Response to Copyright and the Digital Economy
Discussion Paper released by the Australian Law Reform
Commission
The Council of Australasian Archives and Records Authorities (CAARA) comprises the
heads of the government archives authorities of the Commonwealth of Australia, New
Zealand and each of the Australian States and Territories.
CAARA welcomes the opportunity to provide feedback on the discussion paper.
4. Fair Use.
CAARA is supportive of the inclusion of a ‘broad, flexible exception for fair use’, as
identified in proposal 4.
7. Fair Dealing
If fair use is not enacted then a fair dealing exception should be created for public
administration purposes, which includes local government entities, and provides for such
things as:
 Normal recordkeeping and/or administrative actions (e.g. digitising incoming
correspondence and electronically filing it); and,
 The provision of copies of copyright material where required by statute (e.g. the
release of information under freedom of information legislation)
8. Non-consumptive Use
CAARA is broadly supportive of proposal 8.
10. Transformative Use and Quotation
CAARA is broadly supportive of proposal 10.
11. Libraries, Archives and Digitisation
CAARA is supportive of proposals 11–1, 11–2 and 11–3 that would enable archives to use
either fair use or fair dealing (depending on which amendments are adopted) when making
decisions about whether uses of copyright material not covered by specific libraries and
archives exceptions infringe copyright.
Much of the discussion in this section appears to be predicated on the idea that the majority of
materials in archives, libraries and museums is commercially available, or has been created
for commercial use. In the case of government archives this is not the case. The majority of
materials in our collections for which the crown does not own copyright were authored by
ordinary individuals conducting business with government agencies. As noted by the National
Archives of Australia in its submission to the Issues Paper “Government archives hold large
CAARA Response to Copyright and the Digital Economy Discussion Paper
amounts of copyright material which has significant cultural, historical and evidentiary value
but not commercial value as intellectual property.”
The following recommendations and comments are made based on the situation described
above.
Extended collective licensing
The core issue with applying extended collective licensing to a government archival
collection is that there is no collecting agency that represents the copyright holders in a
government archival collection. In both the UK (11.50) and Europe (11.54) the proposed
extended collective licensing will require the collecting society to be significantly
representative of rights holders affected by the scheme. This is not just because the decision to
grant an ECL might diminish the rights of copyright holders, but it is important for equity
purposes. Funds collected from an ECL should pass back to the rights holders.
Unfortunately, there is no collecting society that is representative of the copyright holders of
government archival material, which would mean that (if the principle of representation is
adopted) archives could not make such arrangements with current collecting societies.
The age of government archival material and the fact that much of it is unpublished means
that in many instances copyright will have devolved to the descendants of the original author.
This also makes it very difficult for collecting societies to be representative of the copyright
holders. Current surveyors, for example, are not representative of the current copyright
holders of the material of long dead surveyors. In general, living published authors are not
representative of the descendants of ordinary people.
It is difficult to identify a mechanism that would allow an ECL to be negotiated for a
government archival collection due to the issues of equity and representation. Therefore
CAARA does not support the adoption of extended collective licenses as a means to enable
mass digitisation or to deal with orphan works (see discussion below).
Limiting copyright on unpublished works
An alternative to an extended collective license, would be to treat published and unpublished
works similarly, and to expire copyright after a period of time. This is an approach taken in
both the UK1 and US2:
This is similar to the existing Div 5, S51, which gives an archive the right to provide a copy
of an unpublished work that it holds and is open to public inspection, provided the author has
been dead for 50 years. As it stands, this section is not particularly workable because:
 The section does not apply to works authored by an organisation.
 It requires an archive to know the year of death for the author. If the original author
was an ordinary Australian, it is difficult to reliably or easily identify the date of death.
 This right is qualified by a requirement that the officer in charge of the archive must
be satisfied that the person requesting the copy requires it for research, study, or with a
1
In the UK (http://www.ipo.gov.uk/types/copy/c-duration/c-duration-faq/c-duration-faq-unpublished.htm) , the
term of protection for works created after 1 January 1996 does not depend on whether the work is published.
There are transition clauses for older material.
2
In the US (http://copyright.cornell.edu/resources/publicdomain.cfm) unpublished and unregistered works have
a copyright period of 70 years after the death of the author, or 120 years from the date of creation for anonymous
works, corporate authorship, or where the date of death is not known.
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CAARA Response to Copyright and the Digital Economy Discussion Paper
view to publication. This approval step means that an archive cannot electronically
communicate unpublished works over the internet.
CAARA recommends that amendments be made to the Copyright Act to limit copyright on
unpublished works along similar lines to statutes in the UK or US. While this
recommendation would not resolve issues regarding the copying of more recent materials it
would at least enable government archives to make their extensive nineteenth and early
twentieth century collections available through digitisation and other means.
Preservation copying
Another issue dealt with in this section is preservation copying. CAARA supports the
proposed introduction of an exemption for preservation purposes (Proposal 11-4). We agree
that the current exemptions are unworkable and place irreplaceable material at risk of loss.
However, we would prefer the exemption to allow reasonable ‘preservation processes’ rather
than simply cover copies.
Simply allowing for the copying of material for preservation purposes does not enable the
format-shifting of archival copies of works to ensure that records do not become obsolete (see
paragraph 11.78). The focus on copies, rather than processes, is unduly restrictive and does
not allow for future development of preservation techniques.
CAARA is concerned that the effect of a general exemption for preservation may be nullified
by Proposal 11-6, which prohibits preservation copying if a commercially available copy is
available. As discussed in 11.86, many of the copies made will be for the purpose of recovery
from corruption, or loss due to system failure, error, or malicious action. Application of
Proposal 11-6 would mean that if the material was commercially available, each of these
copies would need to be purchased. Similarly, if it was necessary to format-shift the work,
this would not be allowed if the material could be commercially obtained (irrespective of
whether or not the commercial copy was in a suitable long term preservation format).
The point of Proposal 11-4 is to allow libraries and archives to take the necessary actions to
preserve works without infringing copyright. Simply preserving the material does not affect
the ability of the owner to commercially exploit the material, and so it does not seem that
Proposal 11-6 is necessary to protect the rights of the owners. Preservation and replacement
are not the same and should not be equated.
Document supply for research and study
Proposal 11–7 is not supported by CAARA. This proposal seeks to make archives responsible
for preventing copyright infringement by our users by putting in place technological measures
to prevent users from communicating copyrighted materials. This would be challenging and
very expensive for our organisations to undertake. The size of our collections and difficulty in
determining the copyright status of each individual record makes this an unworkable
proposal. Also, we do not believe that archives (or libraries or museums) should be
responsible for policing the behaviour of our users in the area of copyright beyond making
our users aware of their responsibilities under copyright law.
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CAARA Response to Copyright and the Digital Economy Discussion Paper
12. Orphan works
CAARA is concerned that the proposed reforms for orphan works do not take into account the
nature of government archival collections, and hence would be ineffective in increasing the
quantities and types of orphan works available to the general public.
Orphan works are a particular problem for archives for the following reasons:
 Fundamental archival principles require archives to make available the full record. To
publish only the portion where copyright is clear, but omit the ‘other side of the story’,
would be to destroy the integrity of the record and limit its value.
 Copyright never expires on unpublished works, hence there is no easy date before
which material could assumed to be out of copyright. Even a letter penned in 1856 is
in copyright and might have a copyright owner.
 A significant portion of records in a government archive are orphans. The copyright of
anything received by a government agency is owned by the creator, and once in an
archive is likely to be an orphan. This is partially because of the age of the material –
the creator is likely to be dead, or the organisation have ceased to exist. But it is also
because the creators are ordinary people and organisations. These are much harder to
track down than the relatively small number of published authors or publishers.
 Archival material is unique. This limits the effectiveness of databases of copyright
searches. If one library has conducted a diligent search for the copyright holder of a
book, then other libraries with a copy of that book could use the results of that search.
If one archive conducts a search for the copyright holder of a letter, however, this is of
little use to other archives because no other archive will hold that letter.
The two specific suggested approaches in the Discussion Paper are limitation of remedies
where a reasonably diligent search has been conducted, and extended collective licensing.
Both of these approaches have issues when applied to archives. (Note: extended collective
licensing has already been discussed above.)
CAARA recommends that any amendments to the Copyright Act should consider
distinguishing between works created for or intended for commercial exploitation by their
creators, and those which were not, and should include an exception for the copying of works
where the public benefit might be said to outweigh or over-ride the private.
Reasonably diligent search
CAARA is concerned that it would not be possible to conduct a search for most authors of
archival material that would be considered a ‘reasonably diligent search’. This is
acknowledged in the Discussion Paper in 12.75, and the Paper in 12.76 suggests instead the
use of extended collective licensing. The problems with extended collective licensing have
been discussed above.
In theory, a reasonably diligent search for an archival author would resemble a search for any
author of an orphan work. It would be necessary to try and identify whether the author was
still living, and, if not, who inherited the literary rights to their work. However, authors of
government archival material are ordinary Australian individuals, companies, and
organisations. This raises the following issues in making a reasonably diligent search:
 Scale. Just about everyone is represented as an author in a significant government
archival collection. For example, Public Record Office Victoria holds the wills of
everyone who died with property in Victoria. Conducting a reasonably diligent search
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CAARA Response to Copyright and the Digital Economy Discussion Paper
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for the current rights holders in order to digitise this collection would involve
identifying the current rights holders for a significant number of deceased persons in
Victoria.
Lack of clear author identity. Authors are frequently identified only by a name (which
may not be their official name). This makes it difficult to identify a unique individual
in order to start a search for the current holders.
Lack of clear transmission of ownership. Copyright holders of archival material are
not professional authors, hence it is unlikely that ownership of literary rights would be
explicitly identified in wills. Consequently even if an archive identified the
descendents, they may not know whether they hold the necessary rights.
Age of material. Due to the persistence of copyright and the fact that much archival
material is unpublished it might be necessary to trace ownership through many
generations. The age of a record enormously expands the scope of the necessary
search.
Mechanisms such as registers of orphan works would not be of assistance, as items in
an archive are normally unique. This is different to published work where copies are
held by many institutions.
Notwithstanding the issues identified by stakeholders in the Discussion Paper and given that
extended collective licenses are not suitable for government archives, CAARA recommends
that more guidance be given on what constitutes a diligent search so as to provide some level
of assurance to our organisations.
Again, thank you for the opportunity to comment. Please contact me via (03) 6233 7291 or
ross.latham@education.tas.gov.au should you wish to discuss the issues we have raised.
Yours sincerely
Ross Latham
Chair
Council of Australasian Archives and Records Authorities
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