A Response to the CLRC Issues Paper on
Copying by Libraries and Archives under the Copyright Act 1968
by the Council of Australian University Librarians (CAUL)

Page updated 12 June 1997

Preface

University libraries support learning, teaching and research within their universities and, cooperatively, across the nation. They are part of the broad network of libraries which act as conduits to ensure that information is available to all, with reading and copying important factors in the process of availability.

The right to read has long been considered a fundamental right and is enshrined in the current Copyright Act. Changes in technology which provide additional formats for people to read from should not be used as an opportunity to limit the right to read. The ability to pay is an unacceptable constraint to the right of access to information.

The issue of fair dealing is central to the dissemination of knowledge in the use made of copyright works. As stated in the CAUL response to the CLRC Issue Paper on Fair Dealing Provisions, the adoption of a single fair dealing provision would enable the application of the Act in an environment of rapid technological change.

In addition, societies based on publicly elected governments depend on informed decision making. Inherent in the system is easy access by the electorate to sources of information and opinion. That Australian governments at all levels endorse this inherent requirement is evidenced by the fact that they fund libraries at all levels of the community. Easy affordable access to information is not only an unassailable 'public good' it is also a 'public necessity'. Therefore libraries, as the foremost providers of this 'public good' , are, without question, entitled to special copying privileges under the Copyright Act.

Karen Coyle in February 1997 wrote:

"In 1994 I gave a talk in which I warned the audience that libraries would some day be seen as a threat to the growing information industries. Few in the audience thought it possible. But these industries have since launched a strong campaign to prevent libraries from delivering digital information to the public. That campaign includes changes to the copyright law, the elimination of 'fair use' , and special protection for databases of facts. The goal is for every exchange of information to be a commercial transaction...Libraries stand in the way.'

What industry chooses to ignore is that publishers are paid a fair price for the books and other materials that are located in libraries , and they are paid a fair price for the online services that libraries subscribe to for public use. In addition to these payments, in Australia, libraries also pay collecting agencies under statutory and voluntary licences. What the new information industries oppose is the public forum of information, because it is seen as being bad for business.

Summary

In relation to the current issues paper CAUL submits that:

  • the libraries and archives provision should be retained
  • the dictionary definition of library should be retained
  • that fair dealing provision should be applied to libraries and archives provisions
  • that there is no reduction to the reasonable portion
  • there should be no limits placed on the right to read based on changing technologies
  • preservation copying should extend to format shifting for audio-visual materials

Are libraries and archives provisions needed at all?

CAUL submits that these provisions should be retained.

As university libraries often contain a component which is defined as an archive, both the libraries and archives provisions are applicable to university libraries.

The exclusive rights of copyright have always been limited in scope and duration in an effort to ensure reasonable access to copyright material in the public interest. Particular provisions are made for students, researchers, libraries and archives, which outline circumstances whereby copyright is not infringed. The libraries and archives provisions provide a clear delineation of procedures for library to library, and library to user copying and are essential to preserve certainty, avoid confusion and retain current copying allowances.

It is vital for current exceptions to be retained as, although many are restricted to print, this will continue to be the format in which the majority of knowledge and information is distributed for the forseeable future. Only a limited portion of the world's knowledge can be accessed by computer, particularly not knowledge that originated prior to this decade, and it is therefore essential that these exceptions are retained and not lost in the rush to deal with new technologies.

The fair dealing provisions should be extended to copying by libraries and archives. The current situation where a library cannot copy for a user in a situation where the user could copy under the fair dealing provisions can lead to confusion and is an unnecessary complication.

The division of library and archives provisions between parts III and IV of the Act.

CAUL agrees that the Act should be amended to ensure that the provisions concerning the copying and preservation of works and the complementary provisions applying to films and sound recordings have a consistent application and operation.

Definitions of 'library' and 'archives'

CAUL submits that the application of the dictionary definition of a 'library' should be retained and that 'archives' should be defined as a set of documents.

The use of the dictionary definition provides a common, readily accessible and acceptable definition and any consideration given to changing the use of this definition must be supported by irrefutable evidence.

Regarding the current situation, where the term 'library' is applied differently (ss.49(9) and 50(9) provide that a library not be conducted for profit whereas ss.51 and 51A do not), there would appear to be no reason for the difference in the use of the term. It is recommended that the term 'library' is applied consistently in line with the dictionary definition.

Selected university libraries contain collections that can be defined as 'archives' under the definition of 'archives' as a set of documents. The 'archival' collections may relate solely to the university, be a regional history collection or similar, and may include the archives of the university. The definition of archives as a set of documents is in this situation more appropriate and applicable.

To define 'archives' by the listing of specific institutions has the capacity to create problems when considering institutions such as the National Library of Australia and the State Libraries, all of which contain extensive archival collections. Unless there is a reason for listing specific archives then the documentary definition is preferred.

Copying by Parliamentary libraries (ss.48A, 104A)

The population depends on publicly elected governments to make informed decisions on a vast array of subjects. Information required in this context may be both current and retrospective and to date has not been restricted by format. To specifically exclude copying of information in electronic format, on no other basis than the format, has the potential to restrict access to vital information and is not acceptable.

In the interests of informed government it is also recommended that a 'parliamentarian' whether State or Federal, should be able to obtain information from any parliamentary library within the provisions of ss.48A and 104A. These provisions should be restricted to the period of office of the parliamentarian.

Copying by libraries and archives for users (s.49)

(i) Electronic requests for material

The issue of electronic signatures and security of requests is being investigated in other areas besides libraries as an integral part of the development of the exchange of information in electronic format. Institutions with high levels of security, such as banks, have already addressed the situation with their use of PIN numbers for access to funds and accounts.

Universities are increasingly utilising the Internet for the delivery of courses using the latest in technology. The registering and delivery of courses and related resources to students requires a degree of verification to ensure delivery . The technology which enables this to occur can also be used to verify users. The use of an actual 'signature' will vary from the piece of paper signed with a pen but can be equally as valid.

(ii) Purpose of requests for copying

CAUL submits that the libraries and archives provisions should include all fair dealing provisions.

That libraries and archives may only make copies of works for users for the purpose of 'research or study' but not for other 'fair dealing' purposes is anomalous. The application of the fair dealing provisions to copying by libraries and archives does not involve a new right, what it does is exercise the right already granted by the fair dealing provisions.

It is unlikely that the broadening of the scope of the libraries and archives provisions in this manner will have a substantial effect on the amount of copying, as libraries and archives staff are in general better informed of copyright regulations and more likely to apply them than the average user.

CAUL submits that the word 'private' should not be reintroduced before 'study'

The reintroduction of the word 'private' before 'study' is a retrograde step and increases the restriction on users. This is in opposition to the view that exceptions under the current Copyright Act should not be reduced in a simplification process.

(iii) request for copies by remote users (s.49(2A))

Remote users are disadvantaged by their limited access to information resources through both physical and electronic means. The provision of information on a particular subject, selected by the librarian or archivist as opposed to the individual, does nothing more than streamline the process. It is suggested that the user should be able to send a declaration stating that they require the information on a particular subject for the purposes of research or study thereby enabling selection by the provider.

(iv) 'Reasonable portion' (s.49(5))

CAUL supports the retention of the 'reasonable portion' as defined in s.10(2)

The key issue in this section is the definition of 'reasonable'. 10% was defined as 'reasonable' in the past and nothing has occurred to now make this 'unreasonable'.

In the print environment s.10(2) provides parameters for staff and users to work within. It is a known, applied and accepted guideline. Retaining the 10% ensures we do not restrict the free flow of information to the public. There would appear to be no particular basis for the proposal by owners to reduce the reasonable portion to the lesser of 5% or 75% of a chapter except to limit access to information.

It must be emphasised that the 10% rule works well in the print environment, which will continue to exist, and should not be discarded as a result of the development of new formats.

Making electronic copies of materials held by libraries and archives (ss.49, 50)

The heading to this section is somewhat confusing. Copying under ss.49 and 50 by libraries and archives is currently allowed at no cost and should remain so. Copying under these sections does not include copying under voluntary licences. In this case, why should this change for electronic copies?

It is assumed that the situation cited in 38 on page 6 relates to the application of university libraries to provide reserve material in electronic format, under voluntary licence, to their student population, at the same rate as the current hard copy.

This is a prime example of where the technology has now been available for a several years, however, due to the limitations of the current Copyright Act, publisher uncertainty and collecting agency recalcitrance, the use of the technology has been effectively stymied.

Clarification is required before further comment can be made on this section.

Copying of works for preservation and other purposes (s.51A)

CAUL supports the changes to s.51A(1) outlined in 45.

In addition to preservation of print materials there are issues specific to audio-visual materials which need to be considered. Audio-visual materials are particularly prone to changes in format and obsolescence of equipment, and so require copying guidelines to ensure preservation and future availability. Libraries and archives need the ability to shift formats eg. Super 8 to VHS and NTSC to PAL. Depending on the availability of equipment to play the old formats, the original copy can then be either archived or destroyed.

It is recommended that any media format no longer useable should be able to be re-recorded onto a useable format at an appropriate time.

In the case of both print and audio-visual formats the requirement to destroy the original upon copying should be removed on the basis that originals have cultural and often heritage value. A simple archiving requirement which ensured that two copies were not available for access would address this issue.

Viewing of electronically stored material

The right to read is a fundamental right, and the development of new formats should not be used as an opportunity to limit the right to read. 'Browsing' of digital copies is equivalent to reading and should not be limited.

The digitisation of selected materials by libraries and archives with the intention of making them available to a defined user group who are physically located remotely from the institution, as outlined in 50 and 51, is not a new concept.

Libraries and archives are already using commercially available products, with limitations on the user base which specify to whom the information can be provided. It is possible to limit access through the use of PIN numbers, password access and physical location of the computer (IP address). Providing information to remote users in electronic format is an extension of providing information in print format.

Temporary or incidental copies created as a by-product of electronic transmission

The production of temporary or incidental copies produced during the process of electronic transmission are part of the technology. As such these 'incidental' or 'ephemeral' copies are not deliberate and should not be regulated. The definition of a 'temporary' or 'incidental' copy should include copies not accessible to the user, any economically insignificant copies, and any copies created in the process of transmitting a work across the network or onto a screen.

Copying of samples etc for transmission to users

The use of abstracts and contents pages to enable users to make informed decisions about the level of interest or value of a work is a recognised method used for selection purposes. This method enables users to preview the work and could be used as suggested in point 34 of the issues paper to aid in the identification of individual items.

Copying and publication of unpublished works, sound recordings or cinematograph films held in libraries or archives (ss.51, 52,110A)

Period of protection

CAUL recognises the difficulties outlined in points 59 and 60 in identifying the date of death of the author and supports the suggestion in point 61 of the issues paper as a method of solving the problem. As a proven method of enabling the use of the works in question it would also provide an approach consistent with other countries.

Anonymous and pseudonymous works/untraceable owners

The options provided to solve the problem of untraceable authors are not all equally

acceptable.

The problem with 62(i) is in the definition of 'all reasonable attempts'. Who will define the scope of this? However it is possible for this to be resolved by the user agreeing to pay royalties to the owner should they be identified at a later date.

The option presented in 62(ii) is unacceptable as it effectively provides the publisher with the copyright in the work.

While 62 (iii) would legally enable use and could be the preferred option, the Copyright Tribunal is exceedingly slow in its deliberations which could make it unworkable.

Display of materials

CAUL supports the proposal that in the interests of preservation of the original a copy of an unpublished work within their collection should be permitted for display purposes provided the work is of 'exceptional documentary character'.

Photographs and engravings

CAUL agrees with the assertion that this appears to be a drafting oversight and that s.52 should be expanded to provide for the publication of unpublished photographs or engravings which are not incorporated in a literary, dramatic or musical work.

Headings of s.52 - 'Publication of unpublished works kept in libraries'

CAUL agrees that s.52 should apply to libraries and archives and supports clarification of the section.

Copying of sound recordings and cinematograph films (ss.110A, 110B)

It is difficult to see how the application of s.49 and s.50 to audio-visual materials would undermine the revenue earnings of owners as claimed. The copying suggested would not be commercially available, and where a reasonable portion of an audio visual work is copied for fair dealing, the legitimate interests of copyright owners are not undermined.

Copying of sound recordings and cinematograph films by libraries and archives for preservation and other purposes (s110B)

Copying for preservation purposes is an important role undertaken by libraries. As discussed earlier, audio-visual material is prone to format changes and equipment obsolescence and consequently the necessity to allow format shifting both for preservation and access purposes must be recognized.

In concluding the comments on the issues paper it should be reiterated that, in the public interest, the libraries and archives provisions form a vital link in the provision of access to, and preservation of, information. Proposals by copyright owners to limit access through the abolition of fair dealing, the reduction of the 'reasonable portion' and charging for every use of copyright material are in direct opposition to the balance which the Copyright Act seeks to achieve.

30 May 1997

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