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Copyright Amendment (Disability Access and Other Measures) Bill 2017



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ISSN 1328-8091

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BILLS DIGEST NO. 96, 2016-17 9 MAY 2017

Copyright Amendment (Disability Access and Other Measures) Bill 2017 Mary Anne Neilsen Law and Bills Digest Section

Contents

Purpose of the Bill ............................................................... 2

Structure of the Bill ............................................................. 2

Background ......................................................................... 2

Committee consideration .................................................... 4

Senate Standing Committee for the Scrutiny of Bills .............. 4

Policy position of non-government parties/independents ..... 4

Position of major interest groups ......................................... 4

Financial implications .......................................................... 5

Statement of Compatibility with Human Rights .................... 5

Parliamentary Joint Committee on Human Rights .................. 5

Key issues and provisions..................................................... 5

Schedule 1—uses that do not infringe copyright .................... 5

New Part IVA of the Copyright Act—uses that do not infringe copyright .................................................................. 5

Division 2—access by or for persons with a disability........... 5

The Marrakesh Treaty ......................................................... 5

Division 3—libraries and archives ......................................... 7

Division 4—educational institutions-statutory licence ........ 8

Division 5—collecting societies ........................................... 10

Schedule 2—terms of copyright ............................................ 10

Date introduced: 22 March 2017

House: House of Representatives

Portfolio: Communications

Commencement: The formal provisions commence on Royal Assent. Schedule 1 and Schedule 3 Part 2 commence six months after the date of Royal Assent, or earlier by Proclamation. Schedule 3 Part 1 commences the day after Royal Assent. Schedule 2 commences on 1 January 2019.

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill’s home page, or through the Australian Parliament website.

When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the Federal Register of Legislation website.

All hyperlinks in this Bills Digest are correct as at

May 2017.

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Purpose of the Bill The purpose of the Copyright Amendment (Disability Access and Other Measures) Bill 2017 (the Bill) is to amend the Copyright Act 1968 to:

• enhance access to copyright material for persons with a disability, consistent with the World Intellectual Property Organization (WIPO) Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled1 (Marrakesh Treaty) ratified by Australia on 10 December 2015

• create a new, simplified exception to existing copyright laws, permitting libraries, archives and certain cultural institutions to create copies of material for preservation purposes

• harmonise the term of copyright protection for published and unpublished works, films and sound recordings

• update and streamline the educational statutory licence provisions to make it easier for educational institutions and copyright collecting societies to agree on licensing arrangements for the copying and communication of copyright material.

Structure of the Bill The Bill consists of three Schedules:

• Schedule 1 Part 1 amends the Copyright Act to insert a new Part IVA to establish new uses of copyright material that do not infringe copyright. Part 2 contains further amendments consequential to the insertion of new Part IVA and Part 3 contains the necessary transitional provisions

• Schedule 2 contains amendments to harmonise the rules regarding the duration of copyright

• Schedule 3 contains minor amendments which include: updating references to Ministers; setting out preconditions for making regulations; and extending or restricting the operation of the Copyright Act in relation to foreign countries.

The Bills Digest focuses on Schedules 1 and 2.

Background Copyright is concerned with encouraging the creation and dissemination of works of art and intellect, but also acknowledges that there are appropriate limits to the rights of copyright holders. Retaining the correct balance has always been difficult and has become more so in the digital age with copyright policy taking on enormous importance in recent years. The Australian Law Reform Commission in 2012-14 conducted the most comprehensive review of the Copyright Act since it came into effect almost a half century ago, and there have been numerous other inquiries since, including the inquiries into IT pricing2 and online copyright infringement.3 The Productivity Commission has also recently completed a review of Australia's intellectual property arrangements and made recommendations that included reform of copyright law.4

Copyright protection is provided under the Copyright Act and gives the holder of copyright exclusive rights to license others in regard to copying a work, performing it in public, broadcasting it, publishing it and making an adaptation of the work. Rights vary according to the nature of the work. Those for artistic works, for instance, are different from those for literary and musical works.5

1. Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled (MVT) 2013, done in Marrakesh on 27 June 2013, [2014] ATNIF 15 (entered into force 30 September 2016). 2. House of Representatives Standing Committee on Infrastructure and Communications, Inquiry into IT pricing, House of Representatives, Canberra, 2013. On 29 July 2013, the Standing Committee tabled its report on the inquiry entitled At what cost? IT pricing and the Australia

tax.

3. On 30 July 2014 the Government released the Online copyright infringement discussion paper seeking public submissions on draft proposals designed to address online piracy. This inquiry formed the basis for the subsequent passage of the Copyright Amendment (Online Infringement) Act 2015.

4. Productivity Commission, Report on intellectual property arrangements was sent to Government on 23 September 2016 and publicly released on 20 December 2016. The Report examines Australia’s intellectual property system in detail, and makes recommendations to improve its operation.

5. For more information about copyright generally see the website for the Department of Communications and the Arts (DCA).

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The Australian Law Reform Commission (ALRC) in its 2014 report, Copyright and the Digital Economy,6 considered an extensive range of challenges facing copyright in the digital age, and made 30 recommendations which President Professor Rosalind Croucher said ‘are designed to allow for a more principles-based and less prescriptive approach to copyright law’.7 In summary, the recommendations include:

• the introduction of a flexible fair use exemption as a defence to copyright infringement

• retaining and reforming some existing specific exemptions (including the exemptions that apply to parliamentary libraries), and introducing certain new specific exemptions

• clarifying the statutory licensing scheme

• changing the broadcasting exemptions and

• amending the Copyright Act to limit contracting out of copyright exemptions.

Undoubtedly the key recommendation is that Australia adopt a ‘fair use’ exception to copyright.8 Fair use is a defence to copyright infringement that essentially asks of any particular use: is this fair? In deciding whether a particular use of copyright material is fair, a number of principles, or ’fairness factors’ must be considered. The Productivity Commission in its recent report on intellectual property also recommended that the Australian Government should accept and implement a fair use exception in Australia.9

The Government is yet to respond to the ALRC report and the Productivity Commission report. In the meantime it has chosen to make a series of amendments designed to simplify and modernise the Copyright Act to make it easier for the disability, educational, libraries and archives sectors. These amendments, as set out in the Bill before the Parliament are relatively minor and are in accord with some of the ALRC’s less contentious recommendations.

Exposure draft: Copyright Amendment (Disability Access and Other Measures) Bill 2016

In December 2015 the Government released an exposure draft of the Copyright Amendment (Disability Access and Other Measures) Bill 2016 for public comment, the stated purpose being to:

- streamline the educational statutory licence provisions to make it easier for educational institutions and copyright collecting societies to agree on licensing arrangements for the copying and communication of copyright material

- provide simple, clear rules for libraries, archives and key cultural institutions to make preservation copies of copyright material

- align the terms of protection for unpublished works with published works to give libraries, archives and other cultural institutions greater opportunities to use, and provide public access to, unpublished works, and

- ensure that search engines, universities and libraries have ‘safe harbour’ protection if they comply with conditions aimed at reducing online copyright infringement. 10

The exposure draft was received with keen interest. There are over 90 submissions from a range of stakeholders, available on the Department of Communications and the Arts website.11

The Bill currently before the Parliament is similar to the exposure draft in most respects, with the major difference being the omission of amendments to the safe harbour provisions. 12 These provisions were the more significant and controversial of the proposed amendments in the exposure draft. Safe harbour amendments

6. Australian Law Reform Commission (ALRC), Copyright and the digital economy: final report, ALRC report, 122, ALRC, Sydney, November 2013. 7. ALRC, ALRC releases copyright report, media release, 13 February 2014. 8. M Neilsen, ‘ALRC report released: copyright and the digital economy’, FlagPost, Parliamentary Library, Canberra, 20 February 2014. 9. Productivity Commission, op. cit., Recommendation 6.1, p. 33. 10. DCA, ‘Updating Australia’s copyright laws’, DCA website. 11. Ibid.

12. The purpose of the safe harbour provisions (sections 116AA to 116AJ of the Copyright Act) is to give carriage service providers some protection from the otherwise unavoidable risk of liability for inadvertently hosting or communicating copyright infringing material on behalf of their users.

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have been the subject of debate and review for over ten years with groups representing rights owners raising some objections to them. While the Explanatory Memorandum and second reading speech to the Bill make no mention of this omission, the Government has subsequently announced that it will undertake further consultation with stakeholders on the extension of the safe harbour provisions of the Copyright Act prior to introducing legislation:

An expanded safe harbour regime would provide a useful mechanism for rights holders to have material that infringes their copyright removed from online service providers. An expanded regime would also ensure that service providers are not held responsible for the infringing actions of their users, provided they take reasonable steps to take down material that infringes copyright. The extension of safe harbour to cover online service providers, not just internet service providers, has been the subject of inquiry and public debate for over a decade.

13

Further background on the Bill is provided in the Key issues and provisions section below.

Committee consideration At the time of writing the Bill had not been referred to a committee for inquiry and report.

Senate Standing Committee for the Scrutiny of Bills The Committee considered the Bill and had no comment.14

Policy position of non-government parties/independents The Bill received bipartisan support in the House of Representatives. The Shadow Attorney-General, Mark Dreyfus, in parliamentary debate, stated that the Bill is a very welcome start to some major copyright reform but added that it ‘can only be the very start of the ambitious modernisation of the Copyright Act that the government promised at the start of the last term of the parliament’.15 Mr Dreyfus highlighted particularly the importance of the provisions intended to assist persons with a disability in the use of copyright material, noting also the previous Labor Government’s leading role in negotiating the Marrakesh Treaty.16

Position of major interest groups The exposure draft of the Bill released for public comment was generally received well by libraries and universities. For example the Australian Digital Alliance and the Australian Libraries Copyright Committee in their joint submission stated:

We feel these are important changes that provide significant benefits for Australian consumers and businesses. They will particularly benefit the cultural, educational, disability and technology sectors. 17

Universities Australia (UA) also strongly welcomed the proposed reforms. While recommending some minor changes to improve the drafting UA saw the exposure draft as a ‘significant first step’ in reforming the educational copying landscape in the way recommended by the ALRC.18

The ALRC also welcomed this legislative initiative noting that the exposure draft was consistent with some of the approaches to reform reflected in its 2014 report.19

Submissions from groups representing rights owners were more cautious in their reaction and in particular were generally opposed to the amendments to the safe harbour provisions. For example the Australian Copyright Council was generally supportive of the preservation provisions for cultural institutions but expressed

13. M Fifield (Minister for Communications), Further consultation on copyright safe harbour legislation, media release, 21 April 2017. 14. Senate Standing Committee for the Scrutiny of Bills, Scutiny digest, 4, 2017, The Senate, 29 March 2017, p. 13. 15. M Dreyfus, Second reading speech: Copyright Amendment (Disability Access and Other Measures) Bill 2017’, House of Representatives, Debates, 28 March 2017, p. 3467.

16. Ibid., p. 3466. 17. Australian Digital Alliance and Australian Libraries Copyright Committee, Joint submission to the DCA, Copyright Amendment (Disability Access and Other Measures) Bill 2016: exposure draft, submission no. 40, February 2016, p. 2. 18. Universities Australia, Submission to the DCA, Copyright Amendment (Disability Access and Other Measures) Bill 2016: exposure draft,

submission no. 46, 12 February 2016. 19. ALRC, Submission to the DCA, Copyright Amendment (Disability Access and Other Measures) Bill 2016: exposure draft, 11 February 2016.

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reservations about the provisions relating to disability access to copyright materials. The Council did not support the safe harbour provisions in the exposure draft.20

Financial implications The Explanatory Memorandum states that the Bill will not have a significant impact on Commonwealth expenditure or revenue.21

Statement of Compatibility with Human Rights As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible.22

Parliamentary Joint Committee on Human Rights The Parliamentary Joint Committee on Human Rights considered that the Bill did not raise human rights concerns.23

Key issues and provisions Schedule 1—uses that do not infringe copyright

New Part IVA of the Copyright Act—uses that do not infringe copyright Item 2 is the key provision in this Schedule. It inserts a new Part IVA into the Copyright Act and provides that certain uses of copyright material do not result in an infringement of copyright. These include:

• certain use of copyright material by or for persons with disability (proposed Division 2)

• certain use of copyright material for the purposes of libraries, archives and key cultural institutions (proposed Division 3)

• certain use of copyright material by educational institutions (proposed Divisions 4 and 5).

Division 2—access by or for persons with a disability

The Marrakesh Treaty Until recently, international copyright law has permitted, but not required, countries to include copyright exceptions to faciliatate access by persons with disability. That situation changed when the Marrakesh Treaty was adopted at the World Intellectual Property Organization in 2013. The Marrakesh Treaty requires parties to provide exceptions to copyright to facilitate the availability of works in accessible formats.24 The exceptions should allow certain uses of copyright material by institutions (‘authorised entities’) and by individuals (for personal use).25

Australia signed the agreement in June 2014 and the Government ratified the Treaty on 10 December 2015 with the Treaty entering into force on 30 September 2016.26

The existing framework in the Copyright Act permits the making of accessible copies of books and other copyright material under a number of different provisions for various disabilities and purposes, however there is no comprehensive exception for individual users with a disability.27 With regard to institutions, Part VA provides for a statutory licence for copying and communicating broadcasts that is available to an institution assisting

20. Australian Copyright Council, Submission to the DCA, Copyright Amendment (Disability Access and Other Measures) Bill 2016: exposure draft, February 2016, pp. 2-6. 21. Explanatory Memorandum, Copyright Amendment (Disability Access and Other Measures) Bill 2017, p. 2. 22. The Statement of Compatibility with Human Rights can be found at pages 3-10 of the Explanatory Memorandum to the Bill. 23. Parliamentary Joint Committee on Human Rights, Scrutiny report, 3, 2017, The Senate, Canberra, 28 March 2017, p. 17. 24. Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled (MVT)

2013, op. cit. 25. ALRC, Copyright and the digital economy: final report, op. cit., p. 357. The background in this section draws on Chapter 16 of the ALRC report, op. cit. 26. DCA, ‘Marrakesh Treaty for people with print disability’, DCA website. 27. The ALRC notes that individuals can create accessible materials by relying on exceptions for format shifting, fair dealing for research and

study, and ‘special cases’ (section 200AB). ALRC, report, op. cit., paragraph 16.8.

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persons with an intellectual disability. Part VB provides for a statutory licence for copying and communicating various types of other copyright material for persons with print or intellectual disabilities. The licence does not extend to making a reproduction of a work in a particular format if there is already a commercially available version in that format. The statutory licences also require equitable remuneration to be paid, although the Copyright Agency does not collect payment for these uses.28

The Bill inserts two new provisions to strengthen and consolidate the various exceptions that currently assist persons with a disability in the use of copyright material. One exception is for persons with a disability and anyone assisting them (proposed section 113E) and one is for organisations assisting persons with a disability (proposed section 113F). These provisions are intended to satisfy Australia’s obligations under the Marrakesh Treaty.

Proposed section 113E provides that a fair dealing with copyright material does not infringe copyright in the material if the dealing is for the purpose of one or more persons with a disability having access to the copyright material (whether the dealing is by any of those persons or by another person on their behalf). A person with a disability is defined to mean ‘a person with a disability that causes the person difficulty in reading, viewing, hearing or comprehending copyright material in a particular form’.29 Proposed subsection 113E(2) sets out four factors that must be considered prior to determining whether the use of copyright material would be a fair dealing namely:

• the purpose and character of the dealing

• the nature of the copyright material

• the effect of the dealing upon the potential market for, or value of the material

• if only part of the material is dealt with, the amount and substantiality of the part dealt with, taken in relation to the whole material.30

As the Explanatory Memorandum points out these factors generally replicate those in the existing fair dealing provisions in section 40 of the Copyright Act, except that the commercial availability considerations have been omitted. The rationale for this omission being that it is ‘well understood that the commercial supply of accessible format material is limited’.31

Consequential to this amendment, the existing subsection 200AB(4) will be repealed.32 This provision currently relates to use of works and other subject-matter by or for persons with a disability.

The ALRC in its inquiry considered the matter of access to copyright material by people with disabilities and included in its report a recommendation that either a fair use or fair dealing exception be introduced.33 The ALRC in response on the exposure draft was therefore pleased that proposed section 113E would implement this recommendation.34

Proposed section 113F is an exception relating to the use of copyright material35 by ‘organisations assisting persons with a disability’ (defined to mean an educational institution or a not-for-profit organisation with a principal function of providing assistance to persons with a disability).36 The proposed section permits such organisations to make accessible format copies and provide them to persons with a disability in circumstances where the provision of such material is for the sole use of a person with a disability and the requested material is unavailable commercially in a reasonable timeframe and at an ordinary commercial price. This more streamlined single exception that applies to educational institutions and certain not-for-profit organisations would replace the current statutory licences for institutions that assist persons with a print or intellectual disability.37

28. Ibid., paragraph 16.7. 29. To be inserted into subsection 10(1) by item 1, Schedule 1. 30. Consideration of these four factors does not preclude consideration of any additional factors. 31. Explanatory Memorandum, op. cit., p. 15. 32. Item 56 of Schedule 1 to the Bill repeals subsection 200AB(4). 33. ALRC, Report, op. cit., p. 363. 34. ALRC, Submission, op. cit., p. 1. 35. The term ‘copyright material’ is defined to mean anything in which copyright subsists (item 1, Schedule 1). 36. This definition would be inserted into section 10 by item 1, Schedule 1. 37. The statutory licence schemes are to be repealed by item 39, Schedule 1.

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Division 3—libraries and archives The Copyright Act currently includes a number of exceptions that specifically allow staff of libraries and archives to make or communicate copies of copyright material in collections for preservation purposes. There are separate exceptions for libraries and archives (sections 51A and 110B) and for certain cultural institutions, (sections 51B, 110BA and 112AA). Currently, a distinction is also drawn in the Act between preservation copying of works38 and subject-matter other than works39, and different considerations for ‘original’ and ‘published’ works.40

The rules regarding preservation are generally considered to be unduly restrictive. For example, section 51A provides that a library or archive can make and communicate a reproduction of the work if:

• the work is in manuscript form or is an original artistic work—for the purpose of preserving against loss or deterioration or for the purpose of research that is being carried out at the library or archive

• the work is in published form but has been damaged, deteriorated, lost or stolen—for the purpose of replacing the work.

In addition preservation copying of works held in published form is only permitted subject to a commercial availability declaration and there is a limit on the number of copies that can be made.

The ALRC report described these provisions as ‘a good example of how prescriptive and rigid rules are inadequate for the digital environment’ with stakeholders submitting to the inquiry that the current limit of one copy for preservation purposes or three copies for a key cultural institution ‘no longer meets best practice preservation principles’.41

The Bill proposes to repeal these existing provisions42 and to replace them with simpler uniform provisions which would mean that libraries, archives and prescribed key cultural institutions would have greater flexibility in copying and digitisation of copyright material, whether published or unpublished, to preserve or administer their collections. The new provisions are in line with the recommendations of the ALRC43 and are supported by the Library community.44

Specifically, proposed subsection 113H(1) would enable an authorized officer of a library or archives to use copyright material, without infringing copyright, for the purpose of preserving its collection or the collection of another library or archives, if the material is:

• held in original form and/or

• cannot be obtained in the required version or format consistent with best practice for preservation of such a collection.

If a preservation copy made under proposed subsection 113H(1) is in electronic form, that copy could be made available for access by a person at the relevant library or archives, provided reasonable steps are taken to ensure copyright is not infringed (proposed subsection 113H(2)).

The Explanatory Memorandum states this would enable libraries and archives to make multiple copies of copyright material which are in a version or format that is in line with best practice preservation policy, if a copy of the material cannot be obtained in that version or format. This includes making an enhanced, preservation-oriented copy of the material at the point of access or purchase.45

38. Copyright Act section 10 defines a ‘work’ as a literary, dramatic, musical or artistic work. 39. Ibid., sections 51A, 51B deal with copying ‘works’ while sections 110B, 110BA and 112AA deal with subject-matter other than works, which includes sound recordings and cinematograph films and published works. 40. ALRC, Report, op. cit., paragraph 12.59. 41. Ibid., paragraph 12.57. 42. Part 2 of Schedule 1 contains the repeal provisions. 43. ALRC, Report, op. cit., Recommendation 12-2: ‘The exceptions for preservation copying in ss 51A, 51B, 110B, 110BA and 112AA of the

Copyright Act should be repealed. The Copyright Act should provide for a new exception that permits libraries and archives to use copyright material for preservation purposes. The exception should not limit the number or format of copies that may be made’. 44. For example: Australian Digital Alliance and Australian Libraries Copyright Committee, op. cit., p. 7. 45. Explanatory Memorandum, op. cit., p. 18.

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Proposed section 113M is an equivalent provision applying to ‘key cultural institutions’.46 Proposed subsection 113M(1) would enable an authorized officer of a key cultural institution to use copyright material, without infringing copyright, for the purpose of preserving the collection if satisfied that the material is of historical or cultural significance to Australia and the material is:

• held in original form and/or

• cannot be obtained in the required version or format consistent with best practice for preservation of such collection.

If a preservation copy made under proposed subsection 113M(1) is in electronic form, the copy could be made available for access by a person at the cultural institution, provided reasonable steps are taken to ensure copyright is not infringed (proposed subsection 113M(2)).

Proposed section 113J would enable an authorized officer of a library or archives to use copyright material held in its collection in original form, without infringing copyright, for the purpose of research carried out at the library or archives or another library or archives. If a research copy made under proposed subsection 113J(1) is in electronic form, the copy could be made available for access by a person at the library or archives, provided reasonable steps are taken to ensure copyright is not infringed (proposed subsection 113J(2)).

Proposed section 113K would enable an authorized officer of a library or archives to use copyright material, without infringing copyright, for administrative purposes directly related to the care or control of the collection.

By virtue of the definition of ‘library’ in proposed section 113G the new preservation and research exceptions would apply to libraries accessible to members of the public directly or through interlibrary loans and to parliamentary libraries. The Explanatory Memorandum states that the definition of ‘library’ is broad enough to include university libraries and government libraries and that the existing definition of ‘archives’ means the provisions would also encompass the collections of museums and galleries.47

Division 4—educational institutions-statutory licence Statutory licences allow for certain uses of copyright material, without the permission of the rights holder, subject to the payment of reasonable remuneration. They have been described as a type of compulsory licence because where the licence applies, rights holders cannot choose not to license their material.48

Under the Copyright Act there are currently two statutory licensing schemes for the use of copyright material by educational institutions and institutions assisting people with a print disability: one relates to the copying and communication of broadcasts, in Part VA; the other concerns the reproduction and communication of works in Part VB.49 The Part VB licence applies to all copies and communications of text and images, including digital material, from any source, including the internet.50

Under these schemes, educational institutions pay fees or royalties (referred to as ‘equitable remuneration’ in the Act)—to collecting societies for certain uses of copyright material. Collecting societies distribute royalties to their members—authors, film-makers and other rights holders. Copyright Agency51 is the declared collecting society for text, artworks and music (other than material included in sound recordings or films). Screenrights52 is

46. Proposed section 113L provides a definition of ‘key cultural institution’. This covers the types of institutions described under current subsections 51B(1), 110BA(1) and 112AA(1) of the Act, and includes libraries and archives that have a statutory function under a Commonwealth, state or territory law to develop and maintain the collection or are prescribed by regulations made under the Act. There are currently three prescribed key cultural institutions—the Australian Broadcasting Corporation (ABC), the Special Broadcasting Service Corporation (SBS) and the Australian National University Archives Program—see Schedule 5 to the Copyright Regulations 1969 . The Explanatory Memorandum notes that key cultural institutions that are currently prescribed in the regulations for the purposes of current sections 51B, 110BA or 112AA would, by virtue of transitional provisions in the Bill, be treated as having been prescribed for the purposes of the new section 113L (see item 81 of Schedule 1 to the Bill). Explanatory Memorandum, op. cit., p. 19.

47. See subsection 10(1) and subsection 10(4) of the Copyright Act. Explanatory Memorandum, op. cit., p. 17. 48. This background material relies on Chapter 8 of the ALRC report, op. cit., p. 183 49. Note that there is also a statutory licensing scheme for Crown or government use which is contained in Part VII division 2 of the Copyright Act. Under this scheme, copyright is not infringed by a government use of copyright material if that use is ‘for the services of the Commonwealth

or State’. The Bill and the Bills Digest do not deal with this scheme. 50. ALRC, report, op. cit., paragraphs 8.12 and 8.13. 51. Copyright Agency website. 52. Sceenrights, ‘Screenrights: @screenrights1’, Twitter website.

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the declared collecting society for the copying of audiovisual material, including sound recordings, film, television and radio broadcasts.53

The Copyright Act mandates various administrative requirements for each scheme. For example, it requires that notice be given to rights holders or collecting societies when copyright material is used.54

The ALRC in its review of the Copyright Act was asked to consider whether the existing statutory licences are ‘adequate and appropriate in the digital environment’.55 The ALRC report notes that these schemes were criticised by educational institutions during the inquiry and there were strong calls for the licences to be repealed and for licences to be negotiated voluntarily instead. Rights holders and collecting societies on the other hand were opposed to outright repeal of the schemes. The ALRC decided not to recommend the repeal of the statutory licences. While maintaining that voluntary licences would be more efficient and better suited to a digital age, the ALRC concluded that there is, at least for now, a continued role for statutory licences. To address the educational institutions’ criticisms, the ALRC recommended that the schemes should be made less prescriptive and that:

[d]etailed provisions concerning the setting of equitable remuneration, remuneration notices, records notices, sampling notices, and record keeping should be removed. The Act should not require sampling surveys to be conducted. Instead, the Act should simply provide that the amount of equitable remuneration and other terms of the licences should be agreed between the relevant parties, or failing agreement, determined by the Copyright Tribunal.

56

The Explanatory Memorandum does not refer directly to the ALRC recommendations, and the second reading speech for the Bill makes only more generalised reference to the views of copyright stakeholders that ‘reform is needed to address outdated, prescriptive and overly complex provisions of the Copyright Act.57 The Explanatory Memorandum states that the aim of the new Division 4 is to simplify the operation of the educational statutory licences, to provide more flexibility for educational institutions and collecting societies to negotiate agreed terms and to remove the mandatory record keeping requirements of the Parts VA and VB statutory licences.58

Proposed section 113P is the key provision and deals with copying and communication of works and broadcasts by educational institutions.

Proposed subsection 113P(1) provides a statutory licence for educational institutions to copy and communicate works, without infringing copyright, provided certain conditions are complied with. These conditions include:

• a remuneration notice that applies to the educational institution and the work is in force

• the copy or communication occurs solely for the educational purposes of the institution, or of another educational institution if that other institution has a remuneration notice in force

• the amount of work copied or communicated does not unreasonably prejudice the legitimate interests of the owner of the copyright

• the copying or communicating complies with:

- any relevant agreement between the educational institution’s administering body and the collecting society and - any relevant determination made by the Copyright Tribunal. The intention is that the remuneration notice is an undertaking and informs the collecting society that the educational institution intends to rely on the statutory licence and undertakes to pay remuneration and comply with agreed terms and conditions. The detailed terms agreed between the body administering the educational institution and the collecting society are then set out in a separate agreement. If the parties fail to agree on the

53. ALRC, report, op. cit., paragraph 8.15 and 8.16. 54. Ibid., paragraph 8.17. 55. Ibid., p. 7. 56. Ibid., Recommendation 8-4. 57. P Fletcher, ‘Second reading speech: Copyright Amendment (Disability Access and Other Measures) Bill 2017’, House of Representatives,

Debates, 22 March 2017, p. 2753. 58. Explanatory Memorandum, op. cit., p. 20. Consequential to the amendments in Divisions 4 and 5, item 39 of Schedule 1 will repeal Parts VA and VB of the Act.

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terms and conditions for the copying and communicating, these can be determined by the Tribunal under proposed subsection 113P(4).59

Proposed subsections 113P(2) and (6) provide a statutory licence for educational institutions enabling them to copy, and communicate copies of, broadcasts and broadcast content provided certain conditions specified in proposed paragraphs 113P(2)(a) to (d) are complied with.

Proposed section 113Q sets out the requirements for a remuneration notice. A remuneration notice is a written notice given by the body administering an educational institution to a collecting society undertaking to pay equitable remuneration for licensed copying and communicating and to provide reasonable assistance to the collecting society to enable the society to collect and distribute equitable remuneration.

Proposed section 113R provides that the amount of the equitable remuneration payable will be the amount that is agreed between the administering body and the collecting society or, failing agreement, by the Tribunal.

The Explanatory Memorandum notes that this proposed approach differs from the existing scheme because it does not mandate a particular method for determining remuneration, such as sampling or record keeping.60

Proposed section 113S provides the procedure by which a collecting society can enter the premises of an educational institution for the purpose of reviewing compliance with the remuneration notice and any other relevant terms and conditions.

Division 5—collecting societies Division 5 sets out the framework for the operation of declared collecting societies under the statutory licence. The provisions largely retain the current arrangements and cover such matters as specifying the requirements for bodies seeking to be declared as collection societies and the circumstances in which such declarations may be revoked. It also sets out the obligations of the collecting society with regard to the preparation of annual reports, accounting records and the auditing of such records.

The provisions in Division 5 are described in greater detail at pages 26-29 in the Explanatory Memorandum.

Schedule 2—terms of copyright Under the Copyright Act, copyright in a published work (including a literary, dramatic, musical or artistic work) generally subsists for 70 years from the death of an author, or, if the work was not published until after the death of the author, for 70 years from first publication.61 Similarly in relation to anonymous works copyright subsists for 70 years from first publication.62 Copyright in a sound recording and a cinematograph film also subsists for 70 years from publication.63

In contrast, where copyright materials are unpublished or otherwise not made public they remain in copyright in perpetuity. As a consequence where the owner of a copyright is unknown or unable to be contacted, libraries and other institutions are unable to make use of those works.

Schedule 2 amends the Copyright Act to implement a new general protection period of life of author plus 70 years or first made public plus 70 years that does not differentiate between published and unpublished works. Specifically, item 4 repeals existing sections 33 and 34 and replaces them with a proposed section 33. The proposed section 33 provides in table form how the 70 year period is calculated in relation to original works. It is divided according to works made public before 1 January 2019 and works not made public before 1 January 2019— that date being the day that the provisions are to commence.

The general effect is that:

• the copyright term for works (including a literary, dramatic, musical or artistic work) is a standard term of 70 years from the death of the author, irrespective of whether the relevant work has or has not been made public. This means that an unpublished work will have the same term of copyright protection as a published work

59. Ibid., p. 21. 60. Explanatory memorandum, op. cit., p. 24. 61. Copyright Act, section 33. 62. Ibid., section 34. 63. Ibid., sections 93 and 94.

Warning: All viewers of this digest are advised to visit the disclaimer appearing at the end of this document. The disclaimer sets out the status and purpose of the digest. Copyright Amendment (Disability Access and Other Measures) Bill 2017 11

• where the identity of the author remains generally unknown, the standard copyright term will be 70 years from when it is made. However, if this work is made public within 50 years of being created, the copyright term will be 70 years from first being made public.

The meaning of ‘made public’ is defined in proposed section 29A and covers when a work is published, first performed in public, broadcast or otherwise communicated to the public.

Item 9 repeals existing sections 93 and 94 that deal with terms of copyright for films and sound recordings. Proposed section 93 sets out in table form the new copyright terms:

• for sound recordings and films, a standard copyright term of 70 years from the year in which the material is made will apply. However, if the sound recording or film is made public within 50 years of being made, the copyright term will be 70 years from first being made public.

Item 12 makes similar amendments relating to Crown copyright. Under the Copyright Act sections 180 and 181 respectively provide that where the Commonwealth or State is the owner of copyright, the term of copyright is fifty years in published works and 50 years in published sound recordings and cinematograph films. Item 12 repeals sections 180 and 181 and substitutes proposed section 180. It provides a new standard term of copyright protection for works, sound recordings and cinematograph films owned by the Crown of 50 years from the year in which the material is made, whether the material is made public or not.

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