Copyright Amendment (Disability Access and Other Measures) Bill 2016Submission (February 2016)

Kimberlee Weatherall,[*] Kathy Bowrey,[**] Michael Handler[***] and Isabella Alexander[****]

12 February 2016

This Submission provides comments on the Copyright Amendment (Disability Access and Other Measures) Bill 2016. In broad terms, we:

  1. Support the stated goals of the Bill, namely to streamline and simplify exceptions relating to access for persons with a disability, preservation, and educational use (the statutory licences and use in assessment and teaching), as well as the (well overdue) expansion of the online safe harbours and the removal of perpetual copyright for unpublished works;
  2. Are concerned that the Bill perpetuates and exacerbates the complexity of an already-unwieldy Copyright Act 1968;
  3. Have some specific comments regarding specific provisions within the Bill as outlined below.

Individually and collectively we have extensive experience teaching and researching in intellectual property law, including copyright law. In addition, we are also authors and creators of original copyright works and users of copyright materials in the course of teaching, research and publication. This Submission draws on our significant experience with, and published work on, various aspects of Australian and international copyright law.

Part 1 Relationship between the Bill, legislative complexity and other copyright reform

As outlined in Alexander et al’s Submission 99 to the Productivity Commission Intellectual Property Arrangements Inquiry,[1] Australia’s current copyright law is overly complex and already replete with examples of poor draftsmanship, leading to confusion and uncertainty. As a result, Australian copyright law is not, in the terminology of the Productivity Commission, effective, efficient, adaptable or accountable. Nor is it (in more legal terms) comprehensible, just or fair. This is true of the Act as a whole. It is also true in particular of exceptions. Adopting the Australian Law Reform Commission’s Recommendations to introduce a ‘fair use’ defence to copyright infringement, to introduce a list of illustrative purposes, and to repeal a large number of current exceptions (as set out in its Report No 122 (2013)) would be the best way to reform copyright law in line with these principles and to achieve the goal of ensuring copyright law maximises the well-being of Australians.

The Bill seeks to address certain well-known and obvious problems with the Copyright Act. There are three basic problems with the Bill:

·  It does not even begin to provide an adequate response to the many issues identified by the ALRC in its Report No 122, or to the ongoing concern among those who deal regularly with the Act over its incoherence.

·  With the probable exception of those parts of the Bill dealing with statutory licences, the Bill continues to adopt the approach which has led to the problems identified by the ALRC – namely, the attempt to draft specific exceptions to address specific issues identified by specific stakeholders rather than adopt an open-ended exception, such as fair use or open-ended fair dealing. Comments in this submission below illustrate the fact that, yet again, the attempt to draft specific exceptions simply results in opening up new questions about the scope of their operation, which remain unanswered; and

·  Ludicrously complex drafting that makes the Act incomprehensible and invites disputes.

We recognise and support the fact that there has been some attempt, in this Bill, to deal with certain egregious problems that affect particular stakeholders. We also recognise that there has been some attempt in the drafting to reduce legislative complexity and consolidate and simplify laws relating to libraries and archives. With no current timetable for more lasting and general reform of the copyright law, it is perhaps better to address egregious problems than leave them hanging. We therefore support passage of the Bill, at least as an interim measure.

We respectfully suggest, however, that amendments to the Bill along the lines discussed below would take the Bill closer to the recommendations of the ALRC and further reduce unnecessary restrictions and complexity and reduce the need for future changes. However, we would also strongly argue that, despite this Bill, the streamlining of Australia’s copyright exceptions through the repeal of many exceptions (including, quite possibly, the ones found in this Bill) and their replacement with fair use or open-ended fair dealing is the only way to modernise the Copyright Act.

Part 2 The Bill could remove needless complexity

Anyone who must deal regularly with the Copyright Act deplores its complexity. Unnecessary legislative complexity has real costs for businesses, government officials, educators and individuals who must spend effort to understand their legal obligations. Piecemeal reform often contributes to this problem. The bare minimum we should demand of amending bills is that they (a) do not add unnecessary complexity, and (b) carefully remove complexity where possible in those areas of the Act amended by the bill.

One source of complexity in the Copyright Act is the tendency to include different definitions of the same term in different parts of the Act. This bill offers two different definitions of the phrase ‘original form’ (proposed s 10(1), and the proposed insertion into s 54(1A)) and defines the phrase ‘copyright material’ in a way that is stated to apply to most, but not all, of the Act.

We think these are both instances of completely pointless over-complexity:

·  Original form: the definition of ‘original form’ (as having its ‘ordinary meaning’) proposed to be inserted into s 54(1A) only applies to Div 6 of Part III of the Act. ‘Original form’ is used precisely once in that Division, namely, in s 54(1)(a) in order to make clear that references in that Division to a musical work refer to both the musical work and to adaptations of the work. Rather than offer two definitions of ‘original form’, it would be far simpler to delete the phrase ‘in its original form’ from s 54(1)(a). The phrase ‘work or adaptation’ is commonly used throughout the Act without apparent problem. Alternatively, s 54(1)(a) could be rephrased as ‘a reference to a musical work shall be read as including a reference to an adaptation of the work’.

·  Copyright material: The Bill proposes to insert a definition of ‘copyright material’ into s10(1) which will apply to most of the Act – except Div 3 of Part VI and Div 2 of Part VII. This is presumably because there is already a definition of ‘copyright material’ applying to those two Divisions. The proposed and current definitions, while differently phrased, appear to cover almost exactly the same ground. The new definition proposed for s 10(1) defines copyright material as ‘anything in which copyright subsists’. The existing definition in s 182B(1) defines copyright material by giving a complete list of the various subject matters in which copyright might subsist (eg, work, sound recording, etc), with the qualification in s 182B(2) that ‘a literary work that consists of a computer program or a compilation of computer programs’ is not to be taken to be ‘copyright material’ for the purposes of s 182B(1). To our mind, the definition in 182B(1) should be repealed. Apart from the carve-out for computer programs, the only way there could be any difference between the current and proposed definitions is if we assume that the s 182B definition actually includes ‘copyrightable’ subject matter in which copyright does not, in fact, subsist (eg, a ‘work’ that does not meet the subsistence criteria under Part III). But that makes the s 182B definition a nonsense. The much simpler approach would be to introduce the new definition in s 10(1), to delete s 182B(2) and the current definition in s 182B(1) and replace the current definition in s 182B(1) with: ‘”copyright material” does not include a reference to a literary work that consists of a computer program or a compilation of computer programs’. No change to s 148 would be needed.

Part 3 Access by persons with a disability

Subject to the comments in Part 1 above, we support:

·  Repeal of s 200AB(4) and the present statutory licence for institutions assisting persons with a disability;

·  Creation of a fair dealing exception, applicable to copyright-protected material generally, for the purpose of access by persons with a disability which does not include a commercial availability test (but does consider the impact on the potential market for or value of copyright material); and

·  Creation of a free exception, applicable to copyright-protected material generally, allowing use for the purpose of provisions of assistance to person(s) with a disability.

We suggest however that the Department consider the following:

·  It is possible that the requirement that use under proposed s 113E be ‘for the purpose of one or more persons with a disability having access to copyright material’ could be interpreted as:

o  Requiring that use be undertaken by persons with a disability or their appointed agents;[2] and/or

o  Not extending to related uses including administration, storage, or transfer from one set of persons or one entity to another (purposes related to access but not directly involving access).

Doubt on these questions could be removed by adopting the drafting used in s 42 of the Copyright Act 1968, namely by requiring that use is ‘for the purpose of, or is associated with, one or more persons with a disability having access to copyright material.’[3]

·  s 113F is welcome but as currently drafted it may not address certain problems highlighted in the final report of the ALRC:[4]

o  The Bill maintains the commercial availability test which the Australian Copyright Council (and ALRC) identified as ‘pointlessly onerous’ in cases of material which is never likely to be made commercially available (for example due to age), and which may prevent ongoing use such as storage online for on-demand access;

o  The requirement that material cannot be obtained ‘in the format that, because of the disability, the persons with a disability require’ raises question whether:

§  The exception applies if material is available in the correct format but with TPMs incompatible with hardware or software (like screen readers) or without functionality equivalent to that available to persons without disability (such as navigation tools or the ability to bookmark or highlight text);

§  Submissions to the ALRC by Blind Vision Australia and by Vision Australia noted that, “Some publishers are making audio books available using synthetic voice rather than human narration. Many people find synthetic speech unpleasant to listen to and prefer to listen to a version with human narration” (Report No 122, para 16.15). If a synthetic version is available it may not be possible to rely upon the provision to produce a human narration.

§  The term ‘require’ imports a condition of necessity such that it is not sufficient that a given format is preferred.

These issues could be addressed by (a) removing the commercial availability requirement (or replacing that requirement with a consideration of fairness or market impact), and (b) requiring institutions to be satisfied that the material cannot be obtained ‘in the relevant format or with the relevant functionality’.

Alternatively, it would be simpler and more consistent with the thrust of the ALRC’s proposals to consolidate proposed s 113E and 113F into one fair dealing exception available to individuals and institutions. While we recognise that an exception not requiring an assessment of fairness (as s113F is presently drafted) may have some apparent appeal to institutions, the analysis above suggests that the attempt to ‘cabin’ a defined exception causes more problems than it solves. Institutional concerns about the uncertainty of a fairness analysis should be solved by other means (negotiated best practice guidelines and ongoing education and discussion).

Part 4 Libraries and archives

We strongly support the removal of pointless and problematic restrictions currently found in the provisions affecting libraries, archives and other cultural institutions. We strongly support:

·  the removal of numerical restrictions on preservation copying;

·  the fact that proposed s 113H allows preservation copies whenever material is in original form or where the required version cannot be commercially obtained;[5] and

·  the extension of preservation copying to a broader set of copyright subject matters.

As Bowrey pointed out in Submission 86 to the Productivity Commission’s Intellectual Property Arrangements Inquiry, the copyright issues in libraries and archives around preservation and access for the purposes of research are significant, cause waste of scarce public research resources, and relate to both law and, importantly, practice. Some of Australia’s important research libraries and archives lack the resources, expertise and confidence to properly assess where real copyright issues arise and default to a model which routinely denies researchers access to collections. In light of Bowrey’s evidence, as many restrictions should be removed from the copyright statute as possible. We doubt that this will cause any genuine prejudice to copyright owners, but if issues do arise, they can be addressed through negotiation or, if necessary, later legislative or regulatory action.

In particular, we suggest the Department consider the following:

·  We query whether it makes sense to restrict use of electronic preservation copies to ‘dumb terminals’ (s 113H(2)(d)). Does this mean that even library or archive staff cannot use preservation copies at their regular work computers?

·  We query why s 113J (research) is drafted differently from s 113H (preservation) in that s113H allows preservation where either copyright material is in original form or it is not available, whereas s 113J only applies to material held in original form. We can see no reason for this distinction. If, however, it is maintained then the definition of original form is clearly too narrow (it extends only to manuscripts and does not apply, for example, to first or early editions of works, which are just as important to research activities).

·  The Department should consider the interaction between ss 40/103C (fair dealing for research or study) and s 113J (use by an authorised officer for the purposes of research). Sections 40/103C do not contain any requirement that material be accessed or used on a dumb terminal – and indeed these sections positively allow copying by researchers where that copying is fair. We suspect, based on the experience outlined in Bowrey’s submission and from personal experience, that s 113J and ss 40/103C will be conflated in practice, such that researchers will only be granted access to material on dumb terminals and not allowed to make copies clearly contemplated by the Act. This argues against the inclusion of a requirement that research copies be used on dumb terminals under s 113J. There are better ways to address concerns about widespread dissemination of material (including through common practices of research libraries and archives of allowing access for persons who are members of the relevant library or archive or who acquire a researcher card).