Society of University Lawyers Limited
(ABN 22 606 266 693)
Level 1, The Chancelry (Building 10),
East Road, Acton ACT 2601
Phone: 02 6125 4394
12 November 2018
Copyright Law and Policy Section
Department of Communications and the Arts
By email:
Stakeholder consultation: Copyright Amendment (Disability Access and Other Measures) Bill 2016 Exposure Draft
The Society of University Lawyers Ltd (SOUL) is a not-for-profit entity whose membership is primarily comprised of in-house lawyers employed by Australian universities or their controlled entities. SOUL’s members provide legal services to their respective institutions on the full breadth of legal issues affecting the higher education sector. SOUL’s objectives include fostering and promoting the exchange of information relating to legal and other relevant matters affecting Universities and tertiary education generally, and enhancing members’ ability to represent the interests of their Universities.
SOUL is supportive of the reforms that are proposed in the draft Bill and is encouraged that these bring improvements to copyright law. SOUL endorses the submission made by Universities Australia and would like to make a few specific comments on the operational impact of the Bill on universities.
1.Statutory licence – copying by others on behalf of educational institutions
SOUL welcomes the simplification of the statutory licence provisions and the removal of the administrative conditions from legislation, thus providing increased flexibility for these to be negotiated with collecting societies.
SOUL considers that the redrafting of these provisions provides a suitable opportunity to introduce clarification on the following issues that have previously been raised by SOUL in its submission to the Australian Law Reform Commission under the Copyright and the Digital Economy review:
Scope of “educational purposes”
s10(1A) of the Act currently states:
“Without limiting the meaning of the expression educational purposes in this Act, a copy of the whole or a part of a work or other subject-matter shall be taken, for the purposes of the provision in which the expression appears, to have been made, used or retained, as the case may be, for the educational purposes of an educational institution if:
(a) it is made or retained for use, or is used, in connection with a particular course of instruction provided by the institution; or
(b) it is made or retained for inclusion, or is included, in the collection of a library of the institution.”
The educational function of contemporary universities extends beyond the provision of formal courses of instruction. Types of educational activities undertaken by universities include workshops or activities for high school students; public lectures; online or short courses not leading to formal certification. It is unclear if the statutory licence provisions extend to these. This uncertainty could be overcome by replacing “a particular course of instruction” simply with “education”.
Contractual terms vs copyright
It remains possible for rightsholders to impose contractual terms around usage of copyright material that are more restrictive than the rights provided under the exceptions or statutory licences under the Act. A breach of these terms may expose universities to action for breach of contract even if there has not been a breach of copyright.
At least in respect of statutory licences, this could be addressed by introducing an additional subsection under s113T of the Bill to provide that a term of a contract or licence is void to the extent that the term purports to exclude or restrict the application of the provisions under s113P.
2.Disability copying provisions
Definition of “person with disability”
SOUL queries whether the proposed new definition of “person with a disability” under s10(1) may be unintentionally limiting. It is possible for individuals to have difficulties other than reading, viewing or hearing copyright material (for instance, limitations in manipulating interactive elements of multimedia works). This could be avoided by harmonising the definition with key legal instruments such as the Disability Discrimination Act 1992 (Cth) or replacing the words “reading, viewing or hearing” with “accessing”.
Ability for institutions to rely on s113E
SOUL submits that s113E should be clearly expressed to be available not only to the individual with a disability, but to others undertaking a fair dealing for the individual. In the absence of a clear statement, it could be open for a rights holder to assert that the institutional exception under s113F precludes institutions from being able to use a work under a fair dealing exception (similar to the arguments raised under CAL v Haines). To avoid this uncertainty, SOUL submits that s113E(1) should be reworded to:
“A fair dealing with copyright material, by or for one or more persons with a disability, does not infringe copyright in the material if the dealing is for the purpose of the person or persons with a disability having access to copyright material.”
Technological Protection Measures (TPM)
In the absence of a statutory exception, existing TPM provisions prevent universities and persons with disabilities from relying on the new exceptions set out in the Bill. A broad right for educational institutions and persons with disabilities to over-ride TPMs would enable maximum benefit to be derived from these new exceptions.
3.Libraries and Archives
SOUL is supportive of the increased flexibility for preservation and research copying by libraries and archives under Part IVA - Division 3.
While most universities do operate central libraries or archives that are accessible to members of the public, universities may also hold collections of copyright works of cultural value or public interest in local organisational units outside of its central library or archives. For example, universities may have an Art Collections unit that curates artistic works donated to the university. These works would generally not be made accessible to the public, unless they form part of a public display.
SOUL submits that the proposed preservation provisions should be extended to archival collections that are maintained by an educational institution even if not made accessible to members of the public.
Summary
The changes proposed in the draft Bill provide welcome simplification to a complex area of law and will somewhat reduce administrative burden for universities. Nonetheless, SOUL would like to see the Government continue to take further steps to implement other recommendations made by the ALRC in its Copyright and the Digital Economy Report, including but not limited to, exploring the introduction of ‘fair use’. Further reform of the copyright regime in Australia will be vital to enable our universities to continue to progress and innovate in their educational, research and archival roles.
Yours faithfully
Kylie Gould
President
Society of University Lawyers Ltd
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