Journal of Law, Information and Science
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Michael Fraser [∗]
Our current copyright laws cannot be applied to new technologies and methods of reproduction. The current rules do not provide adequate protection for digital works, and further, probably do not fulfil Australia’s international obligations under the Berne Convention.
This problem can be solved, and the author suggests the following possible solutions: implementation of a system of voluntary licensing; statutory licensing; imposition of a levy on copying equipment; simplification of the fair dealing provisions; and digital copyright management. Methods of digital copyright management include encryption, digital signatures, secure co-processors, software/hardware access controls and smart cards.
Fair is foul and foul is fair, as the three cyberpersons said to Macbeth.
There is a common misconception in the community that digital copying is fundamentally no different to older analogue forms of copying. Following this assumption, many argue that our current copyright laws can simply be applied to new technologies and methods of reproduction. This is not the case, particularly with fair dealing and library exceptions.
Copyright Agency Limited (CAL) firmly supports the principles of copyright protection as outlined in the Berne Convention, the exclusive rights of authors and the criteria of exceptions to the authors’ rights. These principles are solid, just, and should be the foundation of any nation's copyright laws. Berne identifies the right balance between the interests of rightsholders and users, while at the same time dealing fairly with the issue of equity in access.
In supporting effective copyright law and practice, CAL is not just protecting the economic interests of rightsholders. Users of copyright material, such as libraries and educational institutions, claim to be using copyright law in the public interest. CAL also bases its work in the public interest. CAL's work allows for fair payment for the important new uses of copyright works, by copying. In protecting copyright, CAL is really protecting the commercial incentive—the incentive for Australians to create and invest in the production of original works—whether it be in the area of arts, sciences, literature, business or education. Quite simply, without the incentive of commercial reward, Australians will not continue to create the number and diversity of original works which the community needs.
Just as CAL supports the production of original works, it also fully supports fair access to these works, by all means. Sometimes it is necessary or convenient for users to copy works, and we recognise that copying is an integral part of how copyright material is utilised. The copying of copyright material plays an important role in communications, especially in the spheres of libraries and education. However, these forms of access to works should not all be free. It comes down to a matter of balance in copyright, or more specifically, how to apply the balance correctly.
Digital copying is fundamentally different to analogue copying. Not only is the process different, but it also has vastly different consequences. Although the principles of Berne are sound, when applied to analogue copying practices they do not yield the same answers as when applied to the digital environment. Digital-based and paper copying are different, and one cannot just simply apply the old rules to a new set of circumstances. What is fair to do with photocopy machines, may not be fair in principle online.
When analysing copyright protection, one must look at the issue from two different perspectives:the principles and the legislation. If this is done in relation to fair dealing, it becomes clear that there is a conflict between the principles of Berne and how they are being applied to digital copying under the Australian Copyright Act. Let us look at practical examples of how Berne exceptions translate into legislation and practice. From this we will be able to gauge whether digital uses of copyright material are equitable and in the public interest. Are they fair or foul?
It is disappointing that educators and librarians claim to respect copyright, and then argue for very wide exceptions under fair dealing and the library copying provisions. There has been an ongoing debate between CAL and the representative groups of educators and librarians, who seek to include more types of copying and a vastly greater volume of copying within the fair dealing and library exceptions to copyright in the digital environment. This debate about exceptions from educators and librarians is misconceived. The wide free-use argument about intellectual property stems from a lack of respect for copyright from those who should be its greatest protectors. Copyright owners, educators and librarians should be natural allies to value and protect copyright. We should combine and lobby the government to protect the public interest and to fund educational institutions and libraries properly so that they can reasonably pay copyright owners for the new and wide-scale systematic copying of books and journals. We need together to encourage and reward creativity, production and distribution of works of the mind, to develop a vibrant and diverse market for works, rather than try to free ride on the backs of authors’ and publishers’ work and investment.
There is a public interest in access to works. But we must not forget the time, work, talent and money invested by the authors and publishers. When we obtain access to a work by copying, we are not just photocopying an article or reading a page of a book displayed on a terminal—we are using someone's intellectual property. We are using the work of others and in a market economy they need to be properly rewarded for the act by a reasonable payment for use. It is easy to forget the effort and resource that goes into the production of a book or journal. We may need to remind ourselves that writing and publishing is a livelihood for many. In any case authors and publishers should be paid fairly for the use of their work, just as we are paid in our employment or professions.
There are also some who argue against centralised copyright management, as they see it as a monopoly. Competition is vital to any economy, as it helps to encourage excellence in all aspects of a business. But there are also other values that need to be taken into consideration, values that are also in the public interest: cooperation, culture, aesthetics, and respect for the work of others.
The quality of debate between CAL and users has been degenerating. This is of benefit to neither side and does nothing but devalue intellectual property. The institutions are facing increasing budgetary constraints, and as they are squeezed, their reaction is to employ new technologies to make new uses of the work of others, without payment. That approach is futile. We cannot solve the budgetary problems of universities and libraries by undermining the value of what lies at the base of our professions, intellectual property. To do so would be to betray our vocation.
Respect for intellectual property is lacking, and it needs to be built up, supported, and expanded. Otherwise we will continue merely to import creativity and innovation in the form of copyright works, patents and trademarks from abroad.
We need to look at copyright principles, and then see how the principles are applied in law. Article 9(1) of the Berne Convention relates to the right of reproduction generally, and the exclusive right of authorisation by authors.[1] Article 9(2) relates to possible exceptions for copyright protection.[2] Certain exceptions for free use are also stated in Article 10(1).[3] These exceptions were elaborated upon in articles 10(1) and 10(2) of the WIPO Copyright Treaty (1996).[4] The Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement also refers to limitations and exceptions in Article 13.[5]
It is these principles that we need to apply to analogue and digital copying practices and the exceptions to the exclusive rights of authors, in order to determine the consequences. Is the copying fair or foul? In order to do this, we need to take a step back. We need to first look at earlier paradigms and traditions of how copyright material was used.
‘And yet I'll make assurance double sure,
And take a bond of fate.’—Macbeth IV I
In the oral tradition of Medieval Europe, there were singers and minstrels, who were supported either by the community or the Court. Where they were supported by the court, they effectively sang for their supper. Alternatively they were balladeers whose work floated on the air among the people. The ballads in the oral tradition were passed on from one to another, always in recital, never the same.
In the monastic tradition works were copied by hand. This form of use had obvious physical limitations to reproduction. For example, monks could reproduce 4,700-5,500 characters per day. By 1917 office copyists could transpose 100 characters, or 12 lines, per minute. This equated to approximately 48,000 characters per day.
The physical limitations of copying by hand meant that it did not pose a threat to creators. With the introduction of the Gutenberg press copying of works vastly improved but there were inherent physical and financial limitations. Only printers and publishers themselves could copy in volume. More recently, lumastats, which were early forms of photocopiers, could only copy one page every four minutes. Again, neither of these forms of copying posed a serious threat to rightsholders’ livelihood.
Fair dealing laws derived from Berne were to allow limited free copying, but this limitation was on top of the existing physical limitations to copying. For example, when a scholar used to copy by hand a reasonable portion of a book, fair dealing laws were a convenience. There was no need to gain permission from the author or publisher, when taking notes or transcribing. With both the physical and legal limitations in place, it could reasonably be said that such copying was a ‘special case’, did ‘not conflict with a normal exploitation of the work’, and did ‘not unreasonably prejudice the legitimate interests of the author.’ Clearly these early traditions of copying were fair.
With the advent of the photocopier people started to effectively re-publish for themselves. What took hours to copy in years gone by could now be done in minutes or even seconds. Similarly, with recent developments in digital technology, the situation is even further exacerbated. It is now possible to copy large portions of works in vast numbers and transmit anywhere locally or internationally, with no degradation in quality, at very little cost. Vast numbers of perfect copies can now be made of works, without the previous physical limitations. There are many users who claim that despite these changes in technology, the fair dealing provisions should be applied in the same way. But when substantial portions of works are being copied, in large volumes, to be distributed anywhere in the world, and the physical limitations are lifted, the legal limitations of ‘fair dealing’ need to be narrowed.
In the oral tradition, copied works were not commodities. Patronage for artists was provided from the community or the State. However, we cannot rely on patronage alone in a market economy. We must encourage freedom, diversity and integrity of expression ourselves, in an open market for works of the mind. Government funding bodies can play an important and vital role, but their support only leads to the production of some types of works. In the worst case, patronage can even lead effectively to censorship and the production of only a restricted range of works. If creators are to continue producing works of all types, then they need to be able to make a reasonable living from their originality, by allowing for payment for use in a market for works. That includes the education publishing market.
Under current fair dealing provisions libraries and universities are copying works in ways that were not envisaged at the time of drafting the Copyright Act, and CAL would argue, that do not comply with Berne. While CAL recognises the important public interest in access to copyright material, and we do not propose any limitations in access, as new and more extensive processes are developed by which to copy and transmit works in high volume, we must ensure that there can be an equitable return to rightsholders for these new uses of their work. In the digital context, ‘access’ no longer means copying by hand, but rather downloading, reading, saving, displaying, manipulating, printing and transmitting works for further dissemination.
When analysing the existing fair dealing provisions in the Copyright Act, we need to take into account the changing uses of copyright material, and the impact these changes are having on the commercial markets that rightsholders rely upon for their works.
Computer screen display technology has developed to the extent that users are now able to access and read works, or parts of works, on a screen without having to download or save the work. It is no longer necessary that material be saved onto a hard drive or floppy disk, and in many instances, users are able to quickly and reliably obtain access to works from an on-line or off-line database located anywhere in the world. Although new forms of access such as this represent a valuable opportunity to rightsholders if correctly utilised, they form a fundamental shift in the use of copyright material—and a serious threat if not properly remunerated. If authors and publishers are not able to market their material in new ways because of fair dealing and library provisions that allow unremunerated copying of their works, then the most likely result will be a reduction in the creation, investment and production of works in Australia.
In recent years the methods of dissemination and reproduction of copyright material in digital form have been greatly improved and extended. Educational institutions at all levels are now seeking to ensure that access to copies of works is provided to students in a form that takes full advantage of the new reproduction and communication technologies available. Universities are increasingly seeking to digitally copy library and course materials, and to provide students with the means by which to obtain copies of this material in digital form at home, by accessing computer networks such as the World Wide Web.
Businesses are seeking to gain an advantage over competitors by the use of digital reproduction and communication technologies. It is now commonplace for employees to be able to gain access to information available on-line. Copyright material is being scanned into databases, and access provided for employees to read, download and print material.
Traditional reprographic copying technologies such as photocopying have by no means been replaced, but a significant and growing trend is emerging to indicate that digital technologies will soon be the favoured primary means of reproducing and accessing print material. For rightsholders that are utilising digital technology to distribute works, this will mean that new markets can be created for providing works to individual users at home, or to individuals in business. If fair dealing provisions and library provisions are interpreted so as to allow these types of non-commercial copying without payment to the copyright owners, that would stifle the development of new markets, and discourage creation, investment and dissemination of works in digital form by rightsholders.
Users of copyright material at present have a range of exceptions on which they can rely to justify the copying of material without the owner’s consent, and without payment. Parts of works may be reproduced under fair dealing, often for purposes that are both broad and ambiguous. Similarly, the library copying provisions, which presently supplement the fair dealing provisions, also allow users to obtain copies made by libraries upon request, again for purposes that are often questionable and without a copyright payment.
Currently statutory licences, such as those in Part VB of the Act, provide for certain copying by educational institutions for their educational purposes, in exchange for equitable remuneration. The purported extension of free copying of parts of digital works, or to the conversion of print material into digital form, could result in rightsholders being left with little opportunity for fair payment. If the fair use provisions were introduced, then in combination with other statutory exceptions already in existence, they would have a significantly harmful impact on the markets for works.
Under the current structure of copyright exceptions, rightsholders are unfairly obliged to subsidise the requirements of corporate bodies, educational institutions, libraries and individuals to gain access to and to reproduce copyright material. It is unreasonable to expect this to continue, especially when the means have now been developed to allow copies to be made under licence schemes administered by rightsholders' copyright collecting societies.
‘Double, double toil and trouble;
Fire burn and cauldron bubble!’—Macbeth IV I
Section 40 of the Copyright Act, which deals with fair dealing for the purposes of research or study, is too broad, both in its drafting and interpretation. Unlike other jurisdictions such as the UK, the provision is not limited to copying for private research or study. As a consequence, it is frequent to encounter corporations, institutions, commercial organisations and statutory bodies claiming that they may rely upon the provision to copy material as part of their business activities. This is a use of the exceptions that was not contemplated when the existing Act was drafted, or when the amendment to the Act was made in 1980 removing the qualification of ‘private’ research or study. Such use represents a significant loss of income to rightsholders for what often amounts directly, or indirectly, to a commercial use of their property.
Universities and other educational institutions already make copyright material available to students on-line, and aim to expand this method of dissemination. They argue that current fair dealing provisions provide a framework by which students could systematically access works for free. Unless fair dealing takes into account the differences between digital and analogue copying, then educational institutions could simply make a vast wealth of copyright material available on an electronic database, and encourage students to make their own copies.
By using this interpretation, the institution could claim that the copies of parts of works were made under the fair dealing provisions, and were therefore not remunerable. This scenario would clearly be inconsistent with the intentions of Parliament in enacting the statutory licence, and goes against the spirit of the legislation. If this rationale were accepted, the result would be to limit the amount of equitable remuneration paid by educational institutions under the statutory licence, and at the same time would seriously jeopardise the market for such works.
Free access provisions in future copyright legislation should state specifically that it is not to be relied upon for any commercial or governmental use of copyright material. If fair dealing provisions are retained, then the additional qualifications ‘private’ and ‘individual’ should qualify any copying for ‘research and study’.
Section 40(3) of the Copyright Act, which relates to deeming provisions, is also harmful to the interests of all print rightsholders. This provision cannot be reconciled with the common law assessment of fair dealing which emphasises a ‘case-by-case’ approach when assessing whether a dealing with a work is to be considered ‘fair’. Deeming a particular quantity of a work as being open for reproduction by users, without any assessment of the particulars of the dealing, acts to encourage users to systematically copy the substance of works.
Copying under section 40(3) is made even easier and more convenient to users in a digital environment, as works cannot be easily constrained by the physical notions of a chapter or article. It is increasingly more common for users that utilise digital copying to access only parts of works, as the entire work is often not required for their purposes.
CAL is currently licensing the production of CD-ROMs containing articles reproduced from certain Australian journals. These CD-ROMs are then sold to libraries who may use the CD-ROM according to a licence agreement. It appears that this type of product will be very popular. However Section 40(3) has the potential to allow the copying of articles from such a CD-ROM for free, despite the willingness of the rightsholder or their agent to provide a licence. Similarly, Section 40(3) has the ability to allow databases containing works, such as journal articles and chapters from books, to be copied onto electronic databases and accessed by users without fair payment to the rightsholder. The continued existence of section 40(3) in the digital environment has the potential to substantially undermine the market for individual journal articles and for books.
Section 40(1A), which relates to fair dealing by educational institutions for external students, also becomes a threat to rightsholders in the digital environment. When course material in digital form is supplied, it is irrelevant whether or not the student is classified as an ‘external’ student. Current technology makes it possible to treat all students equally, irrespective of where they may be located. Copies currently supplied to external students under section 40(1A) should, in CAL’s view, be included as licensed copies under Part VB. In any event, the section is located inappropriately within the structure of the Copyright Act, and should be reviewed. It would be more appropriate for the Copyright Tribunal to decide whether the circumstances of distance education students is a relevant factor in setting the rate of payment for certain copies made under Part VB.
In the digital environment, there is also scope for abuse of sections 41 and 42, which relate to fair dealing for the purpose of criticism and or review, and for the purpose of reporting news. There is a threat that increasingly users will be able to copy the most valuable portions of works and then use them for commercial purposes, rather than purchasing them. Digital technology will allow users to do this much more easily. Although these provisions are most likely to be used by the media, the commercial nature of this use should be a factor in the assessment of its fairness. The provisions should be reassessed on the basis that free exceptions such as these should not conflict with a normal exploitation of the work, and should not prejudice the legitimate interests of the rightsholder.
Furthermore, CAL would argue that section 43(2), which relates to fair dealing for the purpose of giving professional advice by a solicitor, has no place within a modern copyright regime. It is no longer in the public interest that certain professional groups should enjoy the privilege of making copies of protected works without the need to pay. Legal professionals generally copy frequently from works, both in print and digital form, and should pay for this use just like any other commercial organisation. In times gone by it may have been in the public interest for legal professionals to reproduce copyright material without cost, but the advent of convenient and efficient centralised licensing schemes means that this is no longer the case.
There has been much debate over whether browsing through works on a database is effectively the same as making a copy of those works. Use of works in this manner is ‘fair’, provided that it is for non-commercial purposes and involves the viewing of only a limited part of a work. We do not need legislation to give the right to test-drive a car, and nor do we need legislation when all you are effectively doing is browsing. However, the reading online of entire works, or even substantial parts of works, must be remunerable. Just because this type of use is ephemeral does not mean that it should not be remunerable. This use of copyright material would have a substantial impact on sales for authors and publishers, and goes against all the principles underlying section 9(2) of the Berne Convention.
As stated previously, the important role played by libraries in providing access to copyright material continues to offer great public benefits, and should be both fostered and encouraged.
In addition to the traditional roles of libraries in collecting, preserving, lending and facilitating reading, libraries are now also supplying packages of photocopied information to individuals and companies through their document delivery services. The growth of the document supply industry has led to a vast increase in the amount of photocopying and facsimile transmissions of works by libraries for dissemination to users.
The library copying provisions currently allow for unremunerated copies of copyright material to be supplied to users, under section 49, and other libraries under section 50, and they generally supplement the fair dealing provisions. Digital technology, however, allows for an almost limitless array of information services to be offered by the library. Multimedia packages can be created with works, and parts of works, from different sources being copied and then collated to suit individual needs. When libraries provide digital access, the copies will be perfect copies of the originally published work. These copies can be reproduced an infinite number of times with no loss of quality.
The system of inter-library loans and user requests can no longer be considered as a ‘loan’, but rather as the primary supply of original copyright material. Such provisions in effect allow libraries to assume the same role as a publisher, that is, to supply copies of works to the public. Should libraries wish to take on this role they should be treated, in this respect, as commercial users of copyright-based material, and should therefore be liable to pay copyright licence fees. The current library copying provisions such as sections 49 and 50 need to be amended to provide for voluntary licensing through the rightsholder or their agent. Alternatively, payment of equitable remuneration to the rightsholder could be made under a statutory licence with rates set by the Copyright Tribunal.
In Article 9(2) there is effectively a ‘three-step’ test to determine whether a work can be copied under an exception. The use must:
1 be a ‘special case’
2 ‘not conflict with a normal exploitation of the work’
3 ‘not unreasonably prejudice the legitimate interests of the author’
In our examination of the existing fair dealing provisions of the Australian Copyright Act, it becomes evident that both the increasing amount and quantity of photocopying deemed to fall under an exception, and the possibility of extension of these provisions to digital copying, are increasingly likely to conflict with Australia’s international obligations. In practice we often fail the ‘three-step’ test.
The changing delivery methods of copyright material in digital form has seen the transmissions of copyright material to ‘private’ individuals’ computers becoming a normal means of disseminating, and therefore a normal means of exploiting copyright material. The digital market is being stifled by free copying provisions, with a form of copying that is now far from a ‘special case’.
Even if it can be shown that the use does not conflict with the normal means of exploiting a work, which is doubtful, it is still necessary to see if there is unreasonable prejudice to the legitimate interests of the author. The question of what is unreasonably prejudicial is best examined in terms of lost sales or potential sales. It is highly likely that as rightsholders continue entering markets for digital products, current fair dealing provisions would lead to a substantial loss of sales, unreasonably prejudicing their legitimate interests. If Australia is to continue to claim compliance with Berne, then some significant changes need to be incorporated into the way we apply the Act. The public interest in access to works should not undermine the reasonable economic interests of rightsholders. Access to copyright works can still be ensured, but only if the fair dealing provisions are amended and applied in a scheme that provides for the payment of remuneration to rightsholders.
Access to works would not be hindered were existing fair dealing provisions replaced with a system of voluntary licensing. Users could obtain the permission from the rightsholder, their agent or exclusive licensee in order to reproduce the works. CAL is well positioned and among others can offer licences for the use of copyright material and to distribute remuneration to rightsholders. Rightsholders should be permitted to frame their own markets, or potential markets, for licensed copying for any purpose including copying for broad purposes such as research or study.
Many users are concerned that under a voluntary licensing system, permission could be denied by the relevant rightsholder or collecting society, or that permission to use material will be impossible to obtain if the rightsholder cannot be located. However, both rightsholders and users are now more accustomed to centralised licence schemes, and voluntary licences, than was the case 20 years ago. It is certainly not in the interests of collecting societies to limit access to works, as that is their primary function.
Similarly, users may be concerned that some rightsholders are not members of a collecting society and, as a consequence, may be difficult to locate. However, it is worth noting that in other jurisdictions such as Canada, schemes have been established to allow copying with payments made to collecting societies in certain circumstances even when the relevant rightsholder has not been located.
Furthermore, as an extra safeguard the terms of such voluntary schemes would still be subject to the jurisdiction of the Copyright Tribunal. CAL has made numerous submissions to the Government to this effect, and supports any intention of the Government to implement the recommendations of the Simpson Report, which include a recommendation that the jurisdiction of the Copyright Tribunal be extended to all of CAL’s voluntary licence schemes. Therefore, if a dispute were to arise, then the Tribunal would be able to hear the views of both users and rightsholders about the proposed licence. It could consider the access requirements to the copyright material included in the licence and examine the terms of the proposed scheme. If it considered it necessary or appropriate the Tribunal could then vary the proposed scheme or determine terms and conditions for the licence scheme.
As an alternative to voluntary licensing, access to copies of works for purposes in the public interest could also be framed as a statutory licence. At present, the current exceptions to the rights of copyright owners, including the fair dealing and library copying provisions, effectively operate as a statutory licence with no mechanism for setting a payment, if any, for that use.
It would therefore not require a great shift in the policy structure underlying the exceptions to establish a statutory licence mechanism for setting a payment by the Copyright Tribunal. The Copyright Tribunal could set rates based on several factors, including the public interest in ensuring that various classes of users have fair access to copyright works for certain purposes. A statutory licence also overcomes any difficulties that may arise where users are unable to contact a rightsholder in order to obtain permission to copy.
Another alternative is a levy which could be imposed on copying equipment such as photocopiers and scanners. Where the access cannot be monitored for practical reasons, the introduction of a levy on hardware would be appropriate. In some European nations, such as Germany and Spain, an equipment levy on certain types of copying hardware is a common method used to ensure that rightsholders obtain remuneration for the private copying of their works.
Again, the Copyright Tribunal would have the responsibility of determining the rate for a hardware levy, taking into account factors such as the location of the equipment and the purpose for which it was being used. Such a scheme would be relatively simple to administer through collecting societies such as CAL. The levy could be paid by users automatically on purchasing the equipment and distributed to rightsholders following a statistical analysis of the copying of works.
There have been some who argue that Australian fair dealing laws should be simplified akin to section 107 of the Copyright Act 1976(US). CAL would support such a move, but only with certain strict qualifications. The US provisions on fair use are very broad, as opposed to Australian fair dealing laws which are confined to certain types of uses. The transition to the US model would not be a simple process. The US provision codifies the law as to fair use as it developed in that country, and thus it could not simply be applied to the Australian Act. For example, the reference in the US provision to ‘teaching (including multiple copies for classroom use)’ and ‘scholarship or research’ could not be used in the Australian Act because of the existence of the statutory licences for educational institutions to use copyright material.
If the US model were adopted it would be vital that a simplified provision does not become a means for the expansion of copying allowed under fair dealing. A simplified fair use provision should apply the factors presently set out in section 40(2) to ascertain the ‘fairness’ of the dealing but extend them to all examples of fair use provided that Article 9(2) of the Berne Convention is recognised.
A broad fair use provision represents a danger to the legitimate interests of rightsholders that can only be balanced if the provision also makes clear that fair dealing is confined to special cases where the dealing is private, is not part of a commercial transaction, does not affect the right to normal exploitation of the work and does not affect the market for the work. Such factors would, for example, exclude the posting of works on databases over on-line networks such as the Internet and Intranets, as that would constitute a ‘public’ dealing with a work.
Factors applying to any fair use of works should make clear that a dealing with copyright material for any commercial purpose will be presumed to be unfair unless sufficient evidence is established to the contrary. ‘Commercial purpose’ should be given a wide meaning and include any copy made as part of a commercial transaction or in the course of employment. Such copying should be remunerated under almost all circumstances. For example, the mere fact of charging for a copy, as libraries do on a ‘cost recovery basis’, should be sufficient for that copy to be deemed to have been made for a commercial purpose.
Rightsholders are clearly concerned that in a digital environment they will lose control of their works. The potential for their work to be copied, manipulated and disseminated throughout the world is very real. In response to these concerns many national and international projects have been established to develop methods of digital copyright management and assess their effectiveness. Embedded information can be used to assist in controlling or monitoring access, prevent unauthorised manipulation or copying, to provide information on the rightsholders, and where appropriate, supply pricing information. The key technologies presently being explored as technological solutions to concerns of rightsholders include:
Encryption: coded information with public or private keys, either in the form of passwords or mathematical functions to decrypt the information.
Digital signatures: electronic means of embedding authentication information in the information itself. A variant of this is ‘steganography’ whereby a digital signature is embedded in a picture rather than in text.
Secure co-processors: use of computer chips to address authentication or access to information.
Software and hardware access controls: use of software envelopes that are associated with information thereby controlling access, (eg server modules that provide for metering or billing).
Smart cards: used to deal with payment and access concerns.
From a copyright management perspective, these technologies will facilitate identification, monitor access to use of works, and underpin the collection and distribution of fees to rightsholders. Since these copyright systems will have the capacity to collect and compile precise details about an individual’s use of works, it is essential that strict privacy principles are applied to the use of such data.
However, technological systems, no matter how complex or secure, can always be circumvented by a person with the skill, will, means and time. Digital copyright management systems are no exception. Some governments have already legislated to prevent the circumvention of such technical measures, but given the ease with which digital information can be transmitted across national borders, it is essential that such laws apply on an international level. Without such coverage, ‘copyright havens’ could develop in the same way that tax havens exist, and potentially damage the interests of rightsholders. If there is one weak link in the chain, then the international copyright system will only be as strong as that weakest link.
CAL supports libraries being used in traditional ways, and even for limited and fair copying. But once libraries cross the line and go into publishing and information broking, libraries must accept that they are publishing. This form of use is a business activity, and libraries must pay for the resources they are using, including the intellectual property. A book loan is just a loan. But copying and transmitting articles on a grand scale, without copyright payment—that is not fair. That unfairness is highlighted where libraries use the free copying provisions to provide document delivery services for which the libraries themselves charge a fee.
In the market economy in which we live, it seems that almost all library and educational services are now charged for in one way or another. We constantly hear that these charges are only on a ‘cost recovery’ basis, but if this is true, then why aren’t such services also taking into account the cost of intellectual property? Photocopier companies do not donate their photocopiers to educational institution or libraries for free, so why should authors and publishers donate substantial uses of their property. One only needs to go to the closed reserve section of any university to see copiers that are jamming with overuse. A lot of new jobs are being created by this new copying as part of the education process and there seem to be many who are benefiting—except those whose material is actually being used in these new ways.
CAL does not oppose access by copying of material protected by copyright, but the new uses must be fairly and equitably paid for. Rather than fighting over our respective slices of the funding cake, CAL and copyright users should join together in order to persuade government to properly fund educational institutions and libraries. We must both ensure that copyright is well protected, amended and applied, as without protection, creativity and integrity of expression suffer. We need to build up respect for intellectual property and persuade the Government to acknowledge our concerns. CAL and users should be on the same side of the copyright debate.
We must also consider the impact that a user-pays system would have on those that cannot afford to pay for their information. CAL does not advocate changes that would result in a society that is divided into the information rich and the information poor, and we wish to prevent a society where only those who can afford access can afford information and education.
Just as it is the duty of our government to ensure that all members of the community are provided with basic rights such as the ability to obtain food, housing, medical care and education, so too it is the government's duty to ensure access to information to everyone. There are various models by which such a subsidy scheme could operate, but the key point to note is that by protecting copyright in libraries and educational institutions, the government would at the same time foster the production and flow of creative works.
Agreement Between the World Intellectual Property Organization and the World Trade Organization (1995). World Intellectual Property Organization, Geneva, 1996.
Copyright Act (1968), Australian Government Publishing Service, Canberra, 1995.
ENGLISH, Jane & JACOBS, Kirti. Royalties and Payments: Why Pay for Copyright? What are Words Worth? Copyright Issues in Libraries: Global Concerns, Local Solutions, IFLA, West Yorkshire, 1996.
FRASER, Michael. Submission: Simplification of the Fair Dealing Provisions of the Copyright Act 1968, Copyright Agency Limited, Sydney, 1997.
WIPO Copyright Treaty (WCT) (1996) and the Provisions of the Berne Convention (1971) Referred to in the Treaty. World Intellectual Property Organization, Geneva, 1997.
WIPO Copyright Treaty (WCT) (1996). World Intellectual Property Organization, Geneva, 1997.
[∗] BA (Hons) (Syd), LLB (Hons) (UTS), Grad Dip Legl Prac (Woll), FAICD. Chief Executive, Copyright Agency Limited.
[1] 9(1). Authors of literary and artistic works protected by this Convention shall have the exclusive right of authorizing the reproduction of these works, in any manner or form.
[2] 9(2). It shall be a matter for legislation in the countries of the Union to permit the reproduction of such works in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author.
[3] 10(1). It shall be permissible to make quotations from a work which has already been lawfully made available to the public, provided that their making is compatible with fair practice, and their extent does not exceed that justified by the purpose, including quotations from newspaper articles and periodicals in the form of press summaries.
[4] 10(1). Contracting Parties may, in their national legislation, provide for limitations of or exceptions to the rights granted to authors of literary and artistic works under this Treaty in certain special cases that do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the author.
10(2). Contracting Parties shall, when applying the Berne Convention, confine any limitations of or exceptions to rights provided for therein to certain special cases that do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the author.
[5] (13). Members shall confine limitations or exceptions to exclusive rights to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder.
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