defend the notion of a substantial part: 'If there is to be a change in the concept of copyright, there should be an insistence on a stronger element of originality... Equally important is the continued need to insist on the requirement that reproducing or copying a substantial part of copyright work is a core element of infringement'.[5]

In a review of the simplification project, Sam Ricketson comments:

'The CLRC proposals treat copyright as a closed system, holding out the prospect (perhaps unintentionally) that this will solve the challenge of a continually changing technological environment. But the real challenges may well lie elsewhere, in the sphere of enforcement, technological anti-infringement measures, contractual provisions, and resolution of the difficult private international law issues that arise in the on-line environment. This is not intended as criticism of the CLRC for not having addressed these issues-they were not part of its brief. On the other hand, it may indicate that simplification, whether formal or substantive, may really be a side issue to those which are of real concern to owners and users'.[6]

To view Part 2 of this document: First six recommendations

To view Part 3 of this document: Final six recommendations

To view Part 4 of this document: Appendix and Footnotes