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Contents

Executive summary......

Introduction......

What is at stake in this review for the education sector?......

The stated policy objective: target piracy, not prevent legitimate uses......

What has changed since 2006?......

The criteria for creating new TPM exceptions......

Class of works......

Adverse impact......

Impairment of the adequacy of legal protection or the effectiveness of legal remedies against circumvention

Additional TPM exceptions requested by Universities Australia......

The review process......

1

Submission to the Review of Technological Protection Measure exceptions made under the Copyright Act 1968

Executive summary

This review of the exceptions for access control technological protection measures (TPMs) is of central importance to the Australian education sector.

Since 2006, when the Government last considered whether new exceptions for TPMs were warranted, the landscape has changed considerably:

  • The flexible exception in s200AB of the Copyright Act 1968 (the Act) was introduced with the stated intention of providing flexibility to allow copyright material to be used for educational instruction and other socially useful purposes. In practice, this new exception is being blocked by rights holders using TPMs. As increasingly more digital content is subject to TPMs, rights holders - not courts - are determining the scope of s200AB. This is preventing universities from complying with statutory obligations to ensure that sight and hearing impaired students have access to course content in formats that are accessible to them. It is also creating disincentives to the use of the most efficient ICT technologies by universities.
  • The educational statutory licence contained in Part VA of the Act was amended to permit educational institutions to copy and communicate the content of free-to-air broadcasts that have been available online by the broadcaster. Typically, however, broadcast content that is made available online will be subject to encryption that restricts access to the website of the broadcaster and prevents the content from being downloaded. Depending on the technology used, this encryption operates as a TPM, which means that educational institutions are blocked from using it in ways permitted by Part VA. As a result, universities are prevented from making full use of a statutory licence for which they are currently paying more than $4.5 million a year.
  • Technology has dramatically transformed the educational landscape. Content that only a few years ago was available in unprotected formats such as VHS for video and non-digital for books can now only be obtained in formats that are subject to TPMs. This has impacted not only on the ability of university teachers to make use of digital content in the course of teaching, it has also limited the ways in which academics and other university research staff (such as post-doctoral students) can use content for research purposes, and the ways in which students can incorporate content into class presentations and assignments. It is important to note here that we refer to uses that would be non-infringing if undertaken by research staff or students in reliance on their own fair dealing rights.

Universities Australia is seeking additional TPM exceptions to overcome each of the adverse impacts that are set out above.

In considering whether these additional TPM exceptions are warranted, Universities Australia urges the Government to have regard to the policy objective at the time that the anti-circumvention regime was introduced: to assist copyright owners to enforce their copyright and target piracy, not to stop people from doing legitimate things with legitimate copyright material.

Universities Australia also urges the Government to have regard to the special position of the education sector. This is relevant both to the question of what TPM exceptions are warranted as well as to the question of whether the legitimate rights of copyright owners would be undermined if further exceptions were granted. As we set out in this submission, TPMs are having a significant impact on the ability of universities and their students to engage in legitimate, non-infringing uses. As more and more content is made available only in formats that are protected by TPMs, copyright owners, not Parliament, are defining the scope of the copyright exceptions and limitations that were intended to benefit educational users. This is despite the fact that educational institutions have a long history of protecting and respecting the rights of copyright owners.

Finally, Universities Australia urges the Government to provide an opportunity for stakeholders to reply to comments that are made against requests that are contained in their initial submission. We are concerned that the process as outlined in the Department’s guidelines for the review, which provides for parties to make initial submissions by 17 August 2012 and to provide comments in support of or against other parties’ submissions by 5 October 2012, may not provide an opportunity for stakeholders to address arguments that are raised against them in the second round of submissions.

Introduction

Universities Australia, the peak body representing 39 Australian universities, acts as a consultative and advisory body for all university affairs. Universities Australia welcomes this opportunity to make a submission to the review of exceptions to TPMs.

Universities Australia fully accepts and supports the need to safeguard the rights of copyright owners and creators. University sector teachers (and students) are both users and creators of copyright material. However, Universities Australia is greatly concerned that the anti-circumvention regime in the Copyright Act 1968 (the Act) is hindering the ability of Australian educational institutions to deliver quality education to Australian and overseas students. The anti-circumvention regime is preventing the education sector from taking full advantage of the exceptions in the Act that are intended to benefit educational institutions and their students. It is also creating disincentives to the use of the most efficient ICT technologies by educational institutions. In short, TPMs have upset the balance that copyright was intended to achieve.

In our submission, a regime that safeguards the rights of copyright owners and encourages innovation is not inconsistent with a regime that acknowledges the special position of users; particularly education sector users. A flourishing knowledge economy is one based not only on the production and distribution of knowledge, but also on its use. This will only be achieved if control of copyright is a matter for balanced policy, and is not left to owners using digital locks to rewrite the copyright balance.

What is at stake in this review for the education sector?

The exceptions and limitations to copyright - including the flexible dealing exception contained in s 200AB of the Act, the educational statutory licences contained in Parts VA and VB of the Act, and the exceptions that permit fair dealing for certain purposes - are integral to striking an appropriate balance between copyright owners and copyright users.

Currently, the anti-circumvention regime delivers to copyright owners the means to prevent educational institutions and their students exercising the rights granted to them under the Act. Universities and other educational institutions cannot exercise their rights under s 200AB or under the Part VA statutory licence, and students cannot exercise their fair dealing rights, due to works being protected by TPMs. It is no exaggeration to say that the anti-circumvention regime has enabled copyright owners to use TPMs to rewrite the copyright balance. As we seek to illustrate in this submission, the anti-circumvention regime is having a very real adverse impact on the ability of educational institutions and their students to engage in legitimate, non-infringing uses of copyright works.

This is not what was intended when the anti-circumvention regime was introduced. In 2004, when the Joint Standing Committee on Treaties (JSCOT) considered the Australia US Free Trade Agreement (AUSFTA) that led to the introduction of the current anti-circumvention regime, it noted that it had received assurances that the Government would ensure that "no sector...will be disadvantaged" by the regime. The education sector received special mention in JSCOT’s report, with the committee urging the Government to legislate to protect “the rights of the universities, libraries, educational and research institutions to readily and cost effectively access material for academic and related purposes."

Universities Australia submits that it is imperative that the Government craft additional TPM exceptions that will give effect to this policy objective by restoring the effectiveness of the exceptions and limitations that are intended to be relied on by educational institutions and their students and ensuring that universities can take full advantage of the most efficient ICT technologies to achieve their educational objectives.

The stated policy objective: target piracy, not prevent legitimate uses

Universities Australia understands the concern of copyright owners to avoid piracy of their works. However, one effect of the anti-circumvention regime that was designed to address copyright piracy is that educational institutions and their students have been prevented from making legitimate, non-infringing uses of copyright material.

Universities Australia understands that this outcome was not intended when the anti-circumvention regime was first introduced. On the contrary, in oral submissions before the Senate Select Committee that considered the AUSFTA, the Department of Foreign Affairs and Trade (DFAT) assured Committee members that the proposed anti-circumvention provisions "are designed to assist copyright owners to enforce their copyright and target piracy, not to stop people from doing legitimate things with legitimate copyright material". The policy objective articulated by DFAT looks to the purpose of the user and the legitimacy of the use. Universities Australia submits that this stated policy objective should be given effect to and should guide the Department’s consideration of what additional exceptions for TPMs are warranted.

The current TPM exceptions, which were the result of extensive consultation and debate, largely reflect this approach. They treat educational institutions as a special case warranting special exceptions. Educational institutions are permitted to circumvent TPMs for the purpose of exercising their rights to copy and communicate works in reliance on the Part VB statutory licence. Such special treatment for educational institutions is, in Universities Australia’s submission, entirely warranted. In granting an exception to permit circumvention for the purposes of Part VB, the legislature rightly recognised that this would not create a 'loophole' that would facilitate the significant digital piracy which copyright owners feared. Rather, the exception permitting circumvention for the purposes of Part VB recognises that educational institutions are engaged in legitimate uses of copyright material, and that there is little if any risk that they will abuse this exception to engage in, or allow others to engage in, copyright piracy. That has been borne out since this exception was introduced in 2006. This is not surprising when one considers the checks and balances which are a fundamental part of the educational statutory licences and exceptions.

What has changed since 2006?

Since 2006, when the Government last considered the need for additional TPM exceptions, the following developments have occurred that, in Universities Australia’s respectful submission, warrant further additional TPM exceptions:

  • Firstly, the flexible exception in s 200AB of the Act was introduced. This exception was introduced by the Government in response to its review of whether Australia should have an exception based on principles of “fair use”. In material explaining the new exception the Government said that s 200AB was intended to “provide flexibility to allow copyright material to be used for socially useful purposes”, [1] and that it would “allow a court to decide ...whether a copyright owner is able to control [a particular] use”. [2] In practice, however, this new exception is being blocked by rights holders using TPMs. As increasingly more digital content is subject to TPMs, rights holders - not courts - are determining the scope of s200AB. We discuss the implications of this below in section 7.
  • Secondly, the Act was amended to provide that the Part VA statutory licence applies to the communication of the content of a free-to-air broadcast, by the broadcaster making the content of the broadcast available online at or after the time of the broadcast, in the same way as it applies in relation to the broadcast.[3] This allows educational institutions to also copy and communicate free-to-air broadcasts which have subsequently been made available online by the broadcaster. Typically, however, broadcast content that is made available online will be subject to encryption that restricts access to the website of the broadcaster and prevents the content from being downloaded. Depending on the technology used, this encryption operates as a TPM, which means that educational institutions are blocked from using it in ways permitted by Part VA. As a result, universities are prevented from making full use of a statutory licence for which they are currently paying more than $4.5 million a year. We discuss this further in section 7 below.
  • Thirdly, technology has continued to transform the educational landscape. Content that only a few years ago was available in unprotected formats such as VHS for video and non-digital for books can now only be obtained in formats that are subject to TPMs. This has impacted not only on the ability of university teachers to make use of digital content; it has also limited the ways in which their students can incorporate this content into class presentations and assignments. For a generation of “digital natives”, the limitations imposed by the anti-circumvention regime are resulting in an increasing disconnect between what technology enables and what copyright law permits. If a work is protected by a TPM, students are prevented from using any part of that work - however insubstantial - for incorporation into an assignment. It is important to note here that we refer to uses that would be non-infringing if undertaken by students in reliance on their own fair dealing rights. In its report on Simplification of the Copyright Act, the Australian Copyright Law Review Committee commented that “fair dealing is not a defence to infringement; rather it defines the boundaries of copyright owners’ rights”.[4] Those rights have been greatly expanded by the use of TPMs. We discuss this further in section 7 below.

The criteria for creating new TPM exceptions

In considering what further TPM exceptions are warranted, the starting point for the Department is s 249(4) of the Act, which implements Article 17.4.7 of the Australia US Free Trade Agreement(AUSFTA). Section 249(4) provides that the Minister may make a recommendation to prescribe the doing of an act by a person if certain criteria are satisfied, including that the doing of the act by the person is in relation to a particular class of works or other subject matter. The Department has published a Flowchart setting out the criteria that are relevant to its determination. It has directed parties seeking new TPM exceptions to specifically address how the exception does or does not meet the relevant criteria. In what follows, Universities Australia comments on each of these criteria.

Class of works

Universities Australia is aware that the “class of works” requirement has been interpreted narrowly by the US Copyright Office (USCO) in its review of TPM exceptions so as to rule out exceptions which are defined by a particular use or user group. This was on the grounds that the statutory language and legislative history of the US copyright statute did not provide support for classification on this basis. In our submission there is no requirement in the AUSFTA for the Department to be guided by the narrow approach adopted by the USCO. Nor would this be appropriate in the context of the Australian copyright legislative and regulatory regime:

  • Australia has a very different legislative framework for dealing with educational use of copyright. Unlike the US, in which the main exception to copyright is fair use, Australia has the purpose-based educational statutory licences contained in Parts VA and VB of the Act as well as the exceptions in s 28 and s 200AB of the Act. This difference between US and Australian copyright law and regulation was noted in 2006 by the House of Representatives Standing Committee on Legal and Constitutional Affairs in its Review of Technological Protection Measures Exceptions (LACA Report). [5] The LACA Committee said that “the USCO interpretation has no automatic congruence or weight with the Australian regulatory context”. [6] It is clear that the LACA Committee took the view that there was nothing in the AUSFTA that prevents Australia from taking a different approach to the USCO in applying the “particular class of works” requirement.
  • As was noted in 2006 by the LACA Committee, the Government indicated at the time of entering into the AUSFTA that paragraph 7(e) (viii) of the AUSFTA was intended to protect educational interests. This suggests that the purpose of the use must be taken into account where appropriate, and indeed we see that approach adopted in the introduction of the existing TPM exceptions in Schedule 10A of the Regulations. It is apparent from the existing TPM exceptions in Schedule 10A that the “particular class of works” can be defined by reference to works used by a particular type of user or for a particular use.
  • A narrow approach to the “class of works” requirement would undermine the principle of technological neutrality in the Act. It would also run counter to existing Australian copyright policy as reflected in the purpose-based approach adopted for other exceptions in the Act.

Universities Australia submits that defining the scope of the TPM exception by reference to the way in which the works are used (e.g. educational purposes), or the users of the works (e.g. universities), or the particular statutory licence or copyright exception for which the TPM exception is being sought, satisfies the "class of works" requirement.