Simplification of the Copyright Act 1968 (Part 1)
Phillip Bailey
Law and Bills Digest Group
29 June 1999
Introduction
Part 1 of the Copyright Law Review Committee's (CLRC) Simplification
of the Copyright Act 1968, was released in September 1998 and is still
subject to further government consideration.
The focus of Part 1 is recommended amendments to the fair dealing and
related provisions of the Copyright Act 1968. Its recommendations
are the focus of consultations on the Exposure Draft of the Copyright
Amendment (Digital Agenda) Bill 1999 (as far as the report relates
to the 'digital agenda').(1)
This first part of the CLRC's report:
- considers royalty-free exceptions to copyright, beginning with the
fair dealing doctrine and concluding with the CLRC's proposed amendments
to fair dealing in the Act,
- examines other free royalty exceptions to copyright, including copying
by libraries, archives and other miscellaneous exceptions including
statutory licences.
What is fair dealing?
Fair dealing (also known as 'fair use' in the USA), is the set of restrictions
on the rights of copyright owners. The USA provides an open ended, or
inclusive set of 'fair use' exceptions to copyright owner's rights, whereas
Australia (along with virtually all other jurisdictions) sets out 'fair
dealing' exceptions as an exclusive set of exceptions. These exceptions
define the uses that may be made of copyright material that would usually
constitute a violation of the copyright owner's rights.
Under the Copyright Act 1968, the doctrine of fair dealing is
limited to four purposes:
- research or study (ss 40 and 103C)
- criticism or review (ss 41 and 103A)
- reporting of news (ss 42 and 103B), and
- professional advice given by a legal practitioner or patent attorney
(s. 43(2)).
Whilst the exceptions do not define what particular acts constitute fair
dealing within these purposes, the CLRC (with the exception of one member)
concludes that fair dealing applies broadly to all the exclusive rights
subsisting in subject matter being used for the prescribed exceptions.
The CLRC's proposed amendments to the Act are aimed at making the Act
simpler, 'technology neutral', and expanding the categories by making
them inclusive and not exclusive. A claimed advantage of an inclusive
set of fair dealing exceptions is the flexibility it allows, particularly
with emerging technologies.
Simplification of fair dealing
CLRC recommends simplifying the fair dealing provisions by:
- consolidating the current provisions (ss 40,41,42,43(2), 103A, 103B
and 103C) into a single section
- absorbing ss 104(b) and 104(c) (relating to acts done for the purpose
of professional advice) within fair dealing
- removing the fair dealing provisions that specifically apply to external
students (ss 44 (1A) and 40(1B))
- removing the need for sufficient acknowledgment in relation to fair
dealing for reporting news (ss 42(1)(a) and 103B(1)(a))
- adopting a modified quantitative test (s. 40(3)) (the proposed test
being a stand-alone provision on permitted free copying, with the term
'reasonable portion' being renamed 'prescribed portion'. The provision
would also prohibit serial copying of 10% portions. The quantified test
would be limited to published literary, dramatic and musical works in
printed form).
Expansion of fair dealing purposes
The CLRC recommends that the currently exclusive set of fair dealing
purposes be amended to be inclusive. The majority of the CLRC also recommends
that the suggested fair dealing model apply to all exclusive rights, including
the Government's proposed right of communication to the public, and electrocopying.
Limitations on fair dealing
The CLRC makes several recommendations which limit fair dealing, these
are:
- include cinematograph films in the definition of 'sufficient acknowledgment'
- maintain a specific provision to comply with article 10(3) of the
Berne Convention, or amend moral rights related provisions in relation
to dealings conducted for the purpose of criticism or review
- remove ss 42(1)(a) and 103B(1)(a) and that reliance for these be put
on the new moral rights provisions to effect compliance with article
6bis(1) of the Berne Convention
- that s. 42(2) be expanded to include literary, dramatic and artistic
works and cinematographic films, and that reporting the news by means
of photography also be included.
Fair dealing for the purpose of professional legal advice
A majority of the CLRC recommends that all uses of copyright for the
purpose of providing professional legal advice fall within fair dealing,
including electronic reproduction.
Copying by libraries and archives
The CLRC makes several recommendations regarding libraries and archives.
These include:
- that definitions of 'library' and 'archive' be clarified so as not
to have regard to whether they are run for profit (this would require
that s. 18 be removed)
- the requirement that librarians, archivists, and users make declarations
when making copies be removed from ss 49, 50, 51A and 110B of the Act
- that librarians and archivists be permitted to exercise use of fair
dealing provision on behalf of users, and in such cases it is the user's
purpose that is the relevant purpose.
Copying for preservation
The CLRC recommends that several sections be repealed and regulated by
the proposed fair dealing provision. These include: s. 51AA (copying of
works in archives), s. 110B (copying of sound and film for preservation),
s. 53 (illustrations accompanying articles and other works).
Copying and publication of material in libraries or archives
The CLRC recommends that:
- the requirement in s. 51 that unpublished works not be copied until
75 years have elapsed since the work was made be removed
- the purposes for which unpublished sound recordings and cinematograph
films may be copied, as set out in s. 110A, be extended to include
preservation
- the Act regulate the publication of unpublished sound recordings and
cinematograph films (modelled on s. 52).
Copying by parliamentary libraries
The CLRC recommends that ss 48A and 104A be amalgamated and that this
amalgamated section provide that copyright in works and subject matter
other than works is not infringed by anything done for the sole purpose
of providing library services to a member of an Australian parliament.
Infringing copies made on machines installed in libraries and archives
The CLRC recommends that s. 39A of the Act be extended to apply where
any copyright material in a library or archive collection is accessible
via a computer terminal made available to users. They also recommend that
the prescribed notice under s. 39A advise users of the copyright owner's
rights and of possible legal consequences from any unauthorised use.
Reproductions, publications and transmission of artistic works
Sections 65, 66 and 67 currently allow copying of works found in public
places, the justification being such activity is hard to control (e.g.
someone taking a photo of an artwork in a public gallery). The CLRC recommends
the repeal of these sections, and as a necessary consequence, ss 68 and
69.
Reconstruction of buildings
Section 73 of the current Act provides that where copyright subsists
in a building, this copyright is not infringed by later reconstruction
of the building or reference to the plans. The CLRC recommends s 73 be
repealed, and that this issue be dealt with generally under fair dealing.
Public performance of works contained in old films
Section 110(2) of the Act provides that where copyright has expired in
a film, any work used in the film, whether still protected or not, is
not infringed by the showing of the film. The CLRC recommends that this
be dealt with under fair dealing, and hence recommends the repeal of s.
110(2).
Remove definition of 'educational institution'
'Educational institution' is currently defined in s. 10 and takes up
nearly four pages of the Act. The CLRC recommends omitting this definition
and repealing s. 10A. This would leave 'educational institution' to be
interpreted for its plain meaning, as 'library' is.
Definition of a handicapped reader
The CLRC recommends that the definition of 'handicapped reader' be amended
to include those with 'perceptual or other disabilities that limit their
ability to follow a line of text or that affect their concentration' as
well as a specific reference to people with 'cognitive disabilities' and
those who suffer from insufficient literacy or language skills.
Range of formats covered by a license
The CLRC recommends that where reproduction is allowed under the handicapped
readers provision, that this includes reproduction in any appropriate
format.
Use that may be made of material copied
The CLRC recommends that the current provision requiring that copies
be made only for research, study or self instruction be removed, provided
there is no charge beyond the direct cost.
Sale of copies
The CLRC recommends that institutions be allowed to charge on a cost
recovery basis for their services, provided those charges are limited
to costs directly incurred.
The Exposure Draft of the Copyright Amendment (Digital Agenda) Bill
1999
The Exposure Draft of the Bill currently implements only three of the
recommendations made by the CLRC. These are the suggested amendments of
s. 39A(a) (making libraries insulated from infringements made by users
of computers and the internet), the repealing of s. 69 (due to the proposed
expansion of the definition of 'broadcast' to include cable transmissions),
and the recommended removal of the 75 year protection in s. 51(1) (reproduction
and publication of unpublished material in libraries and archives).
It should be remembered that the Exposure Draft of the Copyright Amendment
(Digital Agenda) Bill is aimed at implementing the 'Digital Agenda'(2)
reforms, and as a result consideration of the CLRC report has been in
relation only to these reforms.
Concluding Comments
Part 1 of the CLRC's report is likely to attract less debate than Part
2. The reason for this is that Part 1 is mainly concerned with clarifying
the provisions in the Act relating to fair dealing. The proposed amendments
attempt to simplify the structure and functioning of the fair dealing
related provisions in the Act, to make it more workable and technology
neutral. Both parts of the CLRC report are to be considered by the Government
later in the year. Copyright enforcement issues are being examined
by the House of Representatives Standing Committee on Legal and Constitutional
Affairs with a report expect at the end of 1999.
- The 'Digital Agenda' reforms were based on the Discussion paper Copyright
Reform and the Digital Agenda, which was released in July 1997.
The reforms were announced by the Government on 30 April 1998. Attorney-General
Hon Daryl Williams QC discussed the reforms in his speech 'Copyright
and the Internet: New Government Reforms' delivered at Murdoch University,
Perth, April 30 1998. For a transcript see: http://law.gov.au/ministers/attorney-general/articles/speech1.html
- ibid.
|
