Orphans may find new homes Proposed amendments to the Copyright Act

What you need to know

• The Government has published an exposure draft of its Copyright Amendment (Access Reform) Bill 2021.
• The exposure draft proposes amendments to the Copyright Act relating to orphan works, a fair dealing quotation exception, libraries and archives, educational institutions and statutory licences.
• While libraries, archives and research and educational institutions will likely welcome the proposed changes, copyright owners may be concerned about attenuation of their rights. 

What you need to do

• Keep an eye on the progress of the draft bill and the changes it proposes to implement.

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):

• A regime to deal with orphan works;
• A new fair dealings exception for quotations;
• Clarifying and expanding the library and archives exceptions; 
• Updating and restoring the education exceptions; and
• Streamlining the statutory licensing regime.

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

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.

Quotation Fair Dealing

The Exposure Draft also introduces a new fair dealing exception for quotations.

The exception is subject to the following conditions:

• the use must be by a library or archives, educational institution, the Commonwealth or a State (or an authorised officer of one of the preceding entities), or by a person or organisation for the purpose of research;
• the quotation must be for a non-commercial purpose, or, if it is for a commercial purpose in relation to a product or service, the quotation must be immaterial to the value of the product or service;
• the copyright material must already be public (though the Discussion Paper questions whether this should be expanded to unpublished works to allow the use of unpublished archives);
• in the case of a copyright work, the moral rights of the author must be respected; and
• where possible, the name or title of the copyright material must be identified.

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.

Clarifying and Expanding Library and Archives Exceptions

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.

Changes include:

• allowing libraries and archives to make electronic copyright material which is part of their collection available online;
• allowing libraries and archives to make copyright material (including audio-visual materials) available for persons for personal or domestic use in addition to use for research or study;
• clarifying what constitutes a "reasonable portion" of material where a copy is requested;
• allowing libraries and archives to share copyright material between them; 
• allowing libraries and archives to make use of unpublished copyright material; and
• allowing libraries and archives to retain electronic copies of copyright material requested (rather than having to destroy them and redo them for every request).

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.

Updating and Restoring Education Exceptions

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.

Changes include:

• allowing copyright material to be performed or seen or heard in the course of giving or receiving educational instruction;
• allowing the temporary recording of lessons including copyright material;
• permitting making copyright material available online in the course of a lesson; and
• allowing educational institutions to play sound recordings for non-educational activities (reinstating a previously removed exception).

Statutory Licences

The statutory licensing amendments are intended to streamline the current government statutory licensing scheme.

The amendments focus primarily on:

• extending collective licensing arrangements to allow communication of copyright material;
• removing sampling survey requirements;
• introducing an exception to allow the government to use copyright material (especially correspondence) provided to the government for services of the government if the use is reasonable and is not for commercial advantage.

Impact

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.

What's Next?

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.