Amendments to the Copyright Act – Copyright Amendment Act, 2006
Background
The Copyright Amendment Act 2006 passed the Australian Parliament on 11 December 2006. The Act represents the government’s response to several enquiries and also to conditions imposed by the Australia-US Free Trade Agreement (AUSFTA). Some amendments are already in force and all of the amendments will be in force by 1 January 2007. This Act embodies many amendments that will be of interest to the University community. Some of the major amendments are summarised below.
Personal Use
'Space-shifting' of Music Recordings
Legal (i.e. non-pirate) music recordings owned by an individual can now be 'space-shifted' to other devices owned by the same person as long as it is for personal use only. For example, you can now make a copy of a CD that you own and put the copy on your iPod or computer. The copy cannot be given away to another person, nor can it be rented or sold. Note that the copy is only for private and domestic use. This means that you can enjoy a copy with family and friends but you cannot use it for any commercial purposes or for public performance. Significantly, you are also not permitted to use this copy for educational purposes – you cannot use this copy in teaching materials. (If you need to use recorded music for teaching consult the Guidelines for the Music Licence.)
'Time-shifting' Television and Radio Programs
Recording television and radio programs for viewing at a later time is permitted for private and domestic use, although it is not the intention of the Act that individuals should be able to build up a library of video recordings. The copy cannot be given away to another person, nor can it be rented or sold and neither can it be used for public performance. These recordings are not suitable for teaching purposes. If you need to record television and radio programs for educational purposes, consult the Audiovisual Guidelines.
'Format-shifting' of Some Formats
Certain items can now be converted into different formats. For example, you can now scan a book, magazine or photograph that you own into digital form. You can also re-format a videotape that you own into DVD format. There are certain conditions to this use. You must retain the original – you cannot give it away once you have copied it. You cannot give away the copy to someone else – it is for your personal use only. Nor can the item be rented or sold.
Fair Dealing for Parody and Satire
A new fair dealing exception has been created for parody and satire. The nature of parody necessarily requires substantial copying for the purposes of humour or ridicule.
Technological Protection Measures (TPMs)
From 1 January 2007 it will not be permitted to use a circumvention device to break a TPM. TPMs are 'locks' that copyright owners use to prevent unauthorised copying of copyright materials. The TPMs may achieve this end by controlling access to the works through passwords and encryption, or preventing copying via copy controls. Prior to these amendments, it was an offence to deal in TPMs but not to use them. This amendment will affect individuals who may have previously used circumvention software and may affect some research and educational activities.
There are some narrow exceptions. Under some circumstances it will be permitted to circumvent access controls in order to exercise rights under the Part VB licence for educational purposes. There are also some limited rights for Libraries and Archives, encryption research and some other limited uses. The Copyright Office can assist with enquiries.
Educational Use
Broadcasts made available online as podcasts. The Part VA statutory licence (Screenrights) has been broadened to cater for free-to-air podcasts and webcasts. These can now be copied for educational use as long as they were originally 'born' as free broadcasts. For more information about the educational use of television and radio programs see the Audiovisual Guidelines.
A new 'certain special purposes' exception will allow libraries and educational institutions to reproduce some works as long as the copying conforms to specific purposes. The purposes of the copying include for educational instruction, for libraries and archives, or for assisting a person with a disability. There is a further condition for this copying. The reproduction must satisfy the so-called 3-step test (originally specified in the Berne Convention and used in many international documents including the TRIPS agreement). To comply with this test the copying must be limited to 'certain special cases', must not conflict with 'normal exploitation' of the work, and must not 'unreasonably prejudice' the interests of the creator. The educational institution must be able to convince a court that the copying meets these conditions.
The government's decision to incorporate this test in the legislation is a very unusual application of the 3-step test. This exception will give rise to some uncertainty in practice. Further, this exception cannot be relied upon in place of the Part VA or VB statutory licence. Even so, it is possible that the s 200AB exception will offer opportunities and options in specific situations.
Films and sound recordings in class. Prior to these amendments, s 28 permitted films and sound recordings to be played in lectures and tutorials. It will now also be permitted to play these materials using distributed technology (e.g. playing a DVD from the library and communicating it to a classroom). This practice does not seem common in the University environment and it still will not cover inclusion of copyright works in iLectures.
Caching. The amendments now appear to allow caching for the purposes of efficiency and speed of download. This clarifies an existing concern that caching for system efficiency was a breach of copyright.
Linking. The Act now indicates clearly that merely clicking on a link does not constitute an act of communication.
Electronic anthologies. The Act now permits copying and communicating up to 15 pages from an electronic anthology. This brings electronic anthologies into line with print anthologies. (There are administrative requirements when copying and communicating electronic works. See the Electronic Use Guidelines for further information).
The Library
Libraries can rely upon the s 200AB 'certain special purposes' exception outlined above under Educational Use.
'Key cultural institutions' will be permitted to make up to 3 preservation copies of certain materials that are of historical or cultural significance to Australia. It is likely that the University can now apply to be a 'key cultural institution' and should be able to rely upon this provision. (The regulations governing this have not yet been released.) The exception covers many formats including manuscripts, original artistic works, published works, some films and sound recordings. However, the benefit is still subject to a test of commercial availability, i.e. if the work is obtainable in a reasonable period of time at a normal commercial price then it is excluded from this preservation exception.
Preservation copying. There is a curious anomaly in s 51 that states that a replacement copy cannot be made until it is lost stolen or damaged. This has not been fully addressed but some improvement has been made. Libraries are now allowed to make a replacement copy even if another edition is available for purchase. The Library must make a declaration regarding the need for copying this particular edition.
Of Further Significance for the University
Safe Harbour. Most universities do not fall under the 'safe harbour' regime that affords Internet Service Providers some protection against liability for authorisation of infringement by users simply by hosting web sites that may contain infringing material. This situation has not altered and universities do not benefit from this protection.