Copyright News - Further Changes to the Copyright Bill

The government have announced further changes to the Copyright Bill (pdf) and further amendments (pdf) in response to concerns by interest groups and the Senate Committee recommendations (pdf) on the Bill.

Unfortunately the government has made no significant changes to the highly restrictive TPM provisions.

The Bill was passed by parliament on 5 December 2006. It is waiting royal assent. The new provisions are expected to commence on 1 January 2007.

Time and Format Shifting Provisions

Although copies made under these provisions must be for ‘private and domestic use’, the Supplementary Explanatory Memorandum states that they do not have to be made or watched in a domestic setting. This means that when a video is made of a TV program to watch later, or a copy of a CD is format shifted to put on an MP3 player, these can be watched or listened to outside the home.

According to the Attorney General’s FAQs, the audience for the program can now be friends or family. Access to the material is not restricted to members of the household of the person who made the copy, as was the original intent of the provision. This may make the distinction between what is a private and a public copy, difficult to determine.

However any copies of broadcast programs made for educational purposes must still be processed through the Audio Visual Production Unit under the Screenrights Licence.

The provision relating to format shifting music has been broadened. The provision is now a private copying exception, as reflected in its heading “Copying Sound Recordings for private and domestic use”.

There is now no requirement that users must transfer music from one format to another. They can copy music from CD to CD or from an MP3 file on their computer to another copy on their mobile phone. The copying must still be for private and domestic use. No copies can be hired or sold.

The provision has also changed to allow more than one copy to be made, to enable the technical process of transferring MP3 format material. This means users can copy music from their CD collection to MP3 format for their ipod and their computer, without having to delete one or the other.

The limitation that the material cannot be listened to ‘in public’ still applies, so staff could not use this provision to make music available to students. Staff would still need to follow the terms of the music licence to copy or make material available for their courses.

Fair Dealing for Parody and Satire

This exception has been taken out of section 200AB, the copying provision for libraries, universities and disabilities, and placed with other fair dealing exceptions like research and study and criticism and review.

This is a big improvement because the fairness factors that apply to the use of this exception have had some judicial interpretation in Australia. Those factors are:

the purpose and character of the use
the nature of the item being copied
the possibility of obtaining the item within a reasonable time at an ordinary commercial price
the effect of the use on the potential market for, or value of, the work
the amount and substantiality of the part copied taken in relation to the whole work

These may be easier to interpret than the factors listed in section 200AB, which come directly from the Berne Convention and the Trade Related Aspects of Intellectual Property Agreement.

Fair Dealing for Research and Study

There was a drafting error in the new Bill that meant that the maximum that could be copied under this provision was one chapter or 10% of a work, even if it was out of print or unavailable. This has been amended so that there is still the option of showing that copying is fair, taking into account the fairness factors listed above under the section Parody and Satire. This means there should be no change to the way this provision is interpreted. The amendments to this section do not affect the status quo.

General copying provision for universities, disabilities and libraries

Unfortunately there has been no change to the section 200AB general copying provision. The factors to consider are still taken directly from the Berne 3 step test, namely:

the use must be a ‘special case’
the use must not conflict with a normal exploitation of the work
the use cannot unreasonably prejudice the legitimate interests of the copyright owner

The supplementary explanatory memorandum states that this provision could allow copying for a library or archive, where the copyright owner could not be identified or contacted. So the university may be able to use this provision when copying of orphan works is required.

The memorandum also says that this provision could allow transfer of material to another format where an educational institution wants to ‘continue using a teaching resource held in a form which has become obsolete and is not commercially available in a form appropriate for contemporary teaching’. This might allow the digitisation of the records, cassettes, U-matics and other obsolete format material held at Monash Library and in departments.

Caching Provision

The exception to allow copying for caching purposes has been clarified to ensure both active and passive caching are covered. This means that faculties will not have to remove material from their servers every semester, which was the earlier requirement of this provision.

Key Cultural Institutions Provisions

This exception has been broadened to allow 3 copies to be made of material for preservation purposes. However these copies can only be made for preservation. They cannot be made available for loan to students or interlibrary loan. It seems to defeat the purpose of making a preservation copy, if it is unusable. Presumably if the original is destroyed, you would be able to use the preservation copy – although the drafting of the section does not appear to allow this in its present form.

This might prove to be useful to university libraries, departments and archives in the future. There is a provision to allow the Attorney General to designate other institutions, such as universities, as key cultural institutions. This would require proving that we held collections of historical or cultural importance. This might include things like the Jewish Music Archive and the Rare Books Collection, as well as material held in the Monash Museum of Art. But there is no indication of what the process would entail. This will be outlined in Regulations in 2007.

Some Strict Liability Provisions Removed

The government have removed some of the new strict liability offences. This may have been in response to the increasing number of articles appearing in the media decrying common consumer activities, like recording a performance at a concert on a mobile phone, being subject to an on the spot fine of $1320 per offence or $6600 if taken to court.

The strict liability penalty provisions on possessing equipment to make infringing recordings of performances or other infringing copies have been removed. The offences of distributing an article online, communicating to the public, playing a sound recording in public, and possession of a recording of a performance for the purpose of distribution are no longer strict liability offences.

There are still equivalent summary criminal provisions for these offences, but it does mean that the offender would need to be negligent or reckless in committing the offence. This is a higher standard of proof and more appropriate for these kinds of offences.

For more information on how this might affect the university, see Changes to the Copyright Act – October 2006.