1 Part II: New copyright for libraries and archives AL©C This publication is licensed under the Creative Commons Attribution-NonCommercial-ShareAlike 2.5 Australia License. To view a copy of this license, visit or send a letter to Creative Commons, 543 Howard Street, 5th Floor, San Francisco, California, 94105, USA

2 Australian Libraries Copyright Committee Laura Simes Copyright Adviser AL©C

3 Part II: Amendments to the Copyright Act 1968 Additional provisions relating to Technological Protection Measures (TPMs) New Criminal Enforcement Regime New Consumer Exceptions New ‘Fair Dealing’ Exception Exceptions for libraries AL©C

4 New Consumer Exceptions (1) Time-shifting: s111 Allows individuals to record a television program or radio broadcast to watch/listen to later. Only available to individuals for ‘private and domestic use’ Not available to organisations and institutions AL©C

5 New Consumer Exceptions (2) Format shifting: ss 43C, 47J, &110AA Allows individuals to shift certain works that they own from one format to another. Once again, only available to individuals for ‘private and domestic use’ Only for certain groups of works and formats… AL©C

6 Format shifting: ss 43C, 47J & 110AA Books, newspapers and periodicals  different format Photograph hardcopy format  electronic format Analogue  electronic AL©C

7 (3) Space shifting s 109A The “ipod” provision

8 New ‘Fair Dealing’ Exception ‘Fair dealing’ exceptions that were available before the 2006 amendments are still in place. No infringement where the use amounts to fair dealing for the purpose of : Research or study (s 40); Criticism and review (s 41); Reporting the news (s 42) ; or Professional advice & judicial proceedings (s43). AL©C

9 New ‘Fair Dealing’ Exception Copyright Amendment Act 2006 introduced one more exception: Fair dealing for the purpose of parody and satire (ss 41 and 103AA) AL©C

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11 Changes to existing exceptions User requests & documents delivery Libraries & archives can reproduce & communicate articles and works to users for ‘research & study’ (s49) Libraries & archives can reproduce & communicate articles and works to another library for inclusion in their collection; or to supply a user under s 49. (s50) AL©C

12 User requests &document delivery Definition of ‘library’ Before: library does not include a library that is conducted for the profit, direct or indirect, of an individual or individuals Now: library means a library all or part of whose collection is accessible to members of the public directly or through interlibrary loans. archives means an archives all or part of whose collection is accessible to members of the public AL©C

13 User requests &document delivery (2) “same subject matter” Before: A library can only supply more than one article from the same periodical if they relate to the same subject matter. Now: A library can only supply more than one article from the same periodical if it is for the same research or course of study. AL©C

14 User requests &document delivery (3) The commercial availability test Before: If supplying a copy of more than a ‘reasonable portion’ of a work - an authorised officer must first declare the whole or portion of the work cannot be obtained within a reasonable time at an ordinary commercial price. AL©C

15 User requests &document delivery (3) The commercial availability test Now: when the person requesting the copy needs it whether the work can be obtained in electronic form within a reasonable time, at an ordinary commercial price the time it would take to deliver the copy to the requesting person. AL©C

16 User requests &document delivery SUMMARY OF CHANGES New library definition Same subject matter  same research or course of study Further guidance on test of “commercial availability” AL©C

17 Changes to existing exceptions Reproducing works for preservation purposes (s51A) Before: To preserve manuscripts or original artistic works against loss, damage, or deterioration or to provide a copy for research at another library or archives* To replace a published work that has been damaged or deteriorated, lost or stolen* For ‘administrative purposes’ *Subject to the ‘commercial availability’ test AL©C

18 Reproducing works for preservation purposes (s51A) (1) Now: Clarification of ‘administrative purposes’: means purposes directly related to the care or control of the collection AL©C

19 Would include educating and training staff and volunteers in relation to activities directly related to the management of the collection of the library or archives Would not cover reproduction to merely add to the collection of the library or archives so more copies are available for users.

20 Reproducing works for preservation purposes (s51A) (2) Now: An institution may now make a reproduction of a published work even if a later edition of the work is commercially available (new s 51A(4)) Authorised officer must make a declaration stating: No new copy of the work can be obtained within a reasonable time at an ordinary commercial price Providing the reason for reproduction of that particular edition AL©C

22 Reproducing works for preservation purposes (s51A) SUMMARY OF CHANGES ‘administrative purposes’ Preservation copy of earlier edition when late is available AL©C

23 New exceptions New preservation provisions for ‘key cultural institutions’ (ss51B, 110BA & 112AA) Allows institutions to make up to 3 copies from the work for the purpose of preserving against loss or deterioration. AL©C

24 New preservation provisions for ‘key cultural institutions’ Who can use this new exception? 1.Libraries and archives that have a legislative function of developing or maintaining a collection 2.Bodies prescribed by regulations AL©C

25 New preservation provisions for ‘key cultural institutions’ Manuscripts First sound recording or unpublished recording First copy or unpublished copy of film The institution may make 3 copies from the work for preservation purposes An authorised officer needs to be satisfied the work is of historical or cultural significance to Australia. AL©C

26 New preservation provisions for ‘key cultural institutions’ Original Artistic work Published work Published sound recording Published film Published edition 3 copies if authorized officer satisfied work is of historical or cultural significance to Australia. ALSO – subject to commercial availability test (inc electronic availability) AL©C

27 New preservation provisions for ‘key cultural institutions’ SUMMARY OF CHANGES & EFFECT Currently only applies to institutions who develop/maintain a collection Allows institution to make 3 preservation copies For some works institution needs to check if a copy is commercially available (electronic included) AL©C

28 New Exception Flexible dealing provision: s 200AB Purpose of 200AB is to “provide a flexible exception to enable copyright material to be used for certain socially useful purposes” Intended to operate ‘like’ fair use AL©C

29 New flexible dealing provision s 200AB Who can use this exception? Libraries & archives Educational institutions A person with a disability or a person or body on behalf of a person with a disability AL©C

30 New flexible dealing provision s 200AB When can libraries/archives use this exception? 1. Threshold requirements; and 2. The 3-step test AL©C

31 Threshold requirements: No other exceptions in the Copyright Act apply Use by or on behalf of a body administering a library or archives The intended use is for the purpose of maintaining or operating the library or archives (libraries) or educational instruction (educational institutions) The intended use is not “partly for the purpose of the body obtaining a commercial advantage or profit”

32 3 step test The use: 1) amounts to a special case 2) does not conflict with a normal exploitation of the material 3) does not unreasonably prejudice the legitimate interests of the copyright holder.

33 No other exceptions apply EXAMPLES: Fair dealing exceptions Libraries and archives – eg a preservation provision Educational institution – eg Part VA or VB license AL©C

34 Use by or on behalf of a body administering a library or archives The institution can allow another person or body to act as agent for them AL©C

35 Use for the purpose of maintaining or operating the library or archives Includes providing a service of a kind usually provided by a library or archives. Encompasses the internal administration of the library or archives AND providing services to users A broad purpose test that includes the full ambit of usual library or archives activity. AL©C

36 For the purpose of giving educational instruction Includes…. Preparing to teach Compiling resources for students Something else for the purpose of teaching

37 Use not partly for the purpose of obtaining commercial advantage or profit The institution can still charge a cost recovery fee: s200AB(6A) BUT An eligible body should not be able to use this exception partly for the purpose of gaining an advantage, benefit or gain from being engaged in commerce AL©C

38 The 3-step test The use: 1. amounts to a special case 2. does not conflict with a normal exploitation of the material 3. does not unreasonably prejudice the legitimate interests of the copyright holder.

39 1. Use amounts to a “special case” Questions to ask: Is the use clearly defined and narrow in scope? Can the circumstances of the use be confined to a special category? AL©C

40 2. Use does not conflict with a normal exploitation the material Questions to ask: How does copyright holder normally extract economic value? Does proposed use enter into competition with this use? Does the proposed use deprive the copyright holder of significant or tangible commercial gains? Consider whether the proposed use could with a certain degree of likelihood, acquire considerable economic or practical importance (in the future) AL©C

41 3. Use does not unreasonably prejudice legitimate interests of copyright holder Questions to ask: Is the use appropriate? (eg not making more copies than necessary) Has the creator been properly attributed (if possible)? If necessary, has access been restricted? (eg if used for administrative purposes, library or archives users would not need access) SUMMARY: consider the purpose, and limit the use to a reasonable amount. AL©C

NO Conflict with normal exploitation? For maintenance or operation of the institution? Unreasonably prejudice the copyright owner? Special case? Partly for commercial advantage or profit? s200AB applies YES NO Summary Table For educational instruction? YES NO

43 Possible s200AB Examples Format shifting in institutions? Thumbnail images? Compilations? Use of an orphan work? AL©C

44 Technological Protection Measures (TPMs) What is a TPM? A Technological ‘lock’ that prevents copying a work, or accessing a work. EXAMPLES: software access codes, DVD region coding, copy-protection on DVDs Before: Cannot commercially supply devices that circumvent TPMs Can circumvent TPMs preventing access (Sony v Stevens) AL©C

45 Technological Protection Measures (TPMs) Now: New category of access control TPM Extends to locks that prevent access, and not just prevent copying (eg software encryption or passwords) Cannot use or supply devices or services that circumvent access TPMs Cannot circumvent access TPMs AL©C

46 Technological Protection Measures (TPMs) EXCEPTIONS: Where owner gives permission Region coding (DVDs, games) Interoperability with computer programs Circumvention by libraries & archives for certain purposes: AL©C

47 Criminal Offences and Infringement Notices 3 tiers of offences 1. Indictable Up to 5 years imprisonment &/or $60,500-$93,500 fine 2. Summary Up to 2 years imprisonment and/or $13,200 fine 3. Strict Liability Maximum $6,600 fine, Infringement Notice scheme AL©C

48 Criminal Offences and Infringement Notices Some points to note with new offences… Penalties are per infringement (a single case may involve a number of individual infringements) Effect on libraries and archives? Note offences under ss 49, 50 AGD recently released draft infringement notice guidelines for comment AL©C

49 Summary of changes: Format-shifting / time-shifting for individual consumers ‘Fair dealing’ exception for the purpose of parody & satire Strengthening of TPM provisions 3 tier system of criminal offences, infringement notice scheme AL©C

50 Changes especially relevant to libraries and archives: New ‘special case’ exception (s200AB) New definitions: ‘library’ ‘admin purposes,’ ‘reasonable portion’ and ‘course of study’ (ss 49 and 50 library and fair dealing for research and study) Amendment to existing preservation provision and new preservation exception AL©C

51 How will this change practices and procedures in institutions? Preservation – key cultural institutions Availability of document delivery (ss49 & 50) for corporate libraries Potential effect of s200AB

52 Conclusion Contract overrides the Copyright Act! Licenses Creative Commons licenses AL©C

53 Questions? Laura Simes Copyright Adviser Australian Libraries’ Copyright Committee Executive Officer Australian Digital Alliance p: | f: | e: AL©C