Copyright News March – June 2006

Changes to copyright law

The Attorney General’s Department announced changes to the Copyright Act on 14 May 2006. They also released their response to the Phillips Fox Digital Agenda Review. The government rejected a broad US style fair use exception. Instead they will widen existing exceptions for cultural and educational institutions and include new exceptions for personal copying of broadcasts and time and format shifting.

1. Time and Format shifting for personal use

There will be an exception for format and time shifting for personal use of music, newspapers, books, TV or radio programs and movies.

This could have positive compliance aspects for the university.

Users will be able to format shift movies they legitimately purchased on video to DVD – this could make it easier to show a film in class.
Users will be able to copy vinyl recordings to CD or Mp3, or from CD to Mp3 as long as the original recordings are not infringing – this could make it simpler to access music by individual staff and students.
Users will be able to make a compilation recording of music, as long as they legitimately own the original recordings and they copy the tracks in a different format to the original – this could make it easier for staff to play a collection of music relevant to a class.

These are examples taken from the media release on the Attorney-General’s website.

However, there will be limits to these rights.

If staff or students own several CDs that they want to combine into one CD, they cannot do this because they are not shifting formats.
Users cannot format shift DVDs at all.
Users cannot share their music or film collection with others.
They cannot upload copyright material to the internet or make more copies of the material under these provisions.
Users cannot copy computer programs under the proposed changes.

Note: Staff will still need to contact the Audio Visual Production Unit if they want to use recordings taped from TV or radio. The home taping provisions only allow for playing the recording once, for your own use. Showing this in class would be an infringement. The Screenrights licence will remain the only method for recording broadcast material for teaching purposes.

2. Response to Digital Agenda Review recommendations

Proposed amendments arising from the Digital Agenda Review, relevant to universities are:

extending the anthology and insubstantial amount copying provisions to electronic formats (recommendations 9(iii) and 10)
allowing copying of broadcast material when it is re-broadcast on the internet under the Screenrights licence (recommendation 9(i))
combining the Part VA and VB warning notice (Recommendation 9(ii)) and
clarifying the liability for library staff under section 50 of the inter-library loans provisions (additional matters 3).

The Attorney General’s department have announced a new exception for national cultural institutions to be able to ‘preserve and provide public access to items in their collections of historical and cultural significance’. The understanding is this provision should apply to universities and state libraries also. It may allow Monash libraries, archives and galleries to digitise cultural material and make backup copies of fragile material.

3. Libraries and Educational Copying

The Attorney General also announced a new flexible dealing exception that would allow universities, libraries and other cultural institutions and people with disabilities to use copyright material for non-commercial purposes. This exception would also include use of copyright material for parody and satire.

This exception may not be as broad as it first appears. The Department has stated that ‘the new extended dealing exceptions will not apply to uses where an existing exception or statutory licence already operates.’ Many of the university’s compliance problems are based around the limitations of existing exceptions. It will depend on the final version of the legislation.

Technological protection measures

Some of the recommendations in the Phillips Fox Digital Agenda Report related to technological protection measures. These are devices built into electronic media that control access to copyright material. The Attorney General’s department stated that the recommendations under the Digital Agenda Review relating to technological protection measures had been overridden by obligations under the Free Trade Agreement with the United States. They have not provided any detail of how the recommendations about technological protection measures will be implemented under the Free Trade Agreement.

The Legal and Constitutional Affairs Committee of the House of Representatives presented a report in February 2006 detailing what exceptions to technological protection measures should be implemented under the Free Trade Agreement. The Attorney General’s department has not responded to this report yet.

This issue is important for universities because technological protection measures can be used, not only to prevent infringement, but to limit or block access to material that staff or students would be allowed to copy under the Copyright Act. Region coding is a contentious example. Under the Free Trade Agreement it is possible that all region free DVD players in Australia would have to be banned. This is why the report by the House of Representatives Committee recommended a wide range of exceptions to technological protection measures. If these exceptions are not implemented, students and staff may have problems in accessing material they need for teaching and research.

Orphan Works

Orphan works are copyright works where the copyright owner is unknown or cannot be located. I am interested in hearing from staff or students whose research or teaching has been affected by problems in reproducing relevant copyright material, because they could not find the copyright owner to get permission.

For example staff might have wanted to put photos up on a website, or include images in a published article, but there is no information about who the photographer/copyright owner is.

This information, which will be kept confidential, is to assist lobbying for an exception to copyright to allow use of orphan works, in situations where reasonable efforts have been made to locate the owner. Submissions that include concrete examples and statistical information on the problem will be more likely to succeed.

If you have any examples of orphan works problems, I would be interested to hear from you.

If you would like more information on copyright issues or have any questions about copyright, please contact me, Megan Deacon on 9905 5732 or university.copyright@lib.monash.edu.au or visit the copyright website at www.copyright.monash.edu.au/.