Welcome changes to the Copyright Act

ADA copyright principles icons
Icons borrowed from ADA

While copyright reform moves at a glacial pace, it is pleasing to report that in 2017 the Australian Government introduced important changes to copyright law in the form of the Copyright Amendment (Disability Access and Other Measures) Act 2017 which came into force on Friday 22 December. The changes it brings about are the most significant to Australian copyright law in over a decade, according to the Australian Digital Alliance (ADA). The ADA report states that the Amendment:

‘…ends the antiquated concept of perpetual copyright for unpublished works, instead applying the same basic terms to all materials, regardless of whether they are published or not. It also applies flat terms to orphan works whose authors cannot be identified 70 years from when they were created or made public (this fact sheet on the changes from the Australian Libraries Copyright Committee explains what all this means).

When these laws come into effect on 1 January 2019 they will apply to all works currently protected by copyright in Australia. This means that literally millions of old unpublished works from our national collections will enter the public domain all at once, including recipes used by Captain Cook, letters written by Jane Austen and endless ephemera. Every year after that, unpublished works whose authors died 70 years earlier will also fall into the public domain, and orphan works created/made public 70 years earlier.’

This is welcome news which we will report on further and we look forward to seeing the benefits in 2019 and working with ADA and others on various issues around copyright reform and improving public access to information.

Currently in Australia, there are major impediments to libraries and other information services such as APO making copies of documents available in online collections due to the restrictions of Australian copyright law. As a result we are now facing a digital black hole of content from the mid 1990s onwards as content that was online and intended for public use is moved or taken down and no copy of it has been kept by a collecting body due to restrictions on copyright.

The cost of copyright for public knowledge

The 2016 Productivity Commission Inquiry Report, Intellectual Property Arrangements, highlighted the case made by APO on the value of  non-commercial works produced by government departments and agencies, NGOs, and research centres that are protected by copyright.

Organisation publishing such as reports produced as academic research centres, think tanks and government and non-government organisations, makes a considerable contribution to public policy, education, commercial innovation and social development. Much of this work (also known as grey literature) is produced to inform public policy or influence decision making, to share the outcomes of publicly funded research of interest to the community or to represent the views of a stakeholder group.

As the Productivity Commission points out, the provision of copyright protection for commercial benefit is irrelevant to the creation of much of this work, yet the exclusive rights embodied in copyright represent a major impediment to libraries, and other collecting services making this work available for public or educational use. This can reduce the benefits of publicly funded research and information and introduce costs to the community associated with the application of copyright laws for non-commercial works.

The need for fair use

Copyright law is intended for the ‘protection of commercial activities of right holders designed to exploit material for profit.’ At present in Australia, copyright exceptions can regulate far more than those activities that could pose a commercial risk to right holders.

In particular, it imposes undue regulation on content that was intended not for commercial gain but as a public good and for public benefit. Copyright reform should recognise the diverse motivations and formats for producing content that falls under the Copyright Act and be flexible enough to allow this diversity to flourish and be preserved where appropriate.

It is now estimated that 30 per cent of online content is being lost every few years. This has enormous repercussions on our capacity as a nation to engage in evidence-based policy as the evidence base is hard to find, evaluate, and disappears over time. Given that a great deal of this content was valuable public policy related material previously intended for public use this is a serious national issue that needs to be addressed.

APO’s collection of policy related research and resources extends to over 30,000 items and covers  policy reports, discussion papers, briefings, case studies, literature reviews, fact sheets, evaluations, submissions, working papers, conference papers, data, technical reports and specifications, policies, strategic plans, infographics and more. Where possible APO holds full text or datasets to ensure we can provide long term access and provide metrics, full text search and other value added services for producing organisations and the research and policy community.

Changes to the Copyright Act in Australia and the adoption of a principles based fair use approach would assist research libraries and collections such as APO, to provide long term access and management of non commercial digital documents in the public interest for research, study and evidence-informed policy.

We look forward to more changes and to working with others across the sector in the Australian Digital Alliance.