August07

Firstly, apologies for the delay in getting this publication out. Hopefully this bumper ‘new exceptions’ edition, and the promise of an equally exciting next edition devoted to another area of the 2006 Copyright Amendments, goes some way to assuaging your ADA Intellectual Property Wrap-Up withdrawal!

This summary of recent IP (but chiefly copyright) happenings of relevance to Australia is published by email and on the Australian Digital Alliance website. If you have any suggestions as to what should go in the next issue, please let Laura Simes know by email: lsimes@nla.gov.au.

The second half of 2006 was a busy time for the Australian Digital Alliance, with intensive lobbying, consultations, and submissions made to the Australian Government on the Copyright Amendment Bill 2006.
The Copyright Amendment Bill was then passed 11 December 2006. Some of the key changes that were introduced are:

- New format-shifting, space-shifting and time-shifting exceptions
- New fair dealing for the purposes of parody and satire exception
- New provision for 'key cultural institutions' to make preservation copies
- New flexible dealing provision
- Some changes to existing exceptions
- New criminal offence provisions, and new 3 tiered system of offences
- Civil remedies and criminal penalties for circumvention of an access control Technological Protection Measure (TPM) and exceptions to the TPMs scheme
- Changes to procedures relating to the Copyright Tribunal.

This issue of the ADA IP Wrap-Up will look at the new exceptions in more detail. Following issues of the Wrap-Up will consider other aspects of the amendments in detail.

These new exceptions only apply to individuals for their private and domestic use. This means that institutions and other organisations are not able to take advantage of these new exceptions.

Before this amendment, anyone who taped a television program to watch later on would have been infringing copyright. This new section 111 allows individuals to record radio and television broadcasts without infringing copyright.

There are limitations on what individuals can do with the recording. For example they can’t sell, hire out, loan or show the recording in public. Individuals can however lend the recording to a household for family member for their private and domestic use.

These three new sections set out specific situations where individuals can ‘shift’ something they own from one format (eg hardcopy) into another format (eg electronic). It is a requirement in all these sections that the individual owns the material they are format-shifting. In all cases, once the individual has moved it to the other format, they don’t have to keep the original. They are not allowed to give, sell, or hire out the original to someone else. They can however loan it to a family or household member.

Books, newspapers and periodical publications can be shifted into any format that is different from the original format (s 43C). For example, an individual can scan a magazine article onto their computer, or can print a newspaper article out into hardcopy.

Photograph in a hardcopy format can be shifted to electronic format, and vice versa (s 47J). For example, an individual could take a photograph on a postcard they purchased and scan it onto their computer.

Videotapes in analogue form can be shifted to digital form (s110AA). Under this section an individual can shift a video or (other analog cinematograph film) to DVD (or other digital format) but not vice versa. Another limitation on this section is that an individual cannot shift from one digital format to another. It must be analog to digital.

AKA ‘the iPod provision.’ This provision allows individuals to take a sound recording, and make another copy of that sound recording for use on a device that plays sound recordings. The person must own original sound recording, and the device that plays the recordings. This provision means an individual can take a CD they own, and place a copy on their computer or mp3 player to listen to.

This means that an individual can now move their music onto their mp3 player or computer to listen to.

One limitation on this new provision is that it specifically excludes shifting recordings of radio broadcasts like podcasts and webcasts onto the playing device.

The fair dealing exceptions that were available before the 2006 amendments such as fair dealing for the purpose of research or study, or for criticism and review are still in place. The 2006 amendments introduced this new exception so that there will be no copyright infringement where the use amounts to fair dealing for the purpose of parody and satire (ss 41 and 103AA).These provisions cover use of literary, musical, dramatic or artistic works & sound recordings, films, sound broadcasts or television broadcasts.

In June this year we saw an example of where this exception could applied. The Australian cartoonist Bill Leak routinely depicts Kevin Rudd as Tintin. In June this year the estate of Herge (the Tintin creator) threatened legal action. After a minor legal tussle, Leak has continued to depict Rudd as Tintin, and it appears the solicitor’s of Herge’s estate accepted Leak’s parody would come under this new fair dealing defence. See here for further information

[5] New Preservation Provisions for ‘Key Cultural Institutions’ (ss51B, 110BA & 112AA)

These new provisions allow certain bodies to make up to three copies from the work for the purpose of preserving against loss or deterioration. The explanatory memorandum notes that intention of these new provisions is to widen the scope of the existing preservation provisions for copyright material that is of historical and cultural significance to Australia.

Currently these provisions only apply to libraries and archives that have the function of developing or maintaining a collection under State, Commonwealth or Territory law. Essentially this covers the National Library of Australia and State libraries but not other libraries such as university libraries, other educational and research institutions, and public and private libraries, which may also hold collections significant to Australia

These provision also allow the Attorney-General to prescribe further bodies who may then take advantage of these preservation provisions. The Attorney-General’s Department intends to publish guidelines on its website soon which will set out what characteristics of the library and collection will be taken into account when making a decision whether to prescribe the body.

The institution may make up to three preservation copies if an authorised officer is satisfied that the work is of historical or cultural significance to Australia. It applies to the following materials:

- Manuscripts
- First sound recording or unpublished recording
- First copy or unpublished copy of film
- Original Artistic work*
- Published work*
- Published sound recording*
- Published film*
- Published edition*

*For these materials the officer must also declare a copy of the work or edition cannot be obtained within a reasonable time, at an ordinary commercial price.

An issue to note with these provisions is that the commercial availability test also applies to electronic/born digital works, meaning that preservation of born digital works under these provisions isn’t possible unless it is no longer commercially available. This may be a problem where the format of the work is technologically obsolete by the time is it not commercially available. Libraries could consider the new flexible dealing provision in order to migrate born digital works to different formats in anticipation of technological obsolescence.

back to top

The Explanatory Memorandum labels this section “fair use” and says the purpose of 200AB is to “provide a flexible exception to enable copyright material to be used for certain socially useful purposes.”

The context for this section is that user groups like the Australian Digital Alliance made submissions in support of a US style “fair use” style defence. The Copyright Amendment Act 2006 did not introduce this broad style defence, but did introduce this new flexible dealing provision, which can operate like fair use. This provision may only be used if no other exception applies.

This exception can be used by (or on behalf of) libraries & archives, educational institutions and people with a disability that causes difficulty in reading, viewing, or hearing the material.

For libraries and archives, the use needs to be for the purpose of maintaining or operating the library or archives. However this is a broad test as it includes any service usually provided by a library, and encompasses internal administration of the library or archives.

For educational institutions, it needs to be for the purpose of educational instruction, which includes for classroom and remote teaching.

For a person with a disability it needs to be for the purpose of the disabled person obtaining a reproduction or copy of the material in another form, or with some feature, that reduces the difficulty caused by their disability.

The other steps all persons or institutions using this provision need satisfy are loosely based on the three step test which has in the past formed the basis for reaching international agreement about the scope of actions deemed not to infringe copyright. There is much interest in the impact of this element of the new flexible dealing provision and the ADA intends to develop further material on this in the balance of 2007:

Some possible examples of how this new provision might be used are for format-shifting by institutions, digitisation projects and cultural preservation by libraries and archives, electronic use of works for remote education, use of a compilation of film extracts for a class.

We are very interested to hear of any more possible scenarios where you think this provision may be used. Please share any examples or case studies you may have with us: lsimes@nla.gov.au.

back to top

[7] Channel Nine Loses TV Program Copyright Case

In the Federal Court of Australia, the Nine network claimed that IceTV’s online electronic program guide (EPG) was an infringement of Nine’s copyright in its own Weekly Schedule.

Justice Bennett accepted that copyright subsisted in each Weekly Schedule as an original literary work. Her Honour also found that copyright subsisted in the compilation of the Schedule as a whole. However, her Honour decided that Nine could not claim copyright for the time and title information for a single day of the week. While IceTV took slivers of time and title information, they also expended effort in compiling their EPG.

We will examine this case, and other recent case developments, in more detail next issue, however for further information, please see Justice Bennett’s summary of findings.

Yes, you can copy this publication. Feel free to send it to friends or colleagues, print it off or even archive it on your website provided that all text is included or, in the case of an excerpt, appropriate credit is given.