Greenleaf, Graham; Paramaguru, Abi; Bond, Catherine; Christou, --- "Legal deposit's role in the public domain" [2008] UNSWLRS 38

Last Updated: 12 December 2008

Legal deposit’s role in the public domain
Graham Greenleaf, Abi Paramaguru, Catherine Bond and Sophia Christou

This paper will shortly be available for download.

Abstract

One requirement for the effective operation of the public domain at the expiry of copyright in a work is that at least one copy of the work be available to the public for subsequent reproduction by anyone. In Australia, this requirement is satisfied for print works by ‘legal deposit’ provisions in federal law and that of various States. These provisions, however, do not apply to audio-visual works (now very often digital), nor to texts published in digital form. There is therefore no guarantee that a copy of a published digital work will be in a publicly accessible repository when its copyright expires.

In addition, if such digital works are increasingly only accessible through access control systems, or distributed with technological protection measures, it is possible that copyright in these materials may expire with no copy that can be accessed technically being available.

This Submission is a response to the ‘2007 Discussion Paper on the Extension of Legal Deposit’ published by the Australian Attorney-General’s Department, exploring the extension of the legal deposit scheme to include audio-visual and electronic material. The Discussion Paper does not specifically mention the importance of legal deposit schemes to the maintenance of a healthy public domain in Australia.

In the submission we suggest a number of ways in which a potential expansion of the legal deposit scheme may be drafted and implemented, in order to ensure that public rights in audio-visual and digital materials are protected, both during and upon the expiration of their copyright terms. The extension of the legal deposit scheme to audiovisual and electronic materials, is now a matter of urgency because of the extension of the copyright term by an extra 20 years. Following are some of the main recommendations we make.

There should be two criteria for inclusion of audio-visual and electronic materials in legal deposit: (i) For any materials (except free access materials on the Internet), if they are sold, or distributed for free, deposit by the publisher should be required under the same conditions as would make a person a ‘publisher’ in relation to print materials. This would apply to all materials sold on CD, DVD or other medium, or delivered via the Internet by any means other than the World-wide-web). (ii) All materials available for free access on the Internet should be included, and provision by that means should be considered to be publication. Depository institutions should be entitled to make copies of such materials for the purposes of legal deposit, without the publisher being required to provide a copy. They should be authorised by law to ignore robot exclusion protocols for this purpose. However, if the publisher uses any technical means to prevent the depository institution collecting a copy of the materials, a depository institution may require deposit of copies as with (i).

Publishers of any materials (except free access materials on the Internet) should be required to required to submit material in the best quality format in which it is provided to those to whom it is published. However, if the depository is unable to display the materials in the same way that these recipients can display or use the materials, it may require the publisher to either (i) provide software to allow such display or use; or (ii) provide the material in another format in which it can be read by the depository institution with no significant loss of functionality.

Where material is available for free access on the Internet, its provision by that means will normally satisfy the legal deposit requirements, except where the depository institution cannot download the material by automated means, in which case it will be entitled to require provision of the data in accordance with the previous paragraph. Both electronic and print versions of a work should be required to be deposited, if both are published.

Legal deposit should apply to broadcasts. The default position should be not that broadcasters have an obligation to deposit copies but rather that the repository has the right to collect copies from the broadcast itself. Depositories should also be given the right to require copies of broadcasts from broadcasters where they have not collected the broadcast when it was broadcast.

Depository institutions should have the right, within the legislative competence of the Australian Commonwealth Parliament, to require the deposit of materials hosted outside Australia which are published on the Australian (.au) county domain or created by Australians or otherwise considered to be of cultural significance to Australia.

Depository institutions should have the legal right to make copies of free access web sites (whether or not they are located in Australia) containing legal deposit materials for the purposes of the legal deposit scheme, and to make them searchable. The Copyright Act should confirm that depository institutions (and perhaps other search engine providers) are entitled to do this.

In relation to deposited materials in which copyright has expired, there should be no restriction on access and reproduction. No publisher should be able to impose any such restrictions as a condition of deposit. Steps should be taken to prevent TPMs imposing such restrictions.

In relation to materials in which copyright has not yet expired, on-site depository access should be permitted, for a single user. More liberal access should be provided to materials that are no longer commercially available. These forms of access should allow users to exercise rights of use of the materials allowed by the Copyright Act.

Depository institutions should be part of a national scheme to identify which materials they hold that are no longer protected by copyright, and should be entitled to require information to be provided to them at the time of deposit so as to assist them to determine this.

Consideration should be given to making searchable the full texts of all Australian legal deposit materials in which copyright has expired.

Consideration should be given as to whether the Copyright Act should allow depository institutions to make the full texts of deposited materials searchable, provided they only provide the minimum amount of contextual information in any search results (or confirm they may do so).