The Australian Law Reform Commission (ALRC) has released a discussion paper on Copyright reform. It is available here: http://www.alrc.gov.au/publications/copyright-and-digital-economy-dp-79 This discussion paper makes concrete recommendations as to how Australian copyright law should be reformed.
In this blog post we describe how the changes proposed are likely to affect the services delivered by archives.
Copyright primarily affects two services provided by archives: that of providing access to material in their collection, and preserving material. An extremely useful innovation by the ALRC is to separate the non controversial function of preservation from the controversial function of providing access.
The ALRC proposes repealing the current, unworkable, preservation provisions. Instead, archives (and libraries) would get a general exemption to make as many copies as is reasonably necessary to preserve material. This exemption would be subject to a test based on whether the material was commercially available at a reasonable price – a situation that would hardly ever apply to an archive. Note that the proposed preservation exemption is based around making copies. It is not clear if this change would support preservation processes, such as migration of content from obsolete formats.
Providing access to material in archives is a lot more complex than preservation. Four types of access need to be considered: publishing material on the web, providing digital copies to researchers, allowing researchers to make their own copies, and the old fashion provision of paper copies.
The ALRC suggests four approaches that an archive could take in dealing with copyright for access: fair use, providing restricted on-line access, restricted damages for publishing orphan works, and extended collective licensing. The last two options are problematic for archives. Each of these will be dealt with in turn.
Provision of access (including publication on the web) may be fair use in some circumstances for some archives. For a discussion on the concept of fair use, see our previous blog post on copyright reform and government agencies. Characteristics that might suggest fair use would be: a statutory requirement to provide access (e.g. for government archives under their Act), that the material is provided to specific individuals upon request (and not published), and that there is little or no commercial impact on a (real or potential) market for the material.
For digital copies of material, the ALRC suggests allowing archives (and libraries) to provide digital copies, but restrict what researchers can do with it. The archive must take measures to prevent the researcher from recopying the material, ensure they cannot alter the material, and to limit the time they can access the material. In essence, this would mimic the ability of being able to attend the reading room, view a record, and take notes. A challenge for an archive is that any access to a record is likely to involve access to third party copyright material. The only way this would be feasible is if it was automated – metadata in archival systems would flag third party material and automatically apply the restricted access.
A whole chapter in the discussion paper is devoted to the vexed subject of providing copies of orphan works. An orphan work is one in which the current copyright holder is not known, and hence cannot be contacted for a license to reproduce. Orphans are a particular problem for an archive for the following reasons:
- Fundamental archival principles require archives to publish the full record. To publish the portion where copyright is clear, but omit the ‘other side of the story’, would be to destroy the integrity of the record.
- Copyright never expires on unpublished works, hence there is no easy date before which material could assumed to be out of copyright. Even a letter penned in 1856 is in copyright and might have a copyright owner.
- A significant portion of an archive are orphans. The copyright of anything received by an agency is owned by the creator, and once in an archive is likely to be an orphan. This is partially because of the age of the material – the creator is likely to be dead, or the organisation ceased. But it is also because the creators are ordinary people and organisations. These are much harder to track down than the relatively small number of published authors or publishers.
- Archival material is unique. This limits the effectiveness of databases of copyright searches. If one library has conducted a diligent search for the copyright holder of a book, then other libraries with a copy of that book could use the results of that search. If one archive conducts a search for the copyright holder of a letter, however, this is of little use to other archives because no other archive will hold that letter.
Where providing access is not clearly fair use, but an archive wishes to publish orphan works, the ALRC proposes restricting damages where the archive has conducted a ‘reasonably diligent’ search for the copyright holder. What would be a ‘reasonably diligent’ search is deliberately not defined in the discussion paper – the ALRC considers that this would vary depending on industry practice, and would change as tools and technologies change. For example, the ALRC envisages the development of databases where the results of copyright searches would be recorded, thus making it easier for subsequent searches by other libraries and archives. Unfortunately, the nature of archival collections (the age, the pervasive nature of orphans in the collection, and the uniqueness of each individual document) suggests that archives would have difficulty in attaining the protection of conducting a ‘reasonably diligent’ search, particularly where conducting a mass digitisation program.
As an alternative to conducting ‘reasonably diligent’ searches for copyright holders of orphan works, the ALRC proposes the use of ‘extended collective licensing’. In this approach, an archive would negotiate a general license to reproduce material with a collecting society. Unlike today, the collecting society would be able to license reproductions even though the copyright holder was not a member of the society, and, in fact the holder would not even need to be known. A difficulty with extended collective licensing is equity. The collecting societies receive money for distribution to their members, but this is a problem if the actual copyright holders are not members of the collecting society. For this reason, proposed extended collective licensing schemes normally include a requirement that the collecting society be representative of the copyright holders.
Unfortunately, there is no collecting society that is representative of the copyright holders of archival material, which would mean that archives could not make such deals with current collecting societies. Again, this is because the creators of archival material are ordinary people and organisations, and the age of the material means that copyright will have devolved to their descendants. This would make it very difficult for collecting societies to be representative of the copyright holders. Current surveyors, for example, are not representative of the current copyright holders of the material of long dead surveyors. In general, living published authors are not representative of the descendants of ordinary people.
One positive feature of extended collective licensing, however, is that under this model making copies on the web would be a licensed publication. Hence, it should start the copyright clock ticking on unpublished material. The material would consequently eventually fall out of copyright and be free to be redistributed.
In summary, the proposed ALRC copyright reforms are a mixed bag when considering archival material. The proposed general exemption for making preservation copies will be a significant step forward, but it would be preferable for the exemption to deal with preservation processes. Unfortunately, the solutions for access are unlikely to be useful for archives. In practice, the only real option for an archive would be to rely on the ‘fair use’ provisions.
Of course, this is just a discussion paper. The eventual ALRC recommendations may be considerably different, and any changes to the law may differ yet further.
However, there is the opportunity to comment on the discussion paper. The comment period closes on 31st July.
Comments
Great post. While the idea of fair use is appealing, the concept of licencing works not originally created for commercial exploitation is extremely frustrating, both for the institutions which will pay money which may never be distributed and for the broader public.