The Copyright Act will soon undergo changes. After two years’ of consultation with stakeholders, in August 2020, the Federal government announced that it will release an exposure draft of the proposed amendments to the Copyright Act later this year. Key changes include a new scheme for “orphan works”, a new fair dealing exception for quotations and new exceptions for libraries and educational institutions. These proposals arise following recognition by the government that the copyright law hasn’t adapted to our increasingly digital environment. These proposals intend to make it easier for people and certain institutions to use and access online materials. So what do these changes to the Copyright Act mean and how can they affect how you use copyright material?
The proposed reforms seek to introduce a limited liability scheme for the use of orphan works. An orphan work is a work which has no identifiable author, or the author of which cannot be found.
Under the scheme, use of copyright material will be allowed as long as two conditions are satisfied. First, the user undertook a “reasonably diligent search” to identify or find the author. Second, “as far as reasonably possible, the work has been clearly attributed to the author”.
For example, say that you find an image on Google that you’d like to use for your business’s website. A person with the username “photogod” had uploaded the image onto Imgur.com. You try to contact “photogod” to ask for permission but you don’t get any response from them. If you then use that image and credit “photogod”, you won’t be infringing copyright. If you can’t even find the username of the uploader after searching for a while, you still won’t be infringing copyright as you took a “reasonable diligent search” to find the author.
Should the copyright owner later come forward, the user will not be liable for past use of the orphan work. Additionally, the user can continue to use the orphan work on terms as agreed with the copyright owner. If they cannot agree on the terms, the copyright owner can seek legal orders to stop future use of the orphan work.
New exception for use of quotations
The proposed changes will also allow educational, government and other entities engaged in public interest work or research to quote from copyright materials without infringing copyright. This exception is subject to the requirement that the entity does not use the quotation in a commercial context. Furthermore, the use of the quote must accord with standard fair practices (such as giving credit to authors).
This means that if the entity uses the quote as a slogan for their business, this exception probably won’t apply. However, if a person uses a quotation in a research paper with proper citations to the author, then this exception is likely to apply.
Update to the library and archives exception
The proposed changes also seek to update provisions regarding the copyright exception for libraries and archives to be technologically neutral. Under the existing law, libraries are allowed to use copyright material without consent as long as they adhere to certain conditions. These conditions include copying limits, such as allowing patrons to copy only one chapter of a book at the library.
The proposals will allow these copyright exceptions for libraries to also apply to digital materials. The institution however should take reasonable steps to prevent copyright infringement by users. For example, online portals for accessing ebooks may only allow users to download a maximum of one chapter onto their computer. This proposal will clarify the law and make it easer for libraries to allow online access to its materials.
Update to the education exception
The proposals also seek to clarify the exception regarding the use of copyright material in education settings to include settings outside school, TAFE or university premises. This is intended to allow the use of copyright educational materials during online classes.
This will allow educational institutions to better support remote and online learning.
Streamlining government statutory licensing
The proposals also seek to extend the licensing arrangements that governments have with collective societies. Collecting societies are organisations that collect royalties from users of copyright material on behalf of copyright owners, such as musicians, artists and authors. This is usually achieved by providing a license to users to use the material in exchange for payment of money.
Under the existing law, the government statutory licensing scheme only allows copying of materials licenced from collecting societies. This proposal seeks to also allow the government to communicate and display the copyright material.
Additionally, the proposals seek to provide a new exception which permits the government to use correspondence and material sent to the government, as long as it’s for non-commercial purposes.
These changes account for the increasing use of online communication and digital material, such as online factsheets, by government agencies. Streamlining these licensing measures reduces the administrative burden on government agencies to adhere to copyright law and license conditions.
Issues with proposed changes
These proposed changes to the Copyright Act will certainly make access and use of digital material easier. However, the concern is that these changes weaken the control that copyright owners have over their work. By extension, these changes may make it more difficult for copyright owners to receive compensation for use of their work.
For example, the Arts Law Centre has issued a statement in response to these proposed reforms, stating “Arts Law stands against any move to minimise the control creators have over their work….especially during a time when artists are suffering greatly due to the COVID-19 pandemic”. Arts Law further asserts that “copyright licensing remains one of the few ways in which creators can financially leverage their work” and “any changes that allow for greater access to creative works without compensation for artists will only be of further detriment to the sector”.
As yet, the exact practical effects of these reforms on the creative industries are unknown. However, the proposed introduction of a number of new exceptions to copyright infringement may certainly mean that copyright owners will no longer be compensated for certain uses of their material. The proposed reforms however have strong public interest benefits. Furthermore, such reforms are much awaited updates to copyright law which account for the increasing digitisation of our world. Accordingly, it is uncertain how receptive the government will be to these concerns.
The digital world has increasingly become the main source and platform for resources, information and communication. However, the Copyright Act has remained outdated, leading to uncertainties as to how its provisions apply to technological advances. These proposed changes to the Copyright Act seek to address these uncertainties by updating the law to make it easier for people to access and use materials online. After the government publishes the exposure draft of the bill later this year, it will open a period of consultation to address issues as noted above. Watch this space to find out exactly how these changes to the Copyright Act take shape.