Copyright Bill edges closer to reality

Since February, when the Federal Government released what’s known as the Digital Agenda Bill, an argument central to Australia’s cultural and economic future has been played out around the corridors of power.

Sadly, but perhaps understandably, that argument has been ignored by most Australians. After all, copyright is an extremely complex area of intellectual property law, and marrying those complexities with an argument about the future can seem like an extremely abstract exercise.

Nevertheless, authors, publishers and other copyright owners have lobbied the government persistently about the Bill, as have representatives of copyright consumers such as libraries and the Australian Consumers’ Association. To say the least, it has been a spirited debate, which is ultimately about whether Australian creators will be able to sell their work online.

Copyright law allows knowledge-based businesses to market their work and allows creative people to make a living from their efforts. If the legislative framework is not balanced, Australian authors, publishers and visual artists who rely on copyright protection will not be able to compete internationally.

That is why the intention to establish a new right of "communication to the public" with this Bill is a legislative landmark in Australia, and represents very good news for the development of electronic books and journals.

Nonetheless, Copyright Agency Limited (CAL), representing thousands of authors, publishers, journalists and visual artists, was initially concerned that the draft Bill was too prescriptive. Essentially, we believed that if some of the draft provisions had been passed into law the legislation would have been seriously flawed, largely thanks to an inherent presumption that reproducing material in the digital environment is the same as in the print-based world.

However, anyone who has used digital material on their computers, whether obtained via the internet or uploaded from a floppy disk or CD, knows how different digital reproduction is from photocopying. These days, manipulating that content and/or sending it to multiple recipients is a "point and click" exercise, raising all sorts of issues about copyright protection and about access to information.

On 2 September the amended Bill was tabled in the House of Representatives, which immediately sent it to the Standing Committee on Legal and Constitutional Affairs for review. The committee is currently holding a series of public hearings to ascertain community response to the new Bill.

Several of CAL’s concerns have been addressed in the redrafting process, and CAL praises the Government for making these important changes in one of the most complex policy and legislative areas.

In particular, we applaud the way the Bill tabled last month narrows the draft Bill’s definition of "library" to include public libraries but not libraries in organisations which are run for profit. We are also happy to see significant qualifications to interlibrary transactions and to the use of devices designed to circumvent encrypted copyright works. In our submission, we urge the Committee to support the retention of these important changes.

Also significant is the fact that, despite arguments from Australian library representatives, comparison with US and European legislation indicates that the changes to the draft Bill move Australia into greater alignment with these important trading partners.

The Bill as it currently stands also moves Australia much closer towards meeting our obligations under International Copyright and World Trade Organisation treaties.

However, critical areas of the Bill remain unchanged. These involve a test of quantity to determine what is fair copying in a digital environment.

Copyright interest groups agree with libraries on the issue of fair access. For example, CAL has always supported the right of those with low incomes or those who live in remote regions to have reasonable access to the public library system. We also strongly support the rights of students and others to benefit from fair dealing provisions which allow for free copying for legitimate, defined reasons.

For example, it is fair for a student to copy an article without paying a copyright fee when researching an assignment, since it can be reasonably argued that the student would not buy the book or subscribe to the journal from which the article came. In other words, the student’s copying does not affect the market.

But how can it be fair if a profit-making company doing research to improve its retail product can copy a chapter from a digital or printed work, and not pay the rights owner by purchasing the work or paying a royalty fee? Copyright must be a business cost like any other.

Because the test of fairness relates only to quantity (deeming, for example, copying one article to be fair), the current copyright law does not distinguish between commercial and non-commercial copying. The problem is exacerbated in the digital world.

CAL holds the firm view that using a quantitative measure to decide what is fair in a digital environment is the wrong test. The correct approach is to look at the purpose of the copying and assess its effect on the commercial market for the work.

Applying this solution would continue to provide protection for traditional library users, keep Australia in step with the rest of the world, and protect the rights of creators to exploit their work if they wish.

The true measure of fair copying in the digital environment is qualitative, not quantitative, because digital publication allows people to consume and copy intellectual property in radically different ways to those allowed by printed works.

In short, both the market for digital works and related consumer behaviour are profoundly different to their print counterparts.

Determining whether an individual, or group of individuals, should have access to copyright works for free should depend on the proposed use of the work and whether that use affects the market for the work. This is the international Berne Convention test.

The Bill already contains a very good test of fairness in section 40(2). It uses the criteria noted above, and is in line with the "three-step test" provided in the Berne Convention.

The problem arises in the next section, 40(3), which deems the copying of 10%, a chapter or an article of a work to be fair in any research and study circumstances. Rightsholders have decried the introduction of this "deeming" provision into the digital environment. It is no longer a test of fairness.

If that section were removed, fairness would be determined by the type of use and its effect on the market, thereby protecting traditional uses and ensuring commercial copying includes the payment of a fee to the creator or rights owner.

The House of Representatives Standing Committee on Legal and Constitutional Affairs is due to report to the House in the week beginning 6 December.