16 Submission Thomson Reuters Updating Australia's Copyright Laws

Exposure Draft of the Copyright Amendment (Disability Access and Other Measures) Bill 2016

Submission by Thomson Reuters

12 February 2016

1.Introduction

1.1Thomson Reuters has been engaged in the publication of information for the academic, professional, government and corporate sectors for more than 100 years in Australia.

1.2By providing materials for course work and research, Thomson Reuters contributes to the education and professional development of lawyers, academics, accountants, tax specialists, financial planners, those involved in human resources and government, as well as many others. Through its publications, Thomson Reuters has helped to foster debate and free speech in areas of key legal significance in Australia. It has helped to order and develop jurisprudence, legal thought and commentary, which in turn contribute to ensuring certainty and accessibility of the law. By presenting the law in a structured and cohesive way, the work of Thomson Reuters saves professionals, academics, students and government employees significant time and in this way contributes to the overall efficiency and productivity in the relevant sectors.

1.3Through its very long-standing participation in the publishing sector, Thomson Reuters has acquired a keen appreciation of the challenges the industry faces. Thomson Reuters employs more than 500 staff in Australia, a substantial number of whom are engaged in publishing operations and the editorial process. Therefore, the viability of the industry is more than a mere abstract proposition. Thomson Reuters regards copyright reform – that is, changes to its ability to commercialise its products – with the utmost importance, particularly in the difficult environment in which the publishing industry finds itself currently.

1.4It is against this background that Thomson Reuters responds to the Department of Communications and the Arts’ consultation in respect of the Exposure Draft of the Copyright Amendment (Disability and Other Measures) Bill 2016 (Exposure Draft).

1.5The Exposure Draft contains six separate proposals. Thomson Reuters limits its comments to those which are of relevance to its publishing activities.

2.Disability access

2.1Thomson Reuters supports initiatives that enable use of the information that it publishes in an accessible manner. Thisincludes those members of the community with vision impairments or, for whatever reason, difficulty in accessing information. Thomson Reuters firmly believes that no person suffering from such a disability should be unreasonably deprived of access to information, for the sake of the creator’s copyright rights. Accordingly, subject to the following, Thomson Reuters thoroughly supports the initiative contained the Exposure Draft.

Thomson Reuters (Professional) Australia Limited
ABN 64 058 914 668

2.2Thomson Reuters notes that there are costs involved in providing material in a format accessible to people with vision impairments and respectfully submits that where a publisher undertakes the work involved in transcribing a work into a format that is accessible to people with access disabilities, that that transcription should be available at a reasonable commercial price. The cost involved should guide a determination as to whether such any such dealing is “fair” under the proposed exception. By protecting the value of the transcription, the law enables and encourages other transcriptions to be made. Accordingly, a fifth fair dealing factor should be included in the list of factors in proposed section 113E, such that it is in line with the fair dealing factors contained in sections 40 and 103C of the Act. Namely, it should be relevant to consider the possibility of obtaining the transcription within a reasonable time at an ordinary commercial price. To be clear, this is not in the slightest about treating a person’s disability as a new source of revenue; it is about promoting a vibrant and thriving supply of material accessible to people with access disabilities.

2.3Further, proposed section 113F deals with the institution, or the person acting on behalf of the institution, being satisfied that the material cannot be obtained. Thomson Reuters considers that the language used should be “reasonably satisfied”, so that the test is objectively scrutable.

2.4That said, Thomson Reuters is strongly in support of the amendment and considers the initiative to reflect very sound policy.

3.Preservation copies

3.1Thomson Reuters publishes works primarily used for research purposes, and therefore libraries comprise a significant component of its customer base. Thomson Reuters holds extensive digital collections of works covering virtually its entire publishing history, which means that users can easily approach it for licensed access. Thus any extension of the rights of libraries or archives in the proposed manner may, and likely will, affect Thomson Reuters’ revenue. A significant impact on revenue will in turn affect the amount that it (and similarly situated publishers) is able to invest in the publication of new content for research.

3.2It should be noted that Thomson Reuters already provides libraries and academic institutions with access to its content at a significant discount. It should also be noted that the interlibrary loan schemes means that publishers and creators lose out on significant revenue, because libraries do not each purchase a copy of the work.

3.3That said, Thomson Reuters considers reasonable the proposal to simplify and streamline the existing preservation provisions to allow libraries, archives and “key cultural institutions” greater flexibility in preserving their collections.

3.4However, Thomson Reuters considers that the scheme should apply only to libraries and archives open to the public, so to remain in line with what is presumably the primary motivation behind legislating this accommodation: namely, enabling public access to information. Thomson Reuters would also prefer that these provisions be limited to libraries that are purely public service institutions and not those that are part of a commercial organisation, even where the latter provide public access. This is because, in Thomson Reuters’ experience, public access is a very nominal part of a private or commercial library’s overall activity and should not skew the exception in favour of commercial organisations that would otherwise be required to pay a licence fee.

3.5Moreover, in section 113H(1), there is a limitation to the scope of the proposal. A library or archive must satisfy certain elements before the exception can be relied upon. The first element is mandatory: an authorised officer of the library must use the material for the purpose of preserving the collection comprising the library or archives (subsection (a)). The second element (subsection (b)) contains two options, at least one of which needs to be satisfied: (i) the material is held in the collection in original form; and/or (ii) the authorised officer is satisfied that a copy of the material cannot be obtained in a version or format that the authorised officer requires, consistent with best practice for preservation of such collections. Thus, there are three possible combinations under the proposal where the exception in s113H(1) applies:

(a)where the library or archive complies with (i) but not (ii);

(b)where the library or archive complies with (ii) but not (i); and

(c)where it complies with both.

3.6Thomson Reuters understands and accepts the first and third combinations, but needs more clarity on the second explanation – namely, where the library or archive does not hold an original, and is satisfied that a copy of the material cannot be obtained in a version or format that the authorised officer requires, consistent with best practice for preservation of such collection. First, how could it ever be the case that a library or archive is genuinely “preserving” its collection by copying a work that it does not hold in its original form? Secondly, if it is best practice to preserve a copy by storing a copy in a particular format (say, by digitising it) and the original copy is not held by the library or archive but obtainable on reasonable commercial terms, the library or archive should have to obtain the original and make a preservation copy therefrom. That is, if a hard copy book not held by the library is reasonably available, but the library wants to make a preservation copy – again, how a copy of a book not held could be described as a preservation copy is unclear – in electronic form, a library should not be able to do so without remunerating the creators of the work. This problem would be solved if the two elements in subparagraph (b) were each made mandatory (and it is not clear what problem not doing so was intended to obviate.)

3.7Further, for the sake of clarity, conventional copyright lexicon is preferable. “Works” (and, if necessary, “other subject matter”) should be used instead of “copyright material”; and reference to specific exclusive rights should be made, rather than referring to “use”.

3.8The authorised officer in proposed sections 113H(1)(b)(ii) and 113M(1)(d)(ii) should be required to reach a level of reasonable satisfaction, not mere satisfaction, so that the test is objectively scrutable.

4.Educational statutory licence

4.1Thomson Reuters understands that the proposed revision of the educational statutory licence scheme is the product of consultation between the education sector and the copyright collecting societies (on behalf of publishers among others) and is intended to modernize and simplify the existing agreements.

4.2In this respect, Thomson Reuters, as a member of the Copyright Agency, is broadly supportive of a scheme designed to meet these objectives. Thomson Reuters has not however seen the draft arrangements and is therefore unable to comment, except to say that it is concerned to ensure that those arrangements support the legitimate commercial interests of copyright owners. In particular, its online content is available to subscribers on standard commercial terms and all use that would not unfairly prejudice its commercial interests is permitted under that licence. It does not see a role for collecting societies therefore in permitting use of its online licensed material, although it continues to support the role of the collecting society in permitting incidental copying of extracts from its print works by educational institutions and third party digital content not made available via a subscription arrangement.

4.3It understands that the proposed arrangements are in no way intended to permit use that is expressly prohibited by licence agreements in respect of digital content and is supportive of that position.

5.Online exams

5.1Thomson Reuters understands the policy behind repealing the current subsection 200(1) of the Act, and replacing it in the manner proposed. Thomson Reuters has no significant concerns with it.

6.Safe harbour

6.1Thomson Reuters is surprised by the proposal to expand the safe harbour scheme in the manner contained in schedule 2 of the Exposure Draft, for three key reasons.

6.2First, the manner in which the proposal is made is troubling. In the current atmosphere of making copyright law more transparent and accountable, it is astonishing that Government would attempt to introduce such a contentious initiative in this manner. The Exposure Draft appears to address Disability Access and “other measures”, many of which are sensible uncontentious initiatives designed to update the Act. By containing the amendments in a second schedule to the Exposure Draft, and by barely addressing the proposal in its Guiding Questions, it appears that the Department of Communications and the Arts was attempting to avoid stakeholder consultations on this important issue. Given that there were numerous enquiries into the scope of the safe harbour provisions – in 2005, 2009, 2011 and 2014 – it is quite troubling that the Exposure Draft would provide no explanation as to what has occurred to warrant such an extensive amendment.

6.3Second, the timing in which the proposal is made is unfortunate. In particular:

(a)the copyright industries have had enormous difficulty in causing the carriage service provider sector to agree to an industry code, which is intended to regulate the current safe harbour scheme. A principal cause of this delay is that CSPs need not comply with an industry code unless one is in force. Agreeing to one, as envisaged by the 2005 amendments, places an extra layer of regulation on the CSP sector. Considering more than 11 years of negotiations have yielded no industry code, it would be extremely troubling if – as it would appear – the negotiations needed to begin afresh to incorporate the newly added sectors, included by the broader definition of “service provider” (such as educational institutions, search engines and bulletin boards.) Such an amendment would be especially frustrating, because the negotiations are reported to be at quite an advanced state; and

(b)the United States launched a wide-ranging enquiry into its safe harbor scheme on 31 December 2015. The Australian safe harbour scheme is intended to reflect the American scheme (and is a result of trade agreements with the United States). Thomson Reuters would consider it prudent to consider the findings of the American enquiry, as well as any changes made to the scheme consequentially, before making such changes in Australia.

6.4Third, the policy motivations behind the proposal are misguided. Thomson Reuters understands the safe harbour provisions to reflect accommodations made to the ISP industry where the control and oversight an ISP has over its users’ activities is negligible. The same can simply not be said of bulletin boards, search engines, educational institutions and whichever other (undefined) bodies will come to enjoy the protection that safe harbour offers. The degree of influence had by content hosts over the content that they host is markedly different from that had by internet service providers.

6.5Accordingly, Thomson Reuters is strongly opposed to the proposal. It should not be made.

6.6If, despite these concerns, Government proposes to proceed with the amendments, then it is Thomson Reuters’ view that:

(a)the amendment at least await the findings of the American review, and any consequential developments;

(b)the amendment be made in tandem with a corresponding amendment to provisions mandating compliance with an industry code if one is in force. Specifically, the authorisation provisions in sections 36(3) and 101(5) should be amended such that, if a Code is not in force, the service providers will be taken to have authorised infringements of copyright that take place by way of their service, once on notice, if they do not reasonably act to prevent the infringements. Manifestly, this would at once (a) encourage service providers to agree to what is by now an extremely overdue industry code; and (b) respect the rights of content creators in the meantime.

7.Conclusion

7.1Thomson Reuters appreciates the opportunity to comment on the proposal, and is willing to assist with any further aspect as required.

Thomson Reuters (Professional) Australia Limited
ABN 64 058 914 668

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Pyrmont, Sydney NSW 2009