ALRC Copyright and the Digital Economy Discussion Paper
Proposals relevant to libraries, archives and the cultural sector
Snapshot
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The ALRC has proposed introducing a broad and flexible “fair use”
exception to replace many of the existing exceptions, including the
flexible dealing provision, s200AB.
The new fair use exception would be open-ended and provide a nonexhaustive list of fairness factors to be taken into account and a nonexhaustive list of illustrative purposes (including most of the current fair
dealing exceptions). This will provide a broader and more flexible
exception and should be easier for cultural institution staff to understand
and apply than they have experienced with using section 200AB.
If fair use is not adopted, the ALRC has recommended the repeal of
s200AB and replacement with a fair dealing right for libraries and archives,
including the fairness factors proposed by ALRC for the fair use exception.
Contracting out of the libraries and archives exceptions (including
document supply, interlibrary loan and preservation copying) and certain
other existing exceptions would no longer be allowed.
Issues of particular importance going forward include:
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The ALRC has asked for feedback on “voluntary extended collective
licensing… to deal with mass digitisation projects by libraries, museums and
archives.” To what extent voluntary collective licensing would affect the
application of the fair use exception for orphan works is unclear
Use of orphan works is to be facilitated by fair use – if the use is found
not to be fair, where a “reasonably diligent search” has been carried out,
remedies would be limited.
Limited circumstances in which exceptions are protected from override by
contract – while library and archival copying provisions are protected from
override by contract, uses for education, private and domestic use are not.
Amendments to the document supply provision which further restrict the
manner of access to supplied materials.
The deadline for responses to the DP is 31 July. Submissions can be
made by email to info@alrc.gov.au. There is also likely to be a period
of further consultation between the ALRC and stakeholder groups over
the next two months. The ALRC must issue its final report no later than
30 November 2013.
Summary Abstract
Below is a summary of some of the main recommendations, proposals and
issues to consider for the libraries, archives and the cultural sector. A more
comprehensive outline will be distributed by the ALCC after their roundtable on
the 25th June.
Fair Use [Chapter 4]
The new fair use exception is envisioned to be “a broad, flexible exception.”
The exception would operate as follows:
 It would state that “a fair use of copyright material does not infringe
copyright.”
 There would be a non-exhaustive list of factors to be considered in
determining whether a use is fair. These are proposed to be:
o the purpose and character of the use;
o the nature of the copyright material used;
o in a case where part only of the copyright material is used—the
amount and substantiality of the part used, considered in relation
to the whole of the copyright material; and
o the effect of the use upon the potential market for, or value of, the
copyright material
 There would be a non-exhaustive list of illustrative uses or purposes
which would include:
o research or study;
o criticism or review;
o parody or satire;
o reporting news;
o nonconsumptive;
o private and domestic;
o quotation;
o education; and
o public administration.
 The ALRC has asked if there are any other illustrative purposes that
should be included.
Libraries, Archives and digitization [Chapter 11]
Repeal of section 200AB
 The ALRC recommends the repeal of s200AB and envisions the fair use
test should be used when “determining whether uses of copyright material not
covered by specific libraries and archives exceptions infringe copyright.” If fair
use is not enacted it calls for a new fair dealing provision for libraries and
archives that incorporates the fairness principles.
Preservation copies
 An new exception is proposed (in addition to fair use) to permit libraries and
archives to make copies for preservation purposes, with no limits as to the
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number of copies, the format of copies or whether they are published or
unpublished materials.
The ALRC recommends that this exception should not apply to copyright material
that can be commercially obtained at an ordinary commercial price.
Changes to document supply provision
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The ALRC proposes that “Section 49 of the Copyright Act should be retained but
amended to provide that, where a library or archive supplies copyright material
in an electronic format in response to user requests for the purposes of research
or study, the library or archive must take measures to:
(a) prevent the user from further communicating the work;
(b) ensure that the work cannot be altered; and
(c) limit the time during which the copy of the work can be accessed.
Voluntary extended collective licensing for mass digitisation,
 The ALRC has asked whether “voluntary extended collective licensing be
facilitated to deal with mass digitisation projects by libraries, museums and
archives.”
Orphan works
 Use of orphan works facilitated under fair use
 The ALRC proposes introducing a limitation on remedies for infringement where
it can be demonstrated a ‘reasonably diligent search’ has been undertaken
 A ‘reasonably diligent search’ is to take account:
o How and by whom the search is conducted
o Technologies, databases and registers available at the time
o Any guidelines, industry practices on ‘diligent search’
Contracting Out [Chapter 17]
Protection of library and archive exceptions from contracting out
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Agreements that exclude or limit the operation of the exceptions for libraries and
archives and the fair use and fair dealing exceptions (to the extent that they
apply to the use of material for research and study, criticism or review, parody
or satire, reporting news or quotation) will have no effect.