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Hudson, E --- "The Copyright Amendment Act 2006-The Scope and Likely Impact of New Library Exceptions" [2006] UMelbLRS 5

Last Updated: 12 June 2008

Melbourne Law School
Research Series

[2006] UMelbLRS 5

The Copyright Amendment Act 2006:

The Scope and Likely Impact of New Library Exceptions

Emily Hudson

(2006) 14(4) Australian Law Librarian 25-37

The Copyright Amendment Act 2006:

The Scope and Likely Impact of New Library Exceptions

Emily Hudson[*]

Introduction

In December 2006, the latest tome amending the Copyright Act 1968 (Cth) was passed by federal parliament: the Copyright Amendment Act 2006 (Cth).[1] This voluminous legislation introduced a variety of amendments to the Copyright Act, many with direct relevance to libraries and other cultural institutions. Prior to that, significant amendments for the sector were introduced by the Digital Agenda Act of 2000.[2] That legislation amended the Copyright Act to make it more responsive to digital and online technologies, for instance by introducing technology-neutral communication rights and a new exception allowing the reproduction of print-based and artistic collection items for ‘administrative purposes’.[3] Since then, there has been further amendment of the Copyright Act (including the well-known copyright term extension following the US-Australia free trade agreement[4]), as well as a review of the digital agenda reforms by law firm Phillips Fox,[5] and an inquiry by the Attorney-General’s department into copyright exceptions.[6] Some of the amendments set out in the Copyright Amendment Act 2006 respond to the digital agenda and copyright exceptions reviews.

This article focuses on amendments to statutory exceptions that are most relevant to libraries. These changes can be broadly divided into two types: those that amend existing exceptions (in this case, fair dealing and the libraries and archives provisions) and those than introduce new exceptions (‘flexible dealing’ and preservation copying for key cultural institutions). This article commences by providing a brief summary of why copyright is relevant to libraries and other cultural institutions, and how statutory exceptions operate within copyright law. It then describes relevant amendments from the Copyright Amendment Act 2006, with particular focus on the new ‘flexible dealing’ exception. As will be discussed, this exception offers some potential for a greater range of library activities to be performed without copyright licences. That said, licensing arrangements will remain important for many dealings, in particular for reproduction of contemporary published materials, and for what can loosely be described as ‘commercial’ activities.

Copyright and Libraries

Relevance of copyright for libraries

Libraries, like other cultural institutions, often do not own copyright in collection items. They may purchase hard copy books and journals, and take out subscriptions to large electronic databases. Libraries also receive donated material, both voluntarily and under legal deposit schemes. However, in all these cases – of purchase, licence, donation and bequest – it is not generally the case that copyright is also transferred, unless this is specifically agreed to.[7] This reflects the fact that copyright is separate to other proprietary rights that subsist in physical objects, and that these rights can be held simultaneously by different people.[8]

Although libraries frequently do not own copyright in collection items, they and their patrons frequently perform acts that are within the ‘exclusive rights’ of the copyright owner. These rights vary depending on the type of work under consideration,[9] but for literary items include reproducing the work in digital or analogue form, communicating it to the public over the Internet, publishing it for the first time, and making an adaptation of it.[10]

The Copyright Act provides that it is an infringement of copyright for a third party to perform any of these exclusive acts without the permission of the copyright owner.[11] This means that, prima facie, library staff and patrons risk infringing copyright whenever they photocopy, digitise, download or otherwise reproduce copyright material in the collection. That said, there are a number of circumstances in which such dealings will not infringe copyright, including:

(a) Trivial dealings. There will be no infringement of copyright where a dealing is performed with less than a ‘substantial part’ of a work.[12] This is because copyright is not concerned with trivial activities. However, ‘substantial part’ is judged qualitatively, meaning that reproduction of quantitatively small amounts of a work can amount to an infringement.[13]

(b) Dealings with public domain works. There are no copyright constraints where an activity is performed in relation to a work for which all copyright protection has expired: works in the ‘public domain’.

(c) Licensed activities. There will be no infringement of copyright where the copyright owner has granted permission for an activity to be performed. That permission may be recorded in a ‘traditional’ voluntary licence: one negotiated directly between the licensee and the copyright owner (or their representative). However, with the advent of digital technologies, some copyright owners are utilising alternative licensing models, such as open licences that are inserted prospectively on a work, rather than negotiated between owner and user.[14] Governments are also exploring alternative models for copyright management, such as waiving rights in relation to primary legal materials.[15] Note, too, that some licences are compulsory under the Copyright Act, as discussed next.

(d) Statutory exceptions. There will be no infringement where conduct is permitted by an exception in the Copyright Act. Some exceptions are remunerated, such as the compulsory licensing scheme for educational institutions in Part VB: to take the benefit of the licence, users must pay a fee and comply with any rules and regulations. Other exceptions are free, meaning that dealings are permitted without the consent of, or payment to, the copyright owner. Free exceptions will be the focus of this article, and are explored in further detail in the next section.

If a copyright owner brings a successful court action in relation to an infringement of copyright, a number of remedies are available, including injunction, an award of damages, an account of profits, and orders for the delivery up or destruction of infringing copies.[16]

Statutory exceptions and copyright law

Historically, two sets of free exception have been particularly relevant to libraries: fair dealing, and the libraries and archives provisions. Each is dealt with in turn.

The fair dealing provisions permit dealings that would otherwise infringe copyright, so long as they are fair, and performed for one of the following purposes: research or study, criticism or review, reporting the news, giving professional legal advice, or (following the Copyright Amendment Act 2006) parody or satire.[17] In the library environment, this is particularly relevant for research activities, such as reproductions made by patrons using self-service photocopiers.[18] In Australia, it is usually accepted that the relevant purpose for fair dealing is that of the alleged infringer, meaning that a library cannot invoke fair dealing in relation to activities it performs on behalf of patrons. That said, this interpretation comes from the decision of a single judge of the Federal Court,[19] and there are arguments that rejection of an ‘agency’ argument was unnecessary for disposition of the case.[20] However, until clarified or overturned by another court,[21] libraries may prefer to rely on licences and other provisions of the Copyright Act for their own image delivery services.

The libraries and archives provisions permit the reproduction of collection items for a number of purposes, including:[22] responding to user requests;[23] participation in the interlibrary loan scheme;[24] preservation and replacement;[25] and administrative activities.[26] The provisions are detailed, and include numerous restrictions and record-keeping requirements. On the positive side, this detail has the potential to increase certainty: in theory, there is less latitude for individual determinations about what is and is not permitted, meaning that institutions can feel reasonably confident that their activities do not infringe the law.[27] On the negative side, there are real issues with exceptions failing to work on their own terms: that the extra detail excludes a range of conduct that is (in policy terms) equivalent to activity that is permitted. For instance, the existing preservation copying provisions never apply to published literary works, even if they are old, rare or out-of-print.[28]

As will become apparent, some of the new exceptions depart from the existing model of detailed, purpose-specific exceptions.[29] These exceptions are still limited, but in different ways to the traditional Australian approach. A key question for this paper is what this means for the library sector: how will the sector deal with this new style of exception?

Key changes introduced by the Copyright Amendment Act 2006

The Copyright Amendment Act 2006 contains many amendments, with varying degrees of relevance to the library sector. As noted above, some of these amendments have changed existing exceptions: for instance, fair dealing has been extended to include dealings for the purposes of parody or satire.[30] However, there are also some new provisions. This article discusses these changes in three parts: (1) the new ‘flexible dealing’ exception; (2) the new exception for preservation copying by key cultural institutions; and (3) other technical amendments to fair dealing and the libraries and archives provisions.

‘Flexible dealing’

The Copyright Amendment Act 2006 has introduced a new exception that can be invoked by cultural and educational institutions, and in relation to activities performed by or for people with a disability: the ‘flexible dealing’ exception in section 200AB.[31] The stated aim of this new provision is to:

provide a flexible exception to enable copyright material to be used for certain socially useful purposes while remaining consistent with Australia’s obligations under international copyright treaties.[32]

This article analyses the content of flexible dealing in two stages. First, it examines provisions that set out the types of library uses that are covered by the exception. Second, it explores further limitations on the application of the exception, which have been drafted using language from the ‘three-step test’ from international intellectual property law.

Covered uses

There are limits on the circumstances in which flexible dealing might apply to library activities. Thus, it does not apply to any use, but only those which are:

(a) made ‘by or on behalf of the body administering a library or archives’;

(b) made ‘for the purpose of maintaining or operating the library or archives (including operating the library or archives to provide services of a kind usually provided by a library or archives)’; and

Paragraph (a) appears relatively straight-forward: it means that the exception only applies to dealings by the library itself, and not to activities of patrons or researchers using its facilities.

Explanatory material accompanying the Copyright Amendment Act 2006 states that paragraph (b) covers both ‘internal administration’ as well as ‘providing services to users’.[34] In theory at least, this means that flexible dealing could permit the making of publicly-accessible reproductions, for instance where holdings are digitised so that they can be browsed electronically.[35] This offers ‘some encouraging potential’ for flexible dealing to promote goals of the earlier Digital Agenda Act that were not fully realised:[36] to ensure that cultural institutions ‘can access, and promote access to, copyright material in the online environment on reasonable terms, including having regard to the benefits of public access to the material and the provision of adequate remuneration to creators and investors’.[37] As will be seen, the extent to which flexible dealing applies to public activities will depend on interpretation of other elements of the exception, which ask whether the proposed use impacts on economic and non-economic interests of copyright owners.

There is further clarification of paragraph (c) in section 200AB(6A), which provides that a use will not fail to meet the condition in that paragraph ‘merely because of the charging of a fee that is connected with the use and [that] does not exceed the costs of the use to the charger of the fee’. Paragraph 6A was not in the original exposure draft of the Copyright Amendment Bill, but was introduced to clarify that the charging of cost-recovery fees (or a ‘user pays system’) is not, without more, evidence of commercial advantage or profit.[38]

Three-step test

For the flexible dealing exception to apply, the following requirements must be satisfied:

(a) the ‘circumstances of the use ... amount to a special case’;

(b) the use is covered by the flexible dealing exception (see discussion above);

(d) the use ‘does not unreasonably prejudice the legitimate interests of the owner of the copyright.’[39]

The wording of paragraphs (a), (c) and (d) is very deliberate: they mirror a provision known as the three-step test that is found in article 13 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (‘TRIPS’) and other international copyright treaties.[40] These treaties set out rules and minimum standards in relation to the content of copyright law, including in relation to the permissible content of limitations or exceptions to the rights of copyright owners.[41] In theory, the three-step test acts to ensure that such exceptions – which are necessary to allow socially productive uses of copyright materials and to deal with instances in which licensing is impractical or impossible[42] – do not unfairly impact on economic and non-economic interests of copyright owners. However, the three-step test has been criticised as being a diplomatic compromise that does not provide a useful or predictable standard by which to judge exceptions.[43]

The incorporation of terminology from TRIPS into domestic law is controversial. In particular, such a step has been criticised for generating uncertainty regarding the ambit of flexible dealing.[44] There is validity in these concerns. The three-step test is concerned with helping governments write copyright law, by setting parameters for exceptions to be TRIPS compliant. Instead, it is to be applied by copyright interpreters (eg, judges and lawyers) and stakeholders (eg, copyright owners and cultural institutions) in relation to whether a particular activity is permitted within Australian law. This is not only a very different function from that which the three-step test was designed to fulfil, but may suggest that those terms have accepted, readily ascertainable and easy to apply meanings. This does not appear to be the case.

For instance, section 200AB(7) states that the terms ‘conflict with a normal exploitation’, ‘special case’ and ‘unreasonably prejudice the legitimate interests’ all have the ‘same meaning as in Article 13 of TRIPS’. Where are librarians to find this meaning? There has only been one WTO decision that has applied the three-step test in the copyright context: the Panel decision of 2000.[45] While making some general remarks about the meaning of each limb, many of the comments and findings of the Panel were (like many judicial decisions) highly related to the dispute before it. Elsewhere, there is analysis more directly relevant to libraries. For instance, the three-step test was considered in a case challenging the photocopying service provided by the German National Library of Science and Technology. However this was a decision of a domestic court, and pre-dated (and used different interpretations to) the Panel’s decision.[46] At a local level, leading copyright academic, Professor Ricketson, has undertaken an extensive study in which he concluded that some Australian exceptions may not be TRIPS compliant, including some of the existing libraries and archives provisions.[47]

How should these different decisions and opinions be weighed in any court action in relation to flexible dealing? And leaving aside questions regarding the content of the three-step test, what additional evidence – in relation to markets for copyright works, economic interests of copyright owners, and so forth – will be required or admissible? This question could become extremely significant, as courts are required to consider economic and philosophical questions that have not previously been within their purview.

One consequence of this uncertainty may be to make flexible dealing irrelevant if cultural institutions consider it too risky to rely on such an unknown quantity. This possibility needs to be given real consideration, particularly given: (1) existing disagreements between publishers, copyright owners and libraries over library activities;[48] and (2) that many public cultural institutions describe risk-averse strategies in relation to copyright management. There may well be difficult questions in assessing the meaning of terms like ‘normal exploitation’ and ‘legitimate interests’.

On the other hand, interpretative difficulties are not the sole domain of flexible exceptions. The existing libraries and archives provisions also contain ambiguities, with the added problem that their structure and level of detail makes them a nightmare to navigate. There is an argument that a flexible exception, using phrases like ‘normal exploitation’ and ‘legitimate interests’, may be more readily understandable by lay people (without extensive legal advice), because they accord with intuitive notions of what is fair and reasonable.[49] This may promote new patterns of behaviour, especially in relation to orphan works and other collections for which there is no obvious contemporary market, or ongoing creator or copyright owner interest.

It remains to be seen how institutions will respond. One thing that is clear is that flexible dealing is not a carte blanche for libraries to digitise and deliver in any manner they wish. Its application will vary with the type of work and nature of copyright materials. Activities that may be allowed for old and orphaned materials may be entirely inappropriate for contemporary published items, leaving licences important in management of the latter. The exception will not apply to what can loosely be described as ‘commercial’ activities, although drawing a boundary between what is and is not conducted for commercial advantage or profit is obviously difficult. In summary, flexible dealing will be useful to help rectify problems with existing exceptions for internal uses,[50] and also opens the argument that some public activities are permitted without the consent of the copyright owner. However, licensing will remain important, particularly for research collections that include large numbers of commercially-produced publications and databases.

Preservation copying by key cultural institutions

The Copyright Amendment Act has introduced a new set of exceptions permitting the preservation copying of significant collection items by key cultural institutions.[51] Their underlying aim is ‘to widen the scope of the existing preservation exceptions’, and they are ‘separate and additional’ to existing exceptions.[52]

The operation of the original version of these exceptions was criticised following release of an exposure draft, and a number of changes were made in the legislation that was eventually passed. These changes increased the number of reproductions that can be made from a single copy to three, but limited the purpose of reproduction to preservation only. Although this amendment seeks to allow preservation in accordance with international best practice,[53] it may be that limiting the number of reproductions to three will frustrate this aim – particularly as the drafting suggests that only three reproductions may be made, not that only three reproductions can be held at any one time. This may present difficulties for digital preservation, which involves regular renewal of digital files and replacement of hardware.[54]

The provisions are limited in a number of ways:

(a) Applicable institutions. The exception only applies to a library or archives that develops and maintains its collection under legislation, or is prescribed under regulation.[55] The latter did not appear in the exposure draft, but was added so that the exception can apply to institutions other than those with a statutory function of developing collections.[56]

(b) Applicable works. The exception applies to manuscripts, original artistic works and published works,[57] unpublished and published sound recordings and cinematograph films,[58] and published editions.[59] However, there are two significant caveats. First, for the exception to arise, an authorized officer must be ‘satisfied that the work is of historical or cultural significance to Australia’.[60] Neither the legislation nor the explanatory material provides guidance regarding the meaning of this phrase. Second, the provision does not generally apply to commercially-available published items,[61] and where a photographic reproduction of an original artistic work is commercially-available.[62]

(c) Number of reproductions. The library or archives may only make three reproductions (or, for original artistic works, three ‘comprehensive photographic reproductions’[63]).

(d) Limited purpose. The provisions only apply to reproductions made for the purpose of preserving collection items against loss or deterioration. Explanatory material states that copies ‘must not be used for any other purpose’, such as fulfilling interlibrary loan requests, or being made available to patrons.[64]

Given these restrictions, it may be that flexible dealing is more relevant for many cultural institutions that wish to reproduce items for preservation purposes.[65]

Other technical amendments

Fair dealing for the purpose of research of study

Section 40 provides an exception for dealings performed for the purposes of research or study. Included within that exception is a ‘deeming’ provision that, prior to the Copyright Amendment Act 2006, provided that reproduction of the whole or part of an article in a periodical publication, or not more than a ‘reasonable portion’ of all other works,[66] constituted a fair dealing.[67] Reforms introduced by the Copyright Amendment Act 2006 have the aim of clarifying the meaning of ‘reasonable portion’.[68] Thus for published editions of at least 10 pages, ‘reasonable portion’ means ‘10% of the number of pages in the edition’ or ‘if the work ... is divided into chapters – a single chapter’.[69] For published works in electronic form, a ‘reasonable portion’ is 10% of the number of words, or a single chapter.[70] Note that reproduction of greater than a reasonable portion can still constitute a fair dealing, however it will not be deemed to be the case, but must be demonstrated under the factors in section 40(2).[71]

Changes to exceptions for user request and interlibrary loan

The Copyright Amendment Act 2006 makes the following amendments to sections 49 and 50, which deal with user requests and interlibrary loan, respectively.

(a) Source for reproductions. A reproduction made for supply to a user or under the interlibrary loan scheme can be made from a replacement copy made under section 51A(1).[72]

(b) Copying multiple articles. Section 49 does not apply to a request for two or more articles from the same periodical publication unless they ‘are requested for the same research or course of study’.[73] Explanatory material states that ‘the assessment of whether the articles relate to the same subject-matter would be made by the copying library on the basis of the information made known in the request by the user under sub-section 49(1).’[74] There is consequential amendment to section 50 to reflect this change.[75]

(c) Reasonable portion. Like fair dealing, the libraries and archives provisions have been amended with the stated aim of clarifying the meaning of ‘reasonable portion’. Unlike fair dealing, it does not appear that this has been achieved. Thus, when determining whether a user has requested the reproduction of a ‘reasonable portion’ of a work, ‘that question is to be determined solely by reference to subsection 10(2) or (2A) and not by reference to the ordinary meaning of reasonable portion.’[76] The issue is that the definition of ‘reasonable portion’ in subsections 10(2) and (2A) is not stated to be exclusive, but to include the ordinary meaning.

(d) Commercial availability declarations. In making a commercial availability declaration under section 49, the following must be taken into account: ‘the time by which the person requesting the reproduction requires it; the time within which a reproduction (not being a second-hand reproduction) of the work at an ordinary commercial price could be delivered to the person; and whether an electronic reproduction of the work can be obtained within a reasonable time at an ordinary commercial price.’[77] Similar amendments are made to section 50.[78]

(e) Definition of library and archives. There has been ongoing debate regarding whether commercial libraries – such as those in for-profit enterprises – should be able to enjoy the protection of sections 49 and 50.[79] On the one had, it is said that such participation is important for the ongoing success of the interlibrary loan scheme, while on the other, it is argued that copyright owners and publishers are unduly subsidising the activities of business. The relevant amendment to the definition of library provides that, for the purposes of sections 49 and 50, the term means:

a library all or part of whose collection is accessible to members of the public directly or through interlibrary loans.[80]

And archives means:

an archives all or part of whose collection is accessible to members of the public.[81]

Explanatory material says that this amendment ‘is designed to ensure that libraries will be entitled to rely on the exceptions in ss 49 and 50 if their collections (in whole or in part) are directly accessible to the public or are accessible to other library users through the library’s participation in an interlibrary loan system with libraries whose collections are directly accessible to the public.’[82]

Administrative purposes

An exception permitting the reproduction of literary, dramatic, musical and artistic works for ‘administrative purposes’ was first introduced by the Digital Agenda Act.[83] The term has now been defined to mean ‘purposes directly related to the care or control of the collection’.[84] It has also been clarified that the internal communication of administrative reproductions includes volunteers, and not just paid staff.[85]

Conclusion

In addition to amending fair dealing and the libraries and archives provisions, the Copyright Amendment Act 2006 has introduced a new style of exception: a flexible dealing exception that draws from the language of the three-step test of international copyright law. That exception differs from existing provisions in not being limited to a specific purpose. It has the potential to apply to both internal and external activities, and therefore assist in making Australia’s cultural collections more accessible to researchers and users. That said, the use of language from a treaty produces some uncertainty regarding the operation of flexible dealing, and it remains to be seen whether it will be embraced by cultural institutions, and if so, how readily.

[*] Emily Hudson is a PhD student at the University of Melbourne. This article draws from work completed by the author as part of collaborative research conducted by the Centre for Media and Communications Law (CMCL) and the Intellectual Property Research Institute of Australia (IPRIA).

[1] The amendments discussed in this article came into force on 11 December 2006: Copyright Amendment Act 2006 (Cth) s 2.

[2] Copyright Amendment (Digital Agenda) Act 2000 (Cth).

[3] For a summary of reforms, see generally Tanya Aplin, ‘Contemplating Australia’s Digital Future: The Copyright Amendment (Digital Agenda) Act 2000’ (2001) 23(12) European Intellectual Property Review 565. And for discussion of how the reforms were relevant to cultural institutions, see Andrew T Kenyon and Emily Hudson, ‘Copyright, digitisation, and cultural institutions’ (2004) 31(1) Australian Journal of Communications 89.

[4] US Free Trade Agreement Implementation Act 2004 (Cth).

[5] Phillips Fox, Digital Agenda Review: Report and Recommendations (January 2004); available at <http://www.ag.gov.au/DigitalAgendaReview> .

[6] Attorney-General’s Department, Fair Use and Other Copyright Exceptions: An examination of fair use, fair dealing and other exceptions in the Digital Age: Issues Paper (May 2005); available at <http://www.ag.gov.au/www/agd/agd.nsf/Page/Publications_Copyright-ReviewofFairUseExeption-May2005> . For a useful summary of issues surrounding this review, see David Lindsay, ‘Fair Use and Other Copyright Exceptions: Overview of Issues’ (2005) 23 Copyright Reporter 4.

[7] For an exception, see Copyright Act 1968 (Cth) s 198 (bequests of unpublished manuscripts and artistic works).

[8] See eg Re Dickens; Dickens v Hawksley [1935] Ch 267; Pacific Film Laboratories Pty Ltd v Commissioner Taxation [1970] HCA 36; (1970) 121 CLR 154.

[9] The Copyright Act protects the following categories of work: literary, dramatic, musical and artistic works, sound recordings, cinematograph films, sound and television broadcasts, and published editions. For discussion, see eg Emily Hudson and Andrew T Kenyon, Copyright and Cultural Institutions: Guidelines for Digitisation (2005) 14-21; available at <http://www.law.unimelb.edu.au/cmcl> .

[10] Copyright Act 1968 (Cth) s 31(1)(a).

[11] Copyright Act 1968 (Cth) ss 36(1), 101(1).

[12] Copyright Act 1968 (Cth) s 14.

[13] See eg Hawkes & Son (London) Ltd v Paramount Film Service [1934] Ch 593.

[14] For discussion of legal and technological developments that have given rise to the open licensing movement, see eg James Boyle, ‘The Second Enclosure Movement and the Construction of the Public Domain’ (2003) 66 Law and Contemporary Problems 33. Open licences have been adopted by cultural institutions (such as the Creative Archive Licence Group, initiated by the BBC, see <http://creativearchive.bbc.co.uk> ) and more broadly (such as the Creative Commons suite of licences, see <http://www.creativecommons.org> ).

[15] See eg Attorney General of New South Wales, Notice: Copyright in Legislation and Other Material, Gazette No 110 of 27 September 1996 (varied in Gazette No 20 of 19 January 2001), available at <http://www.legislation.nsw.gov.au/copyright_notice.html> .
[16] Copyright Act 1968 (Cth) s 115.

[17] Copyright Act 1968 (Cth) ss 40, 41, 41A, 42, 43(2), 103A, 103AA, 103B, 103C, 104(b), (c).

[18] The potential liability of libraries for infringing copies made by patrons on self-service photocopiers was explored by the High Court of Australia in University of New South Wales v Moorhouse [1975] HCA 26; (1975) 133 CLR 1. See also Copyright Act 1968 (Cth), ss 39A, 104B.

[19] De Garis v Neville Jeffress Pidler Pty Ltd (1990) 95 ALR 625.

[20] Kimberlee Weatherall and Emily Hudson, Response to the Issues Paper: Fair Use and Other Copyright Exceptions in the Digital Age (July 2005), available at <http://www.law.unimelb.edu.au/ipria/research> .

[21] Note that a broader definition of ‘research or study’ was accepted by the Canadian Supreme Court in CCH Canadian Ltd v Law Society of Canada (2004) 236 DLR (4th) 395. There, it was held that reproductions made by a photocopying service operated by a non-profit library for legal professionals were fair dealings. The Supreme Court did not refer to the De Garis in reaching its decision.

[22] For a full discussion, see Hudson and Kenyon, Guidelines for Digitisation above n 9, chapter 6.

[23] Copyright Act 1968 (Cth) s 49.

[24] Copyright Act 1968 (Cth) s 50.

[25] Copyright Act 1968 (Cth) ss 51A(1), 110B.

[26] Copyright Act 1968 (Cth) s 51A(2).

[27] The word ‘potential’ is used deliberately. In fact, there are good arguments that, within the existing libraries and archives provisions, there are areas of ambiguity, and further, that understanding detailed provisions requires high degrees of expertise (or legal advice) by non-legal actors, which in fact reduces their understanding of the law. This is discussed further below n 48 to 49 and surrounding text; see also Weatherall and Hudson, above n 20.

[28] Section 51A(1)(a) only applies to works held in manuscript form and original artistic works. Note that published materials can be reproduced under the neighbouring replacement copying provisions: Copyright Act 1968 (Cth) ss 51A(1)(b), (c). However, those provisions only arise where an institution is responding to damage, deterioration or loss that has already occurred.
[29] For discussion on the structure of copyright exceptions, see Emily Hudson, Andrew T Kenyon and Andrew F Christie, ‘Modelling Copyright Exceptions: Law and Practice in Australian Cultural Institutions’ in Fiona Macmillan (ed), New Directions in Copyright Law (Volume 4) (2007) in press.

[30] Copyright Act 1968 (Cth) ss 41A, 103AA.

[31] In its media release dated 14 May 2006, the Attorney-General’s Department referred to the introduction of a ‘new flexible dealing exception’: Attorney-General’s Department, ‘Major Copyright Reforms Strike Balance’ (Media Release 088/2006). This language has not been used in the legislation: instead, section 200AB is headed ‘Use of works and other subject-matter for certain purposes’. Interestingly, later explanatory material refers to this provision as ‘fair use’: eg, Further Explanatory Memorandum, Copyright Amendment Bill 2006 (Cth) [46] – [62].

[33] Copyright Act 1968 (Cth) s 200AB(2).

[35] For an argument that digital searching is the electronic equivalent of analogue browsing, and should be permitted as freely, see eg Anthony Mason, ‘The Users’ Perspective on Issues Arising in Proposals for the Reform of the Law of Copyright’ [1997] SydLawRw 3; (1997) 19 Sydney Law Review 65. But for criticisms of this view, see eg Australian Copyright Council, ‘Submission to Digital Agenda Review’ (September 2003) available via <www.copyright.org.au/policy-research/policy/submissions.htm>.
[36] Andrew T Kenyon and Emily Hudson, Copyright Amendment Bill 2006: Submission to the Senate Standing Committee on Legal and Constitutional Affairs (October 2006).
[37] Copyright Amendment (Digital Agenda) Act 2000 (Cth) s 3(d).

[38] Supplementary Explanatory Memorandum, Copyright Amendment Act 2006 (Cth) [62].

[39] Copyright Act 1968 (Cth) s 200AB(1). Note that flexible dealing will not apply if the use would not infringe copyright due to another provision of the Copyright Act – including where that provision is subject to special conditions or requirements: s 200AB(6). The latter means that people cannot avoid compulsory licensing schemes by invoking the (unremunerated) flexible dealing exception.

[40] Copyright Act 1968 (Cth) s 200AB(7). Article 13 of TRIPS provides that ‘Members shall confine limitations or exceptions to exclusive rights to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder’. See also Berne Convention for the Protection of Literary and Artistic Works, article 9(2).

[41] For a comprehensive examination, see eg Sam Ricketson and Jane C Ginsburg, International Copyright and Neighbouring Rights: The Berne Convention and Beyond (2nd edition, 2006).

[42] For discussion of justifications for statutory exceptions, see eg Wendy J Gordon, ‘Fair Use as Market Failure’ (1982) 82 Columbia Law Review 1600; Wendy J Gordon, ‘Excuse and Justification in the Law of Fair Use: Commodification and Market Perspectives’ in Niva Elkin-Koren and Neil Weinstock Netanel (eds), The Commodification of Information (2002).

[43] See eg comments and citations in David J Brennan, ‘The Three-step Test Frenzy – Why the TRIPS Panel Decision Might be Considered Per Incuriam’ [2002] Intellectual Property Quarterly 212.

[44] See eg Kimberlee Weatherall’s blogs on this subject: ‘The (New Australian) “Flexible Dealings” Exception to Copyright’ (5 July 2006) and ‘An Analysis of the Copyright Exceptions Exposure Draft’ (5 October 2006), available at <http://weatherall.blogspot.com> .

[45] World Trade Organization, United States – Section 110(5) of the US Copyright Act, Report of the Panel, WT/DS160R, 15 June 2000.

[46] Discussed in Marin Senftleben, Copyright, Limitations and the Three-Step Test: An Analysis of the Three-Step Test in International and EC Copyright Law (2004); Uwe Rosemann, ‘Trends in German document delivery services (with particular reference to subito)’ 31(3) Interlending & Document Supply 180.

[47] Sam Ricketson, The three-step test, deemed quantities, libraries and closed exceptions (2002) (advice prepared for the Centre for Copyright Studies Ltd).

[48] See eg Laura N Gasaway, ‘Values Conflict in the Digital Environment: Librarians Versus Copyright Holders’ (2000) 24 Columbia-VLA Journal of Law and the Arts 115.

[49] For discussion of rules and standards in legislative drafting, see eg Isaac Ehrlich and Richard A Posner, ‘An Economic Analysis of Legal Rulemaking’ (1974) 3(1) The Journal of Legal Studies 257.

[50] For instance, the provision allowing reproduction of collection items for ‘administrative purposes’ does not apply to sound recordings and cinematograph films: Copyright Act s 51A(2).

[51] Copyright Act 1968 (Cth) ss 51B, 110BA, 112AA.

[52] Explanatory Memorandum, above n 32 [6.105].

[53] Supplementary Explanatory Memorandum, above n 38 [76], [81], [87], [95], [100], [104], [108], [115].
[54] See eg National Archives of Australia, Digital Preservation: Illuminating the Past, Guiding the Future (2006), available at <http://www.naa.gov.au> .

[55] Copyright Act 1968 (Cth) s 51B(1)(a).
[56] Supplementary Explanatory Memorandum, above n 38 [71] – [73], [89] – [91], [110] – [111].

[57] Copyright Act 1968 (Cth) ss 51B(2), (3), (4).

[58] Copyright Act 1968 (Cth) ss 110BA (2), (3), (4), (5).

[59] Copyright Act 1968 (Cth) s 112AA(2).

[60] Copyright Act 1968 (Cth) ss 51B(1)(b), 110BA(1)(b), 112AA(1)(b).

[61] Copyright Act 1968 (Cth) ss 51B(4), (5), 110BA(3), (5), (6), 112AA(2), (3).

[62] Copyright Act 1968 (Cth) ss 51B(3), (5).

[63] Copyright Act 1968 (Cth) s 51B(3).

[64] Supplementary Explanatory Memorandum, above n 38 [75], [79], [85], [93], [97], [102], [106], [113].
[65] See Kenyon and Hudson, Copyright Amendment Bill 2006: Submission, above n 36.

[66] As defined in Copyright Act 1968 (Cth) ss 10(2), (2A).

[67] Copyright Act 1968 (Cth) s 40(3) (now repealed).

[68] Supplementary Explanatory Memorandum, above n 38 [63] – [69].

[69] Copyright Act 1968 (Cth) s 40(5), item 1.

[70] Copyright Act 1968 (Cth) s 40(5), item 2.

[71] Supplementary Explanatory Memorandum, above n 38 [66].

[72] New note at the end of Copyright Act 1968 (Cth) ss 49(2), (2C), 50(2).

[73] Copyright Act 1968 (Cth) s 49(4) (previous wording: ‘relate to the same subject matter’).

[74] Explanatory Memorandum, above n 32 [6.72].

[75] Copyright Act 1968 (Cth) s 50(8)(b).

[76] Copyright Act 1968 (Cth) ss 49(5AA). Subsection 50(7BA) contains similar language.

[77] Copyright Act 1968 (Cth) s 49(5AB).