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The Quest to Achieve Balance in Copyright Law: Lessons from Library and Archive Copying Provisions in Australia
Kaushalya K Madugalla*
Abstract
While the concept of balance of interests has often been referred to in the Australian copyright law discourse, it is also marked by the difficulty of striking a balance between the competing interests involved. Yet, legislative materials relevant to copyright statutes have neither explored the reasons for this difficulty nor identified mechanisms to address this issue. This paper examines these aspects through the lens of the library and archive copying provisions in the Copyright Act 1968 (Cth), two sections which permit libraries and archives to make reproductions of works to supply them to users and to other libraries and archives respectively. This analysis is warranted because there is a need to ensure a balance between competing interests in the context of exceptions to the exclusive rights of copyright owners; otherwise, the interests of users can be affected in a negative manner. This paper finds several reasons it is difficult to achieve that balance. It also argues that they also cause difficulty in achieving the required balance with other exceptions to the exclusive rights of copyright holders to the extent that they involve the same interests as those protected by the library and archive copying provisions. This paper demonstrates the need to have clarifying legislation to achieve a balance between the library and archive copying provisions and other exceptions which involve the same interests.
The concept of balance of interests has often been referred to in Australian copyright law. Not only that the explanatory memoranda to copyright statutes refer to balance of interests as an objective to be achieved, but also that the stakeholders in copyright law have used the concept of balance of interests to argue for stronger rights and entitlements.[1] Furthermore, the concept of balance of interests is very contested because, on the one hand, Parliament has considered that the balance has already been achieved[2] while on the other hand, the stakeholders involved have argued that that balance has not been achieved.[3]
It is also true to say that the difficulty of achieving a balance between the competing interests involved has often been discussed and commented upon in Australian copyright law. Legislative materials regarding copyright statutes make it clear that achieving the balance between interests is a difficult task.[4] However, it is interesting to note that these materials have not explored either the reasons for this difficulty nor possible mechanisms to overcome it. It is also interesting to note that this issue has persisted from the inception of the current copyright statute in 1968 until the present date, indicating that it has not been addressed all this time; hence the need to analyse it in order to initiate a discussion regarding how to overcome it.
This paper analyses the difficulty associated with balancing the competing interests involved in copyright law, to identify and examine mechanisms to overcome this issue. It analyses the problem through the lens of ss 49 and 50 of the Copyright Act 1968 (Cth) (the ‘Copyright Act’)[5] (the ‘library and archive copying provisions’) and amendments to that Act which made significant changes to those provisions. These sections permit libraries and archives to make reproductions of works for users and other libraries and archives. The reason for selecting these two provisions is because the tension between the interests of stakeholders involved in copyright law is explicitly manifested in legislative materials regarding them. Therefore, analysing the difficulty in relation to the library and archive copying provisions demonstrates how this issue persisted from the 1960s onwards. It also provides insights regarding the best way to address it.
This paper begins by analysing the nature and the extent of the difficulty associated with achieving a balance between competing interests in copyright law in relation to the Act’s library and archive copying provisions to demonstrate the gravity of this issue. It then identifies and analyses possible reasons why that difficulty has persisted to this day, to explain why that has occurred. Finally, it identifies and analyses mechanisms that would help to overcome this issue, to determine how an appropriate balance between the competing interests can be achieved.
The library and archive copying provisions permit libraries and archives to make reproductions of works for supplying to users and other libraries and archives.[6] When analysing the history of these provisions, it is clear that their origins lie in the Copyright Act as enacted in 1968 and that they have been substantially modified at several points since in response to major developments in technology. In each of the amending statutes there has also been reference not only to the multitude of interests of stakeholders that are affected by the library and archives provisions, but also the difficulty of achieving a balance between them,
Achieving that balance cannot be underestimated, because, while the provisions are exceptions to the exclusive rights of copyright owners, they are also critical to ensure access to materials held in libraries and archives. If a balance cannot be reached between those competing interests, there is a possibility that the latter could be narrowly interpreted.[7] As a result, access to materials held in libraries and archives can be lessened to the detriment of the interests of users.
The importance of achieving a balance between the conflicting interests associated with the library and archive copying provisions is heightened by the fact that the Copyright Act uses a phrase which it does not define. That phrase is ‘accessible to members of the public’, in relation to which the terms ‘library’ and ‘archives’ have been defined in the library and archive copying provisions.[8] Therefore, the meaning of ‘accessible to members of the public’ is critical to determine which libraries and archives can use the library and archive copying provisions to make reproductions of materials for the purposes mentioned therein. It means that unless a library or an archive is ‘accessible’ to the extent required it cannot use the library and archive copying provisions to excuse what would otherwise be infringements of copyright law.
When applying the phrase ‘accessible to members of the public’, the concept of balance becomes relevant because it is a factor that has been thoroughly considered in legislative materials regarding copyright statutes which have introduced or amended these provisions.[9] However, it is also the case that those legislative materials refer to the difficulty of achieving the balance between competing interests in copyright law.[10] Therefore, it is necessary to examine them to identify and analyse possible reasons for the difficulty in achieving that balance and to examine mechanisms that could address the issue.
As the library and archive copying provisions were introduced by the Copyright Act in 1968, the balance envisaged in the legislative materials accompanying this statute is relevant in this analysis. As this statute is mainly based on the Report of the Committee Appointed by the Attorney General of the Commonwealth to Consider What Alterations are Desirable in the Copyright Law of the Commonwealth (the ‘Spicer Committee Report’),[11] the balance envisaged in it is particularly relevant. That balance is between the interests of copyright owners, users and the general public[12] and the Report’s articulation of balance conveys that the interests on all sides have to be acknowledged.
However, the effect of that acknowledgement in the Report is mitigated by the fact that it recognised the interests of authors over and above the interests of other stakeholders. That is clear from the Report, where it is stated that copyright is a monopoly and that the ‘primary end’ of copyright law is to reward authors for their contribution to society and to encourage them to make further creations.[13] Clearly, these assertions establish the ascendancy of authors’ interests over those of others and it therefore tilts the balance in favour of authors. It also dilutes the assertion made immediately afterwards, that research and education, which are the interests on the other side of the balance, should not be unduly restricted.[14]
From this statement in the Report it can be expected that the balance of the library and archive copying provisions would lean more towards the interests of creators and would, therefore, tend to be narrow in scope. True enough, the Spicer Committee recommended that after a library has copied a non-periodical work, it must, within a reasonable time, give notice to the copyright owner regarding the portion of the work that has been copied and of the identity of the recipient of the copy.[15] Furthermore, the Report recommended that libraries be able to copy more than one article from a periodical if they are regarding the same subject matter.[16]
The Spicer Committee’s inclination to give more weight to copyright owners’ rights is reflected in the original Copyright Act as it was passed in 1968. Accordingly, libraries are permitted to make copies of works to supply to other libraries to the extent provided in the relevant sections if they are unable to obtain permission from the person who is authorised to give such permission.[17] Moreover, where a library copies works for users for their private research and study, those copies cannot be used for any other purpose.[18] Clearly, these provisions give priority to the interests of creators and thereby restrict the instances where works can be copied for the benefit of users.
The Spicer Committee Report demonstrates that the balance it recommended was formulated in utilitarian terms. That is clear from its assertion that authors should receive benefits for making creative works and that they should be encouraged to make further creations.[19] Utilitarian theory states that copyright law is regarded as a ‘utilitarian bargain’, where incentives are provided to rights holders to create and disseminate knowledge and culture.[20] However, the utilitarian balance is regarded as indeterminate since there is an absence of evidence to demonstrate where the optimal balance in copyright law can be made.[21] If that is the case, it is clear that the utilitarian formulation of the balance is one reason why there is an apparent imbalance inherent in the library and archive copying provisions.
The Spicer Committee’s acknowledgement that copyright is a monopoly[22] also demonstrates the utilitarian underpinning of the Report. In a state of monopoly, one party can determine the rules and regulations which govern the market. In the case of copyright, that would mean determining the terms and conditions which users have to fulfill in order to access copyright works. Accordingly, if authors are to be encouraged to make more creations, they would have to be given power to decide the prices that users have to pay for accessing their works and could also deny access to those users who are unable to pay those prices. This shows that it would lead to a monopoly and, since the Committee referred to copyright law as a monopoly, it further indicates that utilitarian theory is a factor making it difficult to achieve an appropriate balance between the competing interests.
It is also important to note that the Spicer Committee refers to several metaphors in its report: the notion of rewarding authors, where it states that the law should ensure that authors should be rewarded for their contribution to society;[23] and the notion of pirates, where it refers to pirating broadcasts.[24] The notion of reward is an agricultural image, which invokes the idea of a farmer sowing seeds and reaping the fruits of their labour, in the same way that an author would spend his labour on his work and receive income from it.[25] The notion of pirates is a part of a group of metaphors which refer to users as predators, parasites, poachers and free riders.[26] Piracy creates the impression of robbers at sea who operate outside the law,[27] who are associated with lawlessness and violence.[28]
The metaphors used in the Spicer Committee Report are relevant to understanding how these images make it difficult to achieve the required balance in the statute. When they portray authors as stakeholders who deserve rewards, it strengthens the weight that is given to their interests. When they portray users as those who are outside the law who should be kept under control, it weakens the weight that is given to their interests. If users’ interests are affected in this manner, they will not have full force when they are balanced against the interests of copyright owners. From this perspective, it is clear that metaphors used in the Spicer Committee Report make it difficult to strike an appropriate balance in copyright law.
As the recommendations of the Report of the Copyright Law Committee on Reprographic Reproduction (the 'Franki Committee Report')[29] regarding library and archive copying provisions were incorporated into the Copyright Act,[30] the balance envisaged in that report is also relevant to this analysis. That balance is, again, between the interests of copyright owners and the interests of copyright users.[31] The striking feature of the Franki Committee Report is the subtle interconnections that can be discovered between these diverse interests, which makes it another reason it is difficult to strike an appropriate balance.
For example, there are interconnections between interests which are usually placed on either side of the scale, such as those of writers and the public. According to the Franki Committee Report, writers would like to have their works copied and it would serve the public interest.[32] According to this argument, enhancing the interests of writers would be essential to enhance the interests of the public and yet it hardly applies in practice, as strengthening the interests of writers would curtail the interests of the public. Furthermore, the interconnections between these interests makes it difficult to separate them and allow them to be weighed against each another.[33]
Furthermore, there are interconnections between interests which are usually placed on the same side of the scale, such as those of libraries and those of users as well as those of libraries and those of the community. The link between the interests of libraries and the interests of users is where libraries copy materials on behalf of students and other users, so that they can use them as their own.[34] The link between the interests of libraries and the interests of the community occurs, in particular, through services such as inter-library loans, which enhance community access to materials which may not otherwise be obtainable, especially when ‘elaborate library facilities’ are not readily available.[35] These interconnections demonstrate how tightly woven these interests are and also explains how it can be difficult to separate them, and to compare and contrast them.
The metaphors used in the Franki Committee Report when it referred to the diverse interests involved in copyright law provide another reason why it is difficult to strike an appropriate balance. According to the Report, reprographic reproduction is common in educational institutions[36] and authors require more control over such technologies to ensure that they receive appropriate rewards in such circumstances.[37] The Report invokes the image of farmers using fences on their lands to prevent others from stealing fruit which rightfully belongs to them.[38] This type of metaphor justifies the imposition of control on access to works by copyright owners and thereby tilts the balance of the scale in their favour.
The library and archive copying provisions were significantly amended by the Copyright Amendment (Digital Agenda) Act 2000 (Cth) (the ‘Digital Agenda Act’), including by introducing provisions that enable libraries and archives to make reproductions of materials using digital technology. For that reason, that statute is also relevant to this analysis. It is important to note that the interests of copyright owners were also given more weight by that statute when it came to its library and archive copying provisions. It is evident from the Explanatory Memorandum to the Digital Agenda Bill, that the legislation was intended to ensure that libraries and archives can use new technologies as long as the economic rights of copyright owners are not unreasonably prejudiced.[39] Clearly, this gives priority to the interests of copyright owners, since it allows exceptions to the exclusive rights of copyright owners to operate but only as long as they do not infringe on those rights.
The priority that the Digital Agenda Act afforded the interests of copyright owners is clear when considering those of its provisions which permit libraries and archives to make reproductions of materials using digital technology.[40] Although the interests of creators and users have been formulated in this statute in such a way that they are opposed to each other[41] there are instances where there are mutual benfits. Creators can be users of the works of others and users can become creators when they use copyright works of other to make new creations. In particular, it has been said that when creators integrate existing works into their own creations they become users.[42] Therefore, it is clear that the interests of creators and users overlap and that they are not mutually exclusive.
Similarly, users become creators when they actively engage with existing creations such as when they create ‘mixtapes, photoshop and blogs.’[43] When stakeholders in copyright law, who are often pitted against each other in their separate roles act in the role of the other, it is difficult to separate and balance their two competing interests. Therefore, the fact that their interests are not mutually exclusive can be considered as a reason for the difficulty in striking a balance between those interests.
The restrictions imposed by the Digital Agenda Act can also be understood from the utilitarian perspective. This theory is useful in understanding the role of information as an emerging pure public good (as opposed to a private good).[44] In the case of private goods, producers determine how many goods they will supply to the market, and consumers determine how many of those goods they will buy.[45] In the case of public goods however, consumers do not have an incentive to disclose how many public goods they will buy. They will also be able to use those goods even without paying for them[46] and it is not possible to prevent that use.[47]
That being the case market failures will result which, in turn, require government intervention through means such as creating exclusion mechanisms.[48] Since ss 49 and 50 are about access to information, it can be considered that the library and archive copying provisions are concerned with public goods and, therefore, a result of market failure, for which the government intervenes by creating exclusion mechanisms. When s 49(7B) prohibits libraries and archives from displaying materials acquired in an electronic format without ensuring that users cannot copy or communicate them, it amounts to a legal and a technological exclusionary mechanism.[49]
In addition to s 49(7B), s 49(5) and s 50(7B) can also be considered as legal exclusionary mechanisms. Section 49(5) prohibits libraries and archives from reproducing the whole or more than a reasonable portion of works other than articles if those works are commercially available.[50] Similarly, s 50(7B) prohibits libraries and archives from supplying reproductions of works acquired in an electronic format to other libraries and archives unless that work is not commercially available.[51] A work will be regarded as ‘commercially available’ if a copy of it cannot be obtained ‘within a reasonable time at an ordinary commercial price’.[52] It is important to note that both ss 49 and 50 are exceptions to copyright owners’ exclusive economic rights and those two exceptions are expected to support the interests of users. If they have the opposite effect, it will give more weight to copyright owners’ rights which will tip the balance in favour of copyright owners.
The metaphors and other words used in relation to the Digital Agenda Act are also relevant in this analysis. The word ‘protection’ has been used in relation to this statute, where a reason for amending the Copyright Act in 2000 was the need to improve the level of protection provided to copyright owners.[53] The metaphor of receiving rewards for hard work is also used in this this statute, where it was the impetus behind the 2000 amendments.[54] It conveys the idea of hard work which deserves rewards and evidently this impression gives preference to those who own the copyright. Therefore, it is clear that these metaphors are another reason why it is difficult to achieve an appropriate balance between the competing interests.
Since the Copyright (Amendment) Act 2006 (Cth) made significant amendments to the library and archive copying provisions, namely by providing that only those libraries and archives which are ‘accessible to members of the public’ can make use of the library and archive copying provisions,[55] it is also significant for this analysis. Although it aimed to achieve a balance between the interests of copyright owners and users,[56] it is clear that it gave more weight to the interests of copyright owners. As the Explanatory Memorandum to the Bill noted, ‘copyright is the exclusive right to authorise, and to prohibit, a number of specific acts in relation to protected material’[57] and ‘copyright is the right to stop copying by other persons.’[58] The absence of reference to other interests, such as those of users, indicate this amendment is inclined towards copyright owners’ interests.
Furthermore, the interests considered in the Copyright (Amendment) Act 2006 (Cth) are linked in complex ways. The balance considered in this paper is between the interests of copyright owners and users[59] and it is clear that the interests of these stakeholders are interconnected. Scassa’s work explains this connection, where time-shifting and space shifting technologies which are used by users are considered as different versions of consumption[60] that is beneficial to copyright owners.[61] It is significant to note that the Copyright (Amendment) Act 2006 (Cth) introduced legal mechanisms to regulate time-shifting and space-shifting technologies,[62] which demonstrates a statutory recognition of that interconnection.
A number of metaphors and other words used in the Explanatory Memorandum to the Copyright (Amendment) Bill 2006, such as protection, control and piracy, convey distinct impressions about the interests which the Act was intended to address. When it is stated that individual authors and artists have an interest in receiving copyright ‘protection’,[63] that copyright includes the right to ‘control’ how works are distributed[64] and that it also includes the right to stop others from copying,[65] it gives the impression of property owners guarding their fences against those who might enter their properties without permission.
When it is stated in the Explanatory Memorandum to the Copyright (Amendment) Bill 2006 that it is getting easy to commit piracy[66] and that copyright law protects creators from ‘free-riding’ which affects their motivation to create,[67] it gives the impression that users are like pirates, robbers at sea who operate outside the law[68] and that their activities should be curtailed. Evidently, it would have a negative effect on the recognition of the interests of users which would make it difficult to strike the balance between the interests involved.
The analysis in the foregoing sections of this paper examines four possible reasons for the difficulty in achieving balance between the interests associated with copyright law, in relation to the library and archive copying provisions. It demonstrated that the difficulty in achieving a balance persisted not only when these provisions were first introduced but also when they were subsequently amended. If an appropriate balance cannot be made when applying the library and archive copying exceptions in copyright law, it seems clear that those provisions would be applied narrowly to reduce their scope and, thereby, to strengthen the interests of copyright owners.
Therefore, the legislative intention behind the statutory amendment which introduced the ‘accessible to members of the public’ to the library and archive copying provisions becomes relevant. The objective of the Copyright (Amendment) Act 2006 (Cth) is to ensure that exceptions provide reasonable access to copyright materials.[69] Furthermore, the Explanatory Memorandum to the Copyright (Amendment) Bill 2006 states that exceptions in the Copyright Act had not been amended to keep pace with copyright owners’ rights which had been expanded.[70] When ‘accessible to members of the public’ is applied according to the objective behind the Copyright (Amendment) Act 2006 (Cth), it was intended that it would extend to include libraries and archives which provide reasonable access to copyright materials.
In that case, the concept of balance of interests can be used to the extent it ensures reasonable access to materials when determining the meaning of ‘accessible to members of the public’ in the context of ss 49 and 50. Whenever the interests involved in the library and archive copying provisions are featured in other provisions of the Copyright Act, it is argued that the same approach can be adopted, where the concept of balance of interests can be used when applying those provisions, to the degree that it upholds reasonable access to materials. Furthermore, it would be beneficial to have legislative intervention in this area in the form of legislation which clarifies the meaning of this phrase and provide guidance about the instances in which the library and archive copying provisions apply.
From the analysis in this paper, it is clear that the difficulty in striking a balance in copyright law has far-reaching effects. In the case of the library and archive copying provisions, the difficulty in striking an appropriate balance between the interests indicate that applying these provisions would be narrowed to the detriment of users. Since the library and archive copying provisions are exceptions in copyright law, the inability to achieve a balance between the interests involved would mean that copyright owners could benefit even in instances which are expected to benefit users. There is a possibility that this state-of-affairs would persist in relation to other exceptions in copyright law as well, in instances where the same interests as those involved in the library and archive copying provisions are involved. Therefore, in the case of these provisions, having legislation which clarifies the meaning of ‘accessible to members of the public’ would help to strike the balance between the interests involved in these sections. Having such legislation would also benefit other exceptions in copyright law which involve the same interests as that of the library and archive copying provisions.
* PhD (UNE), LL.M (London), LL. B (Colombo). This paper is based on several legal aspects considered in the authorR[1]s PhD thesis.
1 Horn refers to the copyright holders’ argument that they require ‘increased protection and opportunity to benefit’ so that the effects of developments in technology can be balanced with their need to be rewarded: Ant Horn, 'Creators and the Copyright Balance – Investigating the interests of copyright holders, users and creators' [2004] AltLawJl 31; (2004) 29(3) Alternative Law Journal 112.
[2] ‘As far as possible, the exceptions replicate the balance struck between the rights of owners and the rights of users that has applied in the print environment’: Explanatory Memorandum to Copyright Amendment (Digital Agenda) Bill 1999 ('Explanatory Memorandum to Digital Agenda Bill') 3.
[3] For example, in their submission to the Australian Law Reform Commission’s copyright inquiry in 2012, the ‘Copyright and Digital Economy’, the Australian Digital Alliance and Australian Libraries Copyright Committee have argued that fair dealing provisions in Australia do not support an ‘effective balance’ in copyright law: Australian Libraries Copyright Committee and Australian Digital Alliance ‘Copyright and the Digital Economy, Submission by the Australian Digital Alliance and Australian Libraries Copyright Committee to the Australian Law Reform Commission’ (2012) 67.
[4] For example, Senator Wright in the second reading of the Copyright Act 1968 stated that the stakeholder interests involved in Copyright Bill 1968 are conflicting and that it is impossible to address the needs of all stakeholders: Commonwealth, Parliamentary Debates, Senate, 11 June 1968, 1 (Wright, Senator). MP McLelland in the parliamentary debates made during the second reading of Copyright Amendment (Digital Agenda) Bill 1999 stated that it is very difficult to strike the balance in copyright law: Commonwealth, Parliamentary Debates, House of Representatives, 27 June 2000, 18341 (Robert McClelland, MP). According to MP Roxon, ‘In this copyright area those different interest groups are often pitted against each other, which makes it a tricky balancing act at any time’: Commonwealth, Parliamentary Debates, House of Representatives, 27 June 2000, 18352 (Nicola Roxon, MP).
[5] Section 49 provides that libraries and archives may make reproductions of works for supplying to users and s 50 provides that libraries and archives may make reproductions of works for supplying to other libraries and archives. The term ‘work’ is defined as in s 10(1) of the Copyright Act as ‘... a literary, dramatic, musical or artistic work’.
[6] Ibid.
[7] Examples of the exclusive rights as recognised in s 31 of the Copyright Act are the right to reproduce the work in a material form, the right to publish the work, the right to perform the work in public, the right to communicate the work to the public and the right to make an adaptation of the work. Examples of moral rights that have been protected under the Copyright Act are the right to attribution of authorship under s 193, the right not to have authorship falsely attributed under s 195AC and the right to integrity of authorship under s 195AI.
[8] Sections 49(9) and 50(10) of the Copyright Act define ‘library’ as ‘a library all or part of whose collection is accessible to members of the public directly or through interlibrary loans’. These two sections also define ‘archives’ as ‘archives means an archive all or part of whose collection is accessible to members of the public’.
[9] For example, the Report of the Copyright Law Review Committee: Report of the Committee Appointed by the Attorney General of the Commonwealth to Consider What Alterations are Desirable in the Copyright Law of the Commonwealth (‘Spicer Committee Report’) on which the Copyright Act enacted in 1968 was based, it is stated in page 8 that when making their recommendations, their work essentially involved achieving the balance between interests involved in copyright law.
[10] See above n 4.
[11] Report of the Committee appointed by the Attorney General of the Commonwealth to consider What Alterations are Desirable in the Copyright Law of the Commonwealth, No 235 (Report, 1959).
[12] ‘In arriving at our recommendations our task has essentially been one of balancing the interests of the copyright owner with those of copyright users and the general public’: ibid 8.
[13] Ibid 8, 9.
[14] Ibid 9.
[15] Ibid 94.
[16] Ibid.
[17] See s 50(2)(b) of the Copyright Act as enacted in 1968.
[18] Ibid s 49(3)(a).
[19] Spicer Committee Report (n 11) 8, 9.
[20] Ezieddin Elmahjub and Nicolas Suzor, 'Fair Use and Fairness in Copyright: A Distributive Justice Perspective on Users’ Rights' [2017] MonashULawRw 8; (2017) 43(1) Monash University Law Review 274.
[21] Ibid.
[22] Spicer Committee Report (n 11) 9.
[23] Ibid 8, 9.
[24] Ibid 55.
[25] See Patricia Loughlan, 'Pirates, Parasites, Reapers, Sowers, Fruits, Foxes.. The Metaphors of Intellectual Property' [2006] SydLawRw 12; (2006) 28 Sydney Law Review 211, 220.
[26] Ibid 217.
[27] ‘The read-across from piracy to copyright may have begun from that of a sea robber who operated outside all law and could be put to death without trial’: William St Clair, 'Metaphors of Intellectual Property' in Ronan Deazley (ed), Privilege and Property : Essays on the History of Copyright (Open Book Publishers, 2010), 338.
[28] Loughlan (n 25) 217.
[29] Copyright Law Review Committee, Report of the Copyright Law Committee on Reprographic Reproduction (Report, October 1976).
[30] For example, the Franki Committee’s recommendation in paragraphs [3.34] and [4.21] of their report that library and archive copying provisions should apply regarding archives was incorporated in Copyright (Amendment) Act 1980. As this is a significant amendment of the library and archives provisions, it assumes relevance for this study.
[31] The terms of reference of the Franki Committee in para [1.01] proceeds as ‘[t]o examine the question of the reprographic reproduction of works protected by copyright in Australia and to recommend any alterations to the Australian copyright law and any other measures the Committee may consider necessary to effect a proper balance of interest between owners of copyright and the users of copyright material in respect of reprographic reproduction’.
[32] According to Franki Committee, writers of scientific articles in journals consider copying by libraries as an efficient way of disseminating their works and there is a ‘great public need’ for such materials to be available without restrictions: Franki Committee Report (n 29) [3.12], [3.13].
[33] Murray mentions how the notion of balance involves separating interests into two ‘brass bowls’: Laura Murray, 'Copyright Talk: Patterns and Pitfalls in Canadian Policy Discourse' in Michael Geist (ed), From “Radical Extremism” to “Balanced Copyright” Canadian Copyright and the Digital Agenda (Irwin Law, 2010) 15, 23.
[34] Franki Committee Report explains how users need to have their own copies of materials for making notes and for using them along with other materials: Franki Committee Report (n 29) [3.04].
[35] Ibid [4.03], [4.06].
[36] Ibid [1.01].
[37] Ibid [1.20].
[38] Loughlan discusses about the image of a farmer fencing off the land to keep away unauthorised entrants such as thieves and poachers: Loughlin (n 25) 220.
[39] Explanatory Memorandum to Digital Agenda Bill (n 2) [69], [85].
[40] Ibid [69].
[41] On page 2 of the Explanatory Memorandum to the Digital Agenda Bill, it is stated that ‘Creators and owners of copyright material are concerned that they do not have effective means of redress or remuneration in relation to use of their copyright material on the Internet’. On the same page, it is stated that ‘[u]sers of copyright material, such as libraries, archives and educational institutions, are concerned about being able to obtain reasonable access to copyright material available on the Internet.’
[42] Murray (n 33) 24.
[43] Ibid.
[44] ‘[W]ith the advent of the digital age and new media such as the Internet, information becomes closer and closer to a pure public good as a consequence of the virtually costless nature of information reproduction’: Robert Cunningham, Information Environmentalism: A Governance Framework for Intellectual Property Rights (Edward Elgar, 2022).
[45] Samuel Trosow, 'Economic Analysis and Copyright Law: Are New Models Needed in the Digital Age?' (1999) 17(1-2) Legal Reference Services Quarterly 161, 166.
[46] Ibid 228.
[47] Ibid 167.
[48] Samuel Trosow, 'The Illusive Search for Justificatory Theories: Copyright, Commodification and Capital' (2013) 16 Canadian Journal of Law and Jurisprudence 217, 228.
[49] Section 49(7B) postulates that making reproductions of materials according to s 49(5A) does not amount to copyright infringement, meaning that reproducing materials against this provision amounts to copyright infringement. Section 49(5A) allows institutions such as libraries and archives to display works acquired in the digital format within their premises and this section also makes it clear that it is the responsibility of these institutions to make sure that users can’t reproduce these materials or communicate them outside the premises of those institutions.
[50] Section 49(5) states that ss 49(2) and (2C) of the Copyright Act permit reproductions of works other than articles, as long as an authorised officer of a library or an archive has declared that it is not possible to obtain a copy of those works within ‘a reasonable time at an ordinary commercial price.’.
[51]. According to s 50(7B) of the Copyright Act, when a work in the electronic format is reproduced for supplying to other libraries and archives, s 50(4) does not apply unless an authorised officer makes a declaration that the work in question cannot be obtained ‘within a reasonable time at the ordinary commercial price.’ Section 50(4) is about situations where making reproductions under s 50 does not amount to infringement of copyright. It indicates that reproducing materials under s 50(7B) for purposes mentioned therein without satisfying the commercial availability test amounts to copyright infringement.
[52] See s 49(5AB) and s 50(7B) of the Copyright Act.
[53] Explanatory Memorandum to the Digital Agenda Bill (n 2) 7.
[54] Ibid.
[55] See s 49(9) and s 50(10) introduced by this statute.
[56] Explanatory Memorandum to the Copyright (Amendment) Bill 2006 ('Explanatory Memorandum to Copyright (Amendment) Bill 2006 ') 7.
[57] Ibid 5.
[58] Ibid.
[59] Ibid 7.
[60] Terese Scassa, 'Interests in the Balance' in Michael Geist (ed), In the Public Interest: The Future of Canadian Copyright Law (Irwin Law, 2005) 41, 61. Time shifting is where broadcasts are copied for later use; format shifting is where works can be copied in different formats: Explanatory Memorandum to Copyright (Amendment) Bill 2006 (n 56) 8.
[61] Scassa (n 60) 61.
[62] See page 13 of the Explanatory Memorandum to Copyright (Amendment) Bill 2006 (n 56) to see how the legislature considered different options and ultimately adopted the option of introducing new exceptions for time shifting and format shifting.
[63] Explanatory Memorandum to Copyright (Amendment) Bill 2006 (n 56) 11, 12.
[64] Ibid 5.
[65] Ibid.
[66] Ibid 1
[67] Ibid 5.
[68] ‘The read-across from piracy to copyright may have begun from that of a sea robber who operated outside all law and could be put to death without trial’: St Clair (n 27) 338.
[69] Explanatory Memorandum to Copyright (Amendment) Bill 2006 (n 56) 7.
[70] Ibid 6.
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