Journal of Law, Information and Science
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Peter Treyde[∗]
The Copyright Law Review Committee (CLRC) has completed its work on simplification of the Copyright Act 1968. The first area identified for inquiry by the CLRC was the exceptions to copyright owner’s rights. This paper gives an overview of the CLRC’s recommendations, contained in its report on Part I of its reference to simplify the Copyright Act.
The CLRC has made recommendations and proposals with respect to the following exceptions: fundamental exceptions (particularly fair dealing), public interest exceptions (particularly library and archive copying) and other exceptions (including educational copying and copying for people with disabilities). In its review, the CLRC focused heavily on the necessity of simplifying these exceptions so that they can be easily applied in the digital environment.
The Copyright Law Review Committee’s terms of reference direct it to simplify the Copyright Act 1968 (the Act) so that it might be easily understood by persons needing to understand their rights and obligations. Four main areas were identified for inquiry by the Committee:
1 the exceptions to copyright owners’ rights
2 the existing categories of rights comprising copyright in works and other subject matter
3 categorisation of protected subject matter, and
4 outstanding issues identified by the Copyright Convergence Group (CCG).
The Committee has now completed its work on its simplification reference. The exception provisions of the Act, referred to in the first point above, are responsible for most of its complexity and length. Part I of the Committee’s report, which deals with those exceptions, has now been published and a copy is available on the Committee’s web site at http://www.agps.gov.au/clrc. Part II of the Committee’s report which deals with matters arising under the other three points listed above has also been completed and was forwarded to the Attorney-General before the calling of the Federal election. Publication of that part of the Committee’s report will be a matter for the Attorney-General.
When considering simplification of the exclusive rights of copyright owners the Committee’s terms of reference required it to have regard to a broad range of factors. Those factors included Australia’s international obligations, the Government’s ongoing copyright law reform agenda, the effect of any proposed changes on the structure and operation of relevant public and private-sector organisations, technological developments and ongoing developments in the relevant international copyright forums.
The Committee published a series of short issues papers, it invited submissions, held a public forum and conducted other less formal meetings with relevant interests on particular matters.
The following discussion identifies some of the main issues that the Committee had to grapple with and the reforms proposed by the Committee.
The first category of exceptions considered by the Committee could be described as ‘fundamental exceptions’. These exceptions, which seek to preserve the rights of information users and ensure informational freedoms are preserved, define the limits of copyright owners’ rights. They also help ensure that the flow of information is kept free from the exercise of property rights. In so doing, they guard the interests of information users and help guarantee public access to copyright materials. This category includes reproduction for the purpose of reporting the news, criticism, research and study, and parody, and might also include exceptions that allow for limited copying for personal or other private uses.
In January 1997 the Committee published an issues paper concerning the simplification of the ‘fair dealing’ provisions of the Act. That issues paper was discussed at the public forum held in Sydney in April 1997. Both the forum and the paper gave rise to a number of helpful submissions on this issue. Perhaps the key issue in this area is how these fundamental limits on the rights of copyright owners can be translated into the digital environment.
The Committee’s consideration of the fair dealing exceptions has been shaped by its terms of reference which importantly direct it to simplify the Act in a manner so that it may be understood by those who need to understand their rights and obligations under the Act.
This imperative led the Committee to propose the following in relation to the existing fair dealing provisions:
• consolidation of the current fair dealing provisions in Parts III and IV of the Act (ss 40, 103C, 41, 103A, 42, 103B, and 43(2)) into a single provision
• expansion of fair dealing to an open-ended model that specifically refers to, but is not limited to, the current exclusive set of purposes, namely research or study, criticism or review, reporting news and professional advice, and
• general application of the ‘fairness’ factors (see s 40(2)) to all fair dealings.
The Committee’s proposal builds on the existing jurisprudence that has developed around the current fair dealing provisions, is consistent with Australia’s international obligations and simplifies the Act. While the provision is concise, in the Committee’s view, it contains enough detail to provide guidance to both copyright owners and users. The Committee has adapted the existing fair dealing provisions to give them more general application. The Committee expects that this will enable them to operate effectively in the digital environment and make them sufficiently flexible to accommodate new uses that may emerge as a result of technological developments in the future.
The particular aspect of the fair dealing provisions that caused the Committee the greatest difficulty is the current quantitative test (s 40(3)) and the associated definition of a ‘reasonable portion’ in s 10(2). The quantitative test applies to dealings ‘by way of copying’ with published literary, dramatic and musical works. The test, which is open ended, provides valuable guidance in relation to the copying of such works in printed form.
The Committee received a number of submissions from copyright users that urged for an extension of the of the test to all copyright material including materials in a digital form. Examination of this proposal raised a number of difficult issues.
First, the Committee had to consider whether as a matter of principle the test should remain confined to published literary, dramatic and musical works. Secondly, the Committee had to consider how the test might apply to other copyright materials, especially those created in a digital form. In doing so the Committee considered how all the different categories of copyright materials can be quantified, and how the tests applying to each of those categories would be drafted. Finally, the Committee considered how the result meets the requirement in its terms of reference to simplify the Act so that it can be readily understood.
The Committee encountered a number of difficulties when considering how to extend the quantitative test. These included:
• the lack of consistent units upon which to apply a quantitative test to copyright material in a digital form
• the large number and the range of separate copyright materials which may be incorporated in electronic databases
• the lack of distinction which often exists between different copyright materials when expressed in digital form, and
• problems in trying to apply a test to non-linear digital copyright materials such as interactive multimedia products.
These difficulties required the Committee to consider two approaches. The first was whether a carefully drafted but necessarily complex provision containing exceptions tailored to specific subject matter would provide users with sufficient certainty. Under the second, the Committee considered whether the application of general fair dealing principles to dealings with copyright materials in the digital environment might not provide just as much certainty in a technology-neutral way.
After careful consideration of these alternative approaches the Committee reached the view that the second approach is the most suitable. The Committee considered that the first approach which seeks to deal with each specific case is undesirable. First, it cannot be comprehensive in its coverage. Secondly, each new circumstance that needs to be addressed adds to the complexity of the legislation. Thirdly, the present quantitative test suffers from limitations which make it unsuited to the digital environment. In contrast to this, the second approach is technology neutral and because it avoids the use of specific provisions for particular circumstances it should produce simpler legislation that is less likely to need frequent revision.
Accordingly, the Committee has recommended a new quantitative test for the Act. The new test would be a stand-alone provision separate from the proposed fair dealing provision which will:
• be limited to published literary, dramatic and musical works (or adaptations) in a printed form
• be defined exhaustively through reference to a ‘prescribed portion’ that reflects the limits set by the definition of a ‘reasonable portion’
• apply to all dealings for the purpose of research or study, and
• operate as a simple deemed exception.
The second category of exceptions considered by the Committee could be grouped under the heading ‘public interest’. Perhaps the majority of exceptions are motivated by various public interest considerations. For this reason, it must be acknowledged that the line between this category and the ‘fundamental exceptions’ may not be easy to draw in some cases.
This category of exceptions includes educational copying, copying by libraries and archives, and copying for people with disabilities. The common feature of these provisions is that the public interest is served by allowing copying, without authorisation, of the protected works, action which the legislature deems outweighs the copyright owner’s interest in full copyright protection. The copyright owner may of course be compensated by the payment of equitable remuneration.
As with the fundamental exceptions, the Committee considered how these exceptions might be simplified and how they should operate in the digital world. The Committee’s concern was to ensure that the operation of the exceptions is not distorted when applied in the digital environment.
At the most general level the Committee considered whether:
• the libraries and archives provisions are needed at all and if so how they could best be simplified
• the provisions in Parts III and IV of the Act should be grouped together, and
• the definitions of ‘library’ and ‘archives’ in the Act are necessary and appropriate.
The Committee’s issues paper asked if the provisions might be amalgamated with the fair dealing provisions, or fall within a general fair use provision. The latter suggestion was generally supported by users on the basis that it would enable copying by libraries and archives for users for purposes other than research or study. Copyright owners, however, proposed voluntary or statutory licence schemes instead of the present unremunerated schemes. These proposals were opposed by users on the basis that they would restrict ‘the right to read’.
The Committee expressed the view that in the public interest limited royalty free copying of copyright materials by libraries and archives is an important exception to copyright owners’ rights that should be maintained. It concluded that these provisions should not be replaced by voluntary or statutory licensing schemes or amended in such a way as to constitute a substantial reduction to the type of copying currently permitted in the Act. Accordingly, it recommended that provisions regulating the making of royalty-free copies of copyright material by libraries and archives remain in the Act but in a simplified form.
At present the Act distinguishes between works and subject matter other than works in that libraries and archives may make copies of published works for users but there are no corresponding provisions for subject matter other than works. Submissions from the Law Council and libraries supported an approach which treated all materials in the same way, while the Australian Copyright Council (ACC) expressed concern that it might undermine the effect of the statutory licence in Part VA of the Act.
The Committee recommended, subject to a dealing with a prescribed portion being confined to printed published works, that the library and archives provisions be amended so that the copying of whole works or parts of works and subject matter other than works for users and other libraries and archives is treated consistently. The Committee was of the view that treating works and subject matter other than works consistently would remove confusion caused by the different standards set for different types of copyright materials, remove unnecessary duplication, and contribute significantly to simplification of the Act.
The main issues concerning the definition of ‘library’ were, first, whether a definition is necessary, and secondly, whether the exceptions applicable to libraries should be limited to those libraries not conducted for profit. Submissions were made to the Committee that copying should only be done by libraries not conducted for profit.
The Committee noted that most submissions to it regarded the ordinary dictionary meaning of ‘library’ as sufficient. The Committee agreed with this view and recommended that the term ‘library’ remain undefined in the Act. In relation to the second issue the Committee did not consider that allowing libraries that are conducted for profit to perform royalty-free copying in limited instances would unreasonably prejudice the legitimate interests of copyright owners. The Committee stated that it does not expect that the revisions it proposes will encourage libraries to set up copying services as an alternative to publishers.
In relation to ‘archives’, the definition in the Act operates by reference to the material in the custody of certain specified institutions and then adds a general catch-all of a type of collection of documents. The Committee asked whether there was a need for a specified list of archives in the Act, and whether the provisions should operate only in respect of archives not conducted for profit. Submissions to the Committee recommended that there was no need for a specific list. The Committee noted that the definition in s 10(1) was merely illustrative not exhaustive and agreed with the submissions that there was no need for a specific list. Accordingly, it recommended that the current definitions of ‘archives’ in ss 10(1) and 10(4) of the Act be removed.
The Committee also considered that it would be anomalous if libraries conducted for profit were permitted to copy under the libraries and archives provisions but archives that derive a profit were not. The Committee recommended that all the provisions in the Act permitting royalty-free copying by archives apply to all archives, whether or not they derive a profit.
The Committee has considered whether members of Federal Parliament should enjoy the same privileges they currently enjoy at the Federal Parliamentary library at State Parliamentary libraries, and whether State Parliamentarians should have similar privileges in parliamentary libraries other than their own. In considering this issue the Committee sought to strike a balance between the interests of efficient and informed government and any adverse effects on the interests of copyright owners.
The Committee recommended that the provisions dealing with the copying of works and subject matter other than works by parliamentary libraries, ss 48 and 104A, should be amalgamated. A majority of the Committee recommended, in effect, that the section should provide that copyright is not infringed by ‘anything done’ by an authorised parliamentary library officer for the sole purpose of assisting a parliamentarian in the performance of his or her duties. One member of the Committee did not agree that ‘anything done’ should include the reproduction or supply of material electronically.
The Committee considered the operation of the declaration system that requires libraries to make and retain declarations that the copying done complies with the requirements of the Act. No remuneration flows to copyright owners as a result of making these records. The Committee found that little if any inspection of these records was made by copyright owners or their agents. It also concluded that the possibility of the inspection of such record was unlikely to act as a deterrent to the making of infringing copies as it was improbable that a librarian or archivist would keep a record of their own wrong doing. The Committee therefore recommended that ss 49, 50, 51A, and 110B as well as the related provisions in s 203A to 203F and 203H(1) to 203H(5) be repealed.
A second issue considered was whether the scope of s 49 should be broadened to allow libraries to make copies for users for all purposes under fair dealing, including criticism and review, reporting news, and for giving professional legal advice. This approach was supported in submissions from libraries, the ACC and the Law Council. The Committee regarded permitting libraries and archives to perform copying for users for the purposes of research or study but not for other purposes as a restriction that should be removed. For this reason the Committee recommended that s 49 should be repealed and that copying by libraries and archives for users should be governed by the proposed fair dealing provision and the proposed quantitative test. The Committee also recommended that libraries and archives should be permitted to perform copying for users in all instances where users would be permitted to make the copy for themselves under the proposed fair dealing provision or under the proposed quantitative test.
Section 51A allows, in relation to a manuscript or original artistic work, copying to replace the work where the work has been damaged or has deteriorated, or been lost or stolen (a similar provision regarding the preservation of films and sound recordings is found in s 110B). A microform copy of the work may be made for another purpose, provided the original work is destroyed.
The issues examined by the Committee in relation to the operation of s.51A were whether libraries and archives should have to destroy the original where copies are made for a purpose other than replacement, and whether the ‘replacement’ or ‘back up’ copy can only be made once the work has deteriorated or has been stolen or destroyed. The Committee considered whether these provisions might not be overly restrictive and operate to the detriment of libraries and archives that are trying to preserve Australia’s cultural heritage.. The Committee also considered whether the provisions might be subsumed into the fair dealing provisions.
The Committee took the view that royalty-free copying of materials should only be available if the dealing can be considered fair and that this approach should govern the right of libraries and archives to copy materials for preservation purposes. Accordingly, it recommended the repeal of s 51A. If implemented, this proposal would also remove the requirement that a work be destroyed.
As a general matter of simplification the Committee considered whether the limited circumstances in which libraries or archives may copy or publish an unpublished work might be included in the concept of a fair dealing or whether the special provisions in ss 51 and 52 are better suited to the needs of libraries and users. The Committee concluded that it is unlikely that the copying or publication of a work could be considered a fair dealing. Further if users of libraries and archives are to continue to be able to copy and publish unpublished works in special circumstances, and if libraries and archives are to continue to be able to copy such works for users, then ss 51 and 52 should be retained in the Act.
The Committee also considered a number of additional specific issues related to the digital environment. The Committee asked whether the Act should make provision for libraries and archives to make royalty-free digital copies which could be accessed electronically by users from within or outside libraries. It also asked whether libraries and archives should be permitted to supply digital copies to users and other libraries in response to a request for material. In both cases the Committee asked what limitations if any might apply to such dealings.
The Committee noted that in its report on Computer Software Protection it recommended that libraries and archives be able to make royalty-free digital copies (including electronic transmission of a copy stored in electronic form and the loan of a digital copy of a work on a carrier such as a floppy disk). It also noted that in approving the introduction of a new right of communication to the public the Government had decided that, at the request of a user, libraries should be able to make and supply a digital copy of a work on the same terms as they now can make a hard copy. The Committee expressed the view that libraries and archives should be able to make digital copies in response to a user’s request of both works and subject matter other than works in the circumstances contemplated by ss 49 and 50, if such copying comes within its proposed new fair dealing provision. It noted that such copies should not be used for any other purpose than to supply the person who requested the copy.
Generally libraries and educational institutions supported libraries and archives making digital copies available for browsing by users. However, this was opposed by CAL and the APA on the basis that the new digital technology created a ‘new paradigm’ and that viewing materials on screen would soon become the main method of exploiting a work. The Committee noted that the digitisation of copyright material held in the collections of libraries and archives may be permitted in limited circumstances under its proposed fair dealing provision. It appears that this is the reason that a majority of the Committee recommended no special provision be included in the Act to permit libraries and archives to digitise copyright material held in their collections for the purpose of making copies available for browsing by users.
The Committee also noted that the Government has stated that libraries and archives be permitted to give users access to materials they hold in a digital form on the basis that such access is confined to browsing (ie on terminals from which it is impossible for users to copy or download the material). To the extent that such materials may be made available without reference to fair dealing principles the Government’s proposal is broader than that recommended by the Committee.
In its report on Computer Software Protection the Committee had recommended that s 39A of the Act be extended to apply where a work stored on a library or archives database is made available to users by display on a computer terminal. Section 39A provides a limited immunity from liability from authorisation of copyright infringement where a library or archives displays a notice, on or near a photocopying machine, warning of the limits of the fair dealing exception. In accordance with its view that, where appropriate, works and subject matter other than works should be treated consistently, the Committee considered that the provision should apply to subject matter other than works and that it should also be technology neutral. The Committee therefore recommended that s 39A be extended to apply where any copyright material in the collection of a library or an archives is accessible via a computer terminal made available to users.
The Committee sought comments on the miscellaneous exceptions scattered through the Act that were not picked up in its issues papers. The Committee examined 40 miscellaneous provisions in the Act to see whether each of the individual provisions are necessary, or whether they might be subsumed within its revised fair dealing provision. It is not possible to go through each of these provisions in this paper. The reader is referred to Chapter 8 of the Committee’s report for the detail of the recommendations.
However, at a more general level, the Committee noted that the organisation of the miscellaneous provisions is confusing and recommended that all miscellaneous provisions be organised within one part of the Act. The Committee also noted that more difficult than the issue of the organisation of the various provisions is issue of their substantive justification. In seeking to simplify the provisions, the Committee sought to determine which might clearly fall within the Committee’s revised fair dealing provision. These it recommended should be repealed.
In summary, those provisions are ss 65, 66, 67, 68, and 69 (which deal with sculptures and certain other works in public places, buildings and model buildings, incidental filming or televising of artistic works, publication of artistic works and artistic works transmitted to subscribers to a diffusion service). The Committee also recommended the repeal of s 73 (reconstruction of buildings) and s 110(2) (public performance of works contained in old films).
The Committee also identified two other categories of exceptions. Namely, those where there may be some uncertainty that the activity would be considered a fair dealing, and those which exempt an activity from constituting an infringement of copyright as a reflection of government policy. In relation to these two categories of provisions the Committee considered that these provisions should be retained.
When considering simplification of the educational copying provisions the Committee examined the background to the educational copying provisions and noted that the submissions it had received did no make out a case for change to the general approach taken in the Act. Accordingly, the Committee confined its recommendations to simplifying the existing provisions.
Some of the specific issues the Committee sought comment on are:
• structural changes to simplify the Act
• specific sections of the Act, including the definition of ‘educational institution’, s 28, s 44, and s 200, and
• copying under both Parts VA and VB.
There was universal agreement that the educational copying provisions should all be included in the one part of the Act. The Committee has recommended that some of the provisions of both Parts VA and VB should be combined to eliminate unnecessary duplication.
The Committee also asked if some or all of the provisions might be moved into the regulations. Interestingly, most submissions the Committee received on this issue were opposed to this approach. Concern was expressed at the need to look in two places to ascertain the law, and there was a general concern that regulations could be altered with greater ease in response to lobbying by interests. The Committee did not consider the second concern to be valid. It noted that the very point of regulations was to enable detailed provisions of a technical nature to be more readily updated and that some of the provisions of the statutory licensing schemes are of the kind that would appropriately be placed in regulations.
The definition of ‘educational institution’ in the Act is extraordinarily detailed. It is set out in s 10(1), and further expanded in ss 10A and s 153L (of the Copyright Amendment Bill 1997). Overall the definition occupies nearly four pages of the Act. The Committee recommended that the definition be omitted from s 10 of the Act and that s 10A be repealed.
Section 28 provides that the performance of works, sound recordings and films in the course of educational instruction is not regarded as a public performance. The section is presently limited by allowing the audience to be only teachers or students or other persons directly connected with the place where the instruction is given. The Committee considered whether, as submitted by educational interests, that audience should be expanded to include students’ parents. However, it concluded that to do so would bring school concerts and performance recitals within the provision and eliminate the need for a licence from the copyright owner in such instances. Such an extension was considered inappropriate by the Committee as it took the view that performances to an audience that includes the students’ parents should be regarded as being made to the copyright owner’s audience and should be treated as a public performance.
Section 44 allows short extracts from works to be included in collections to be used by a place of education. The right is heavily circumscribed and was included in the Act prior to the inclusion of Part VB. The Committee noted that, because of the limited circumstances in which it can be relied on, the provision is seldom used. Accordingly, the Committee recommended that the provision be repealed.
Section 200 permits the use of works and broadcasts for educational purposes in certain limited circumstances. Under s 200(1)(a) copying of materials onto a blackboard and by hand onto an overhead projector is permitted. It was submitted that the provision might apply to allow more than one copy to be made and that its application to activities such as reproduction onto computer disk were unclear. However, the Committee did not agree with this submission and, in the absence of evidence to that effect, considered it inappropriate to change the operation of the provision.
Section 200(1)(b) permits the reproduction of works as parts of examination questions. The Committee noted that copying under this provision did not appear to have a significant impact on copyright owners and that if the provision were subsumed by the statutory licence in Pt VA there was a real risk that the records kept under that scheme could jeopardise the confidentiality of the examination.
It was also submitted that the copying of sound broadcasts permitted under ss 200(2) and 200(2A) might be subsumed by the statutory licence scheme in Part VA. However, the Committee noted that s 200(2A) was retained when the statutory scheme was enacted and educational institutions said that they relied upon the provisions for making records of broadcasts. In the light of these considerations the Committee recommended that no change should be made to the Act.
In relation to copying under both Parts VA and VB, there was general agreement in the submissions that both parts should, as far as practical, be technology neutral. In this regard the Committee considered the need to extend the operation of Part VA to include narrowcasting, cable and satellite delivery of programs.
However, with respect to the operation of Part VB, while there was assertion of the principle that the copying licence should not be affected by differences in technology there was disagreement as to the implications of this for the licensing. Copyright owners submitted that the licence should be confined to print materials. The copying of works in an electronic form should require express permission and a negotiated payment. Educators wish to be able to treat copyright materials in digital form in the same way as print works and submitted that Part VB should be expanded to permit them to do this.
The Committee’s consideration of these issues was overtaken to an extent by the Government’s announcement that the Part VB licence is to be extended to cover some copying of works. However, detail of the proposal was not announced at that time. The Committee considered, to the extent that the Government’s decision was limited to the digital copying of print material, that the decision does not go far enough. The Committee was of the view that there was no reason for limiting the digital use of material to works in a print form. It also noted that the principle upon which the Part VB scheme is based seems not to require that such a constraint be adopted. For these reasons it recommended that educational institutions be permitted to use all copyright material in a digital form pursuant to a statutory licence requiring the payment of a royalty.
The Committee also concluded that its recommendation could not be implemented by a simple extension of Part VB. It identified two reasons. First, the Part VB licence is based on the copying of pages or identifiable parts of works (which the Committee considers is an approach that is incompatible with works in a digital form). Secondly, the present licence permits the making of multiple copies of copyright materials. The Committee noted that the principal means of distribution of digital materials is more likely through the educational institution making a single digital copy of the work which can be accessed electronically by students. This is a different concept to that contemplated by the licence in Part VB.
The Committee took the view that this issue would have to be addressed in the context of giving effect to the Government’s announcement regarding Part VB. For this reason it did not consider it appropriate to set out the details of such a compulsory licence in its report. Rather it brought its views informally to the attention of the relevant officers in the Attorney-General’s Department who were working on this matter.
The Committee’s issues paper identified four main issues relating to the copying permitted for handicapped readers and for the intellectually handicapped.
Those issues are:
• broadcasts by print-handicapped radio licensees
• copying of works for handicapped readers
• copying of copyright materials for intellectually handicapped persons, and
• captioning.
The submissions received by the Committee on these issues did not directly raise issues concerning the application or operation of these provisions in the online digital environment. Rather they provided mainly a mixture of comments on technical, and structural/presentational issues.
In relation to s 47A the policy issue considered by the Committee was whether the limitation in the licence provided in the Act to print-handicapped radio licensees should be broadened to other broadcasts and broadcasters. The Committee considered the effect of such a proposal on the circulation of national, regional, and local newspapers. It also considered the relevance of a scheme for the payment of equitable remuneration, and the possibility of requiring accreditation of programs for people with print disabilities.
The Committee noted the submission from the Australian Council for the Print Handicapped that radio for the print handicapped remains a readily identifiable form of broadcasting. The Committee took the view that to the extent that this was the case, the format of radio delivery of newspaper articles would not be appealing to many listeners other than print-handicapped listeners. Nor was it clear, in the Committee’s view, that the impact would be more significant on local newspapers than on regional or national newspapers. However, the Committee did not favour allowing the broadcast pursuant to s 47A of materials by broadcasters simply on the basis that some of the broadcasters’ audience includes people with a print disability.
The Committee also noted that it is possible for services for people with a print disability to be transmitted online. The Committee recommended that s 47A should apply in respect of sound broadcasts and other sound transmissions and the making available to the public of programs and materials only if the sole purpose of the service or program is to communicate to people with a print disability (as described in s 47A(11)(b)).
The Committee sought comments, in relation to the two schemes for copying materials for handicapped readers and intellectually handicapped persons, on whether the schemes might be done away with by merging them with the fair dealing provision. Those submissions to the Committee which addressed this point did not support the proposal. As an alternative the Committee considered the possibility of combining the schemes and whether a revised structure might incorporate the provisions contained in Schedule 6 of the Copyright Amendment Bill 1997.
The overwhelming response from both copyright-owner and user representatives was that the two schemes should be combined. The Committee recommended this as a worthwhile simplification of the Act.
Finally, in relation to captioning, the Committee received a proposal for a statutory licence for the preparation of captioned works to assist the deaf and hearing impaired. The Committee considered whether such a licence could be incorporated in a revised scheme addressing the needs of both people with print disabilities and those with intellectual disabilities. Such a proposal was supported by the Federation of Australian Commercial Television Stations. Accordingly the Committee recommended that its proposed revised scheme should also make provision for people with hearing disabilities. It further recommended that, regardless of whether the government decides to merge the two schemes, specific provision be made in the Act for people with hearing disabilities.
Part I of the Committee’s report on simplification of the Copyright Act represents the first major re-examination of the exceptions to the rights of copyright owners since the Copyright Act’s introduction. The Committee has sought to develop a fair dealing test that reduces the number of separate exceptions provided for in the Act. It has also sought to develop a model that is technology neutral. Both these objectives were imposed upon the Committee by its terms of reference. While it may be expected that some of the Committee’s recommendations will give rise to passionate debate within the copyright community, overall the report provides a sound basis for the Government to consult with interests on how such fundamental reforms to the Act might be introduced.
[∗] BSc (Hons), LLB (ANU). Secretary,
Copyright Law Review Committee Secretariat.
This paper is adapted from the
presentation of the same name delivered in Brisbane on 13 February 1998. It has
been updated to take
into account the publication of the CLRC’s report on
Part I of its reference to simplify the Copyright Act 1968.
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