Orphans may find new homes Proposed amendments to the Copyright Act
30 March 2022
30 March 2022
The Commonwealth Government has published an Exposure Draft of its Copyright Amendment (Access Reform) Bill 2021 (Cth) and an accompanying discussion paper for stakeholder comment and feedback.
The Exposure Draft focuses on five primary areas of amendment to the Copyright Act 1968 (Cth):
These amendments reflect the ongoing struggle in copyright law to balance the need to protect the rights of creators while allowing access to materials.
In this article we provide an overview of the proposed changes and their potential impacts.
Orphan works are those copyright materials where the owner is either not identifiable or not contactable. Currently, those who wish to make use of orphan works either cannot use them or must take a risk that they will be penalised for infringement.
The Exposure Draft proposes a regime under which users of orphan works will not be found to infringe the copyright in orphan works where they have conducted a "reasonably diligent" search for the owner(s) of the copyright, and the result of the search was that either the owner(s) of the copyright could not be identified, or the identity of the owner(s) could be found but they could not be contacted.
What constitutes a "reasonably diligent" search will depend on a number of factors, including the nature of the copyright material and the purpose and character of the use of the copyright material, the available databases and any relevant industry codes. For example, the Discussion Paper states a more diligent search will be required where the orphan work is to be used for a large scale commercial purpose than if the orphan work is needed for an emergency broadcast. However, creators have indicated they are concerned searchers will not be required to be as industrious as they would like.
If the material is a copyright work, users will still be required to give the author attribution where it is reasonably practicable to identify the author (i.e. they will still be required to respect the author's moral rights).
If, later on, the owner(s) of the orphan work is found, or becomes contactable, it becomes an infringement to engage in in an act comprised in the copyright (but the former use will still not constitute an infringement).
The user will need to agree terms with the owner(s) in relation to ongoing use of the copyright material. If terms cannot be agreed, the Copyright Tribunal can determine appropriate terms. If the user complies with the terms, they will not be held liable for copyright infringement.
The Exposure Draft also introduces a new fair dealing exception for quotations.
The exception is subject to the following conditions:
Unlike some of the other fair dealing exceptions, the proposed section sets out considerations as to the "fairness" of the dealing, including the effect of the dealing on the value of the material and the substantiality of the part dealt with.
What will likely cause some concerns in relation to this new fair dealing exception is that "quotation" is not defined in the Exposure Draft. The Discussion Paper states it is to be given its ordinary meaning, i.e. to repeat or cite "all or some part of copyright material". Copyright owners will undoubtedly be concerned at the implication their entire work can be used under this exception, particularly in circumstances where some commercial use is allowed, and where it will be difficult to determine if the quotation is "immaterial" to a product/service's value. However, the requirement to consider the substantiality of the part used in the dealing when establishing whether it was "fair" may assuage some of these concerns.
The changes to the library and archives exceptions are largely in response to the new digital landscape in which libraries and archives now exist. They also assist in dealing with situations in which people cannot physically visit a library or archive, whether due to distance, disability or COVID-19.
Some limits are placed on these new expanded exceptions, including for example not providing copies where a copy of the material can be obtained within a reasonable time at an ordinary commercial price.
The changes to the education exceptions, similarly to the changes to the library and archives exceptions, are also intended to respond to needs generated by online and remote learning.
The statutory licensing amendments are intended to streamline the current government statutory licensing scheme.
The amendments focus primarily on:
The changes proposed in the Exposure Draft focus on improving access to copyright material for libraries and archives, educational institutions and government. These changes have been prompted particularly by the increased need for digital access as the world moves progressively more online, accelerated by the pandemic's lockdowns, and will undoubtedly be welcomed particularly by educators, librarians and archivists.
While the proposed amendments undoubtedly will provide greater access to copyright materials (in particular those materials stored in archives where copyright owners have been unable to be identified), they have however caused concern for creators, who fear that the amendments are too broad, and it will now be easier for others to use their works without proper licences or compensation. Of particular concern are the new orphan works scheme and the fair dealings quotation exception.
It remains to be seen whether these proposed amendments will strike the difficult balance between the needs of the public to access these materials and the need to incentivise creators by enabling them to profit from their work, or whether further amendments will be necessary.
Submissions in relation to the Exposure Draft closed on 25 February 2022. The Government will now consider the submissions made, and may prepare amendments to the Bill. It is also likely that consultation sessions will be held at which stakeholders can provide further feedback on the Bill.
Authors: Lisa Ritson, Partner and Imogen Loxton, Senior Associate.
The information provided is not intended to be a comprehensive review of all developments in the law and practice, or to cover all aspects of those referred to.
Readers should take legal advice before applying it to specific issues or transactions.