SIMPLIFICATION OF THE FAIR DEALING PROVISIONS OF THE COPYRIGHT ACT 1968

Updated 15 August, 1997

The following comments on the CLRC's issues paper, 'Simplification of the FairDealing Provisions of the Copyright Act 1968', are offered on behalf of the Council of Australian University Librarians.

University Libraries represent by definition users of copyright, and are interested in the dissemination of information, knowledge and ideas. However, many library staff and library users are also producers and consequently owners of copyright material. It is therefore of benefit to CAUL for the Copyright Act to provide a balance between a fair return to authors and reasonable access for users.

The issue of fair dealing is central to the dissemination of knowledge in the use made of copyright works. In the present environment of attempts to simplify the current Copyright Act it is important that exceptions under copyright law are not reduced. The addition of flexibility through the adoption of a single fair dealing provision would enable the application of the Act in the environment of rapid technological change.

When considering the balance between the rights of copyright owners and copyright users it must be remembered that in order to produce their works copyright owners benefit from the provisions which enable them to build on the works of others, without payment and without fear of litigation.

Discussion Paper Item 7

The underlying philosophy of the current act strikes a reasonable balance for producers and users. Any shift in the balance would have unanticipated effects on research and on copyright owners themselves. It is therefore recommended that in any attempt at simplification of the Act the fair dealing provisions already in place should not be reduced.

Discussion Paper Item 9

It is unlikely that the extension of provisions in a quantitative way would address the owners perception that 'provisions are abused'. The introduction of Statutory Licences in the education sector has addressed this issue to the benefit of both owners and users to a large extent.

The introduction of the words 'such as' prior to specifying circumstances e.g. research and study, would increase flexibility, without the necessity to specify further provisions.

Discussion Paper Item 10

The quantitative test provides valuable quidelines for users in the print environment. In print publishing the logic of a journal issue as a compilation of articles produced periodically, and the book as a single entity to which a chapter, article or 10% can easily be applied does not translate to the digital environment. However as print as a major format is unlikely to disappear, the retention of the quantitative test remains appropriate. It may be more suitable to locate the quantitative measures in regulations or guidelines. The application of the quantitative test to the digital environment presents some difficulties. Changes in publishing, where the article or a website becomes the unit of publication has changed the delivery mechanism, particularly in the academic sector.

Discussion Paper Item 11

The reintroduction of the word 'private' before study is a backward step and increases the restriction on users. This is in opposition to the view that exceptions under the current Copyright Act should not be reduced in any simplification process. In addition, limiting fair dealing in this manner would affect universities engaged in joint venture research leading to commercial exploitation of their discoveries, although the statutory licence scheme would assume reasonable returns to copyright owners in these cases.

Discussion Paper Items 12 and 13

The simplification of the Australian law along the lines of the US law has advantages of added flexibility. The concatenation of "works" and "subject matter other than works" into a single category enables broader application of the Act. The use of developing technologies is hindered by the lack of flexibility of the current Act and while a technology neutral act may not be possible the ability to do such things as 'time-shifting' of home video copying within the scope of the Act would be advantageous. Multi-media is developing rapidly and encompasses a variety of formats which a single provision would make available utilising the same conditions for each.

Increased use of technology should not be seen by copyright owners as an opportunity for users to breach copyright, but as an opportunity to further disseminate their works. The technology which allows the increased dissemination will also provide improved reporting and control functions regarding use.

Discussion Paper Item 14

As mentioned previously, the retention of the quantitative test is recommended as a widely acknowledged limitation for copying of print material and should be maintained as such.

Discussion Paper Items 15, 16, 17

Defining the exact limits of fair dealing in an environment of continuing change is an impossible task. The adoption of a single provision along the lines of the US would provide flexibility to cope with change and the addition of regulations or guidelines including quantitative tests would provide the framework for use. The inclusion of indicative examples is problematic as complications of interpretation are likely to occur.

Summary

To summarise the CAUL response to the issues paper,

  • the single provision along the lines of the US section (with exclusion of the references to teaching which are dealt with differently in Australia) is supported.
  • the retention of the quantitative test as applied to print materials is supported in regulations or guidelines
  • if the Act remains similar to its current form then the inclusion of "such as" before the specific purposes of research or study, criticism or review, reporting news, professional legal advice and judicial proceedings is recommended
  • the reintroduction of "private" before "study" is strongly opposed.

The principle of fair dealing, particularly for the purposes such as study and research, is integral to the operation of universities and university libraries. The Council of Australian University Librarians appreciates the opportunity to provide comments on the CLRC Simplification of the Fair Dealing Provisions of the Copyright Act 1968 issues paper.

Submission prepared by
Evelyn Woodberry
Director, Information Services
Bond University
Gold Coast QLD

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