Australia - Copyright Law Reform Update

Australia - Copyright Law Reform Update - a lot to celebrate and a lot to look forward to

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

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.

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