By Delia Browne National Copyright Director, National Copyright Unit | CC Law Reform Platform and CC Australia Chapter

2017 was the year that Copyright was a gift that kept on giving in Australia as a raft of new copyright laws and regulations were finally passed after many years of dogged advocacy by the Australian Education sector.

As we all know Copyright law reform takes a very long time, and the process can be disheartening and toxic but with armed with compelling evidence and arguments and tenacity, it is possible to achieve great results. This is important to keep in mind in the EU and other jurisdictions currently undergoing copyright law reform reviews.

See below for more details in relation to the recent 2017 changes and what copyright law reform has in store for 2018.

The Copyright Amendment Disability Access and Other Measures Act (CADM) 2017

image of braille

Close up of Braille page by Lrcg2012 CC BY-SA 3.0

CADM was introduced in June 2017 and became law in December 2017. See here for a copy of the Act. The new law included a number of reforms that have been sought by the education sector for years.

Disability copying

The Act introduced a new fair dealing exception for access to copyright material by persons with a disability (Section 113E) and a new definition of ‘person with a disability’ to account for a wider range of disabilities and learning difficulties. The new definition covers all persons with a disability that causes difficulty reading, viewing, hearing or comprehending copyright material.

The fair dealing exception will permit, for instance, enlarging text and graphics, and making changes to the format. CADM also fulfils the provisions of the Marrakesh Treaty, which aims to facilitate the import and export of accessible format copies of published works, making Australia one of the first of 20 countries to implement the Marrakesh Treaty for the visually impaired.

Another new disability exception applies to ‘organisation assisting persons with a disability’ (Section 113 F). This exception will enable educational institutions and not-for-profit organisations with a principal function of providing assistance to persons with a disability to rely to facilitate access to copyright material by persons with a disability. This means that teachers and educational institutions will be able to make format-appropriate versions of educational materials for students with disabilities

Streamlined statutory licence

The new provision (Section 113 P) resulted from collaboration between the education sector (schools, TAFEs, universities) and collecting societies (Copyright Agency and Screenrights) in an effort to streamline and simplify the educational statutory licences:

  • There is one licence scheme to replace the existing VA and VB licences.
  • There is no longer any express limit on the amount of a work that can be copied/communicated. The only limitation is that the amount copied/ communicated “does not unreasonably prejudice the legitimate interests of the owner of copyright”.
  • The prescriptive rules in the existing statutory licences – ie rules regarding marking, anniversary copying, limits on the amount of a work that can be made available online, surveys/record keeping, methods of determining remuneration, etc, have been removed. There is now flexibility for schools to reach agreements with the collecting societies as to what administrative arrangements will apply. If no agreement can be reached, the Copyright Tribunal will have power to determine these matters.

At this stage, the practical operation of the new streamlined licence provisions have yet to be worked out by the education sector and the relevant collecting societies.

Exam copying exception

CADM corrected a long-standing anomaly that Australia’s Copyright Law allowed educational institutions to include certain types of copyright works in hard copy exam papers but not to include the same content in online exams.

Education institutions are now able to use any kind of copyright material in exams (including broadcasts, sound recordings and films), and may use these materials in online exams.

Preservation copying

CADM updates and streamlines the exceptions allowing libraries and archives to make copies of copyright material for preservation purpose (Division 3 of the new Part IVA).

Libraries and archives are

  • no longer required to wait until material has been damaged or suffered deterioration before making preservation copies.
  • permitted to make multiple preservation copies, and make available electronic preservation copies to the public without infringing copyright.

Unpublished Works

CADM also corrects another longstanding anomaly. Previously, there were different rules for published and unpublished material and unpublished materials could remain in copyright in perpetuity. CADM introduces a new standard term of protection of copyright materials: for the ‘life of the author plus 70 years’ regardless of whether it is a published and unpublished work. The standard term will be effective for works created before 1 January 2019 that are unpublished by that date.

Where the creator of copyright material cannot be identified, the standard term of protection will be ‘date made plus 70 years’. However, if the material is made public within 50 years of its making, copyright subsists from the date the material was first made public plus 70 years.

New Technology Protection Measures Exceptions

On 22 December 2017, the Government enacted new TPM exceptions by way of regulation. From 22 December 2017, education institutions are permitted to circumvent a Technology Protection Measure for any of the following purposes:

  • relying on the streamlined statutory licence in s 113P of the CADM Act.
  • relying on either of the two new disability copying exceptions in ss 113E and 113F of the CADM Act.
  • relying on s 200AB(3) – flexible dealing exception which allows education institutions to copy material for educational instruction in limited circumstances.

This reform is well overdue, as education and disability organisations lacked the corresponding TPM exceptions allowing them to make use of existing and new exceptions. For example teachers and schools can now do the following without fear of infringement:

  • copy short extracts of films to use in teaching (for example, including a short extract of the film Gallipoli in a teacher’s classroom presentation on World War 1.
  • provide disabled students with content in accessible formats such as a captioned version of a DVD for a student with hearing disabilities.

The process for enacting these new exceptions is a little convoluted. In the period 22 December 2017 until 31 March 2018, the relevant provisions are contained in ss 8 and 9 of the Copyright Legislation Amendment (Technological Protection Measures) Regulations 2017. From 1 April 2018, the relevant provision is contained in s 40 of the Copyright Regulations 2017.

Unfortunately a proposed TPM exception for fair dealing by students and researchers was dropped from the final version of the regulations pending further consideration of whether it is warranted.

2018 – More Copyright Law Reform on the horizon

While the 2017 reforms fixed many of the education sector copyright issues, they have not fixed all of the problems faced by Australian education sector. Education’s remaining outstanding law reform issues are:

  • the introduction of a flexible fair use exception as recommended by the Australian Law Reform Commission (ALRC) and supported by the Productivity Commission (PC).
  • the expansion of safe harbour provisions to include education and libraries.
  • amending the Copyright Act to ensure contract cannot override copyright exceptions.
  • an orphan works scheme.
  • improved governance of Collecting Societies.

Flexible Fair Use, Contract and Orphan Works

The ALRC and the Productivity Commission recently recognised that copyright law is standing in the way of Australian schools using innovative, digital technology in the classroom. For example:

  • there are different copyright rules depending on whether a teacher:
    • is writing on a blackboard or an interactive whiteboard; or
    • is projecting an artwork or text onto a screen or interactive whiteboard.
  • Australian schools are paying to use freely available internet content such as free tourism maps, online health fact sheets, and the home page of a corporate website. Schools in other countries use this content without payment.

Although the recent reforms have simplified the way teachers can use digital technologies, it does not solve these fundamental issues. Both the ALRC and the Productivity Commission recommended that the Government enact a fair use exception to ensure copyright is flexible enough to meet the needs of Australian education in a way that does not harm copyright owners’ markets.

We understand that the Government intends to release a discussion paper in mid February 2018 that will include:

  • Consultation on how best to inject more flexibility into copyright law. They are not going to consider whether they should/shouldn’t enact a flexible exception, but rather what kind of model is appropriate.
  • Consultation on what kind of orphan works scheme should be adopted.
  • Consultation on whether to enact that Productivity Commission’s recommendation to amend the Copyright Act to prevent contract overriding copyright exceptions.

Safe Harbours

On 6 December 2017, the Government introduced the Copyright Amendment (Service Providers) Bill 2017. The Bill expands the copyright safe harbours to include schools and other educational institutions. See here for a copy of the Bill and here for the Explanatory Memorandum. There is no limitation that restricts the safe harbour to “educational purposes”, which means that education institutions will be able to rely on the safe harbour even when engaging in collaborative activities with industry. This is significant: the Government accepted Schools s concerns that a safe harbour that applied only to “educational purposes” would limit the ways in which schools could engage with the wider community while still claiming the benefit of the safe harbours.

The Bill will be considered by the Environment and Communications Committee due to report by 19 March 2018 and will likely be debated in the 2018 Autumn sitting of Parliament. There will also be consultation on new regulations to accompany the updated safe harbour scheme. We expect these to be released for public comment early in 2018.

As for whether other service providers such as search engines and social media platforms should be included in the safe harbours, the Government intends to consult further on this in 2018 before making a decision.

Improved governance of Collecting Societies

Following the Productivity Commission’s recommendation for a comprehensive review of the governance of collecting societies including the Collecting Societies Code of Conduct, the Department of Communications commenced a review of the Collecting Societies Code of Conduct to examine the extent to which the Code promotes fair and efficient outcomes for both members and licensees of copyright collecting societies in Australia. In particular the review will assess:

  • whether the Code is meeting its rationale and objectives, including promoting confidence and participation in the system, and mitigating any potential market power issues where these occur in relation to collecting societies.
  • the extent to which the Code promotes transparency, accountability and good governance, including by examining whether the Code contains sufficient monitoring, review and dispute resolution mechanisms, and the extent to which the Code represents best practice in comparison with other domestic and international codes and guidelines.
  • and any other matters that are deemed significant and relevant to the scope of the review following stakeholder consultation may also be examined.

See here for Discussion Paper and Collecting Societies Code of Conduct etc.

The Education sector has for many years been concerned with the lack of transparency and oversight collecting societies. See here for copy of the Copyright Advisory Groups (Schools and TAFEs) submission to the review.

The draft report is expected for public release in early 2018.

Watch this space

Be on the look out for more updates from Australia. In the meantime, we hope our recent copyright law reform success may assist current and upcoming copyright law reform reviews around the world. We can all learn from and build on the work of each other.