The Federal Government released an Exposure Draft of the Copyright Amendment (Access Reform) Bill at the end of 2021. It seeks to simplify and update exceptions to copyright infringement for cultural and public interest sectors, such as libraries, archives, education and government.

The reforms have been prompted by COVID-19 and an increasingly digital landscape.

They represent the culmination of extensive stakeholder consultation and have been the subject of numerous reviews over the last decade.

General objectives of the reforms

The objective of the reforms, which is set out in the Discussion Paper released alongside the Bill, is to ensure that sectors that serve public interests can provide their services 'effectively and efficiently in an increasingly digital environment'. At the same time, they recognise the importance of copyright law in incentivising creators and their industries to produce Australian content and receive payment for their creativity.

The reforms include changes to sections of the Copyright Act that deal with the reproduction and communication of works for educational and research purposes. They also include changes which are said to be designed to give confidence to educational and archival institutions in relation to making works available online.

The Bill has been broken into thematic Schedules, which are summarised in the Discussion Paper. A brief outline of the proposed reforms is below.

Schedule 1: limitation on remedies for use of orphan works

The Bill introduces a new mechanism to mitigate the risk of using copyright materials when the copyright owner or owners cannot be found (known as Orphan Works). The new provisions seek to bar a court from granting relief to a copyright owner in respect of an infringement of their copyright where the alleged infringer:

• made a 'reasonably diligent' search for the copyright owner within a reasonable time period before using the work;
• the outcome of that search was that the owner's identity was unknown, or the owner's identity was known but they are uncontactable; and
• if it is reasonably practicable, the author has been attributed.

Should the owner emerge after the Orphan Work has been used, the scheme will allow the owner to seek reasonable payment for ongoing use of the material (though no relief can be sought for past use). If the owner and the user cannot reach an agreement on the terms, they may apply to the Copyright Tribunal to fix reasonable terms.

The new scheme is intended to cover commercial use, however the Discussion Paper notes that where use of an Orphan Work is done in a commercial context, what is 'reasonably diligent' may be more laborious than in a non-commercial context.

The proposed section sets out the matters that may be considered in determining whether a reasonably diligent search for the owner was conducted.

However, the commencement of the new scheme will be delayed for 12 months from the commencement of the new Act to allow for the development of industry guidelines or an industry code of practice which may provide guidance on conducting diligent searches.

Schedule 2: new fair dealing exception for non-commercial quotation

The Bill creates a new fair dealing exception for quotations to be used by 'certain public bodies, organisations and individuals for non-commercial purposes'. The Bill does not included a definition for 'quotation', and the Discussion Paper states that the word should be given its ordinary meaning.
The new exception will apply to all types of copyright material and will be technology neutral. The quotation may be of whole or part of copyright material, as long as the quotation is made by:

• a library or archives,
• an educational institution,
• the Commonwealth or a State or Territory,
• a person acting under the authority of any of the above institutions, or
• a person or organisation for the purpose of research,

The quotation must also be made for a non-commercial purpose (or for a purpose where the quote is immaterial to the commercial value of the product or service in which it is used). The copyright material must also have already lawfully been made public. Some of the purposes for which a quotation can be made are said to include, but not be limited to, explanation, illustration, authority or homage.

Whether the dealing is fair will be determined with regard to the following four standard fairness factors:

• the purpose and character of the dealing,
• the nature of the copyright material,
• the effect of the dealing upon the potential market for or value of the material, and
• if only part of the material is dealt with – the amount and substantiality of the part dealt with, taken in relation to the whole.

The current wording of the Bill excludes unpublished material being dealt with under the exception. However, the Discussion Paper points out that this approach may limit the use of a large amount of non-commercial material held in national institutions, such as private correspondence, which may make the exception of limited use to researchers.

The Discussion Paper asks for stakeholders' views on this issue in particular.

Schedule 3: update and clarify library and archives exceptions

Stakeholder consultation has revealed that the current library and archives exceptions to copyright infringement in the Act make it difficult for institutions to curate, display and allow access to collections remotely in a digital environment.

The Bill seeks to update the library and archives exceptions to allow for materials to be accessed via the internet at a location that is not the institution's premises, provided that:

• the institution takes reasonable steps to ensure that a person accessing the material does so in a way that does not infringe copyright, and
• material acquired in hardcopy form is only digitised and made available online if an electronic copy cannot be obtained within a reasonable time and at an ordinary commercial price (other than preservation and research copies). Preservation and research copies may be made available to be accessed online remotely.

Current provisions also allow libraries and archives to supply a copy of certain published works if requested for the purpose of research or study. The Bill extends those provisions to all types of copyright material, including audio-visual and unpublished material, and for the additional purpose of private and domestic use.

The Bill also removes many requirements in relation to record keeping and managing copies after creation. The Discussion Paper refers to these provisions as 'unnecessary and excessively prescriptive'.

Schedule 4: update and restore education exceptions

Online and remote learning has been occurring in an uncertain environment for the last two years. The Bill seeks to clarify issues around the use of copyright materials in online or recorded lessons. It is intended to streamline the existing exceptions in the Act so that they are 'material and technology neutral'.

The Bill repeals section 28 of the Act. This permits the performance of certain copyright materials, and communication of those materials to facilitate the performance, by a teacher or student in the classroom in the course of educational instruction (provided the audience is limited to the people taking part in the instruction) and replaces it with s113MA. The new s113MA is designed to permit what can currently take place in a physical classroom in an online or remote learning context by allowing, among other things:

• the performance of copyright material, or an act that causes copyright material to be seen or heard, in the course of giving or receiving educational instruction by a body administering an educational institution or a person taking part in the giving or receiving of educational instruction; and
• the copying, communication or making of an audio or audio-visual recording to facilitate such activity.

The new provision seeks to provide certainty to educational institutions in relation to the use of copyright materials in lessons being held over streaming services such as Microsoft Teams or Zoom, as well as the ability to record lessons for students to watch at home. The Discussion Paper notes that the Bill is intended to 'support the adoption of digital technologies… that are necessary for students learning in both the classroom and the home in the long term'.

Schedule 5: streamline the government statutory licensing scheme

The Bill seeks to update and streamline the current government statutory licensing scheme, and to clarify the interaction of that scheme with other licences and exceptions to copyright infringement in the Act.

Of note, the Bill seeks to extend the collective licensing arrangements to include the communication of certain copyright materials (not just the reproduction of them). It also seeks to remove the requirements in sections 183A, 183B and 183C around conducting sampling surveys to determine equitable remuneration payable under the government statutory licence, payment arrangements and related inspection powers. This will leave the terms of agreements, including any provision for surveys or inspection, to be agreed by the parties. If agreement cannot be reached, terms will be determined by the Copyright Tribunal.

The Bill also introduces a new exception to permit the governments to use correspondence and other copyright material provided to them for the services of the government if:

• the use is reasonable having regard to the purpose for which the material was provided, and
• the material is not used to obtain commercial advantage or profit.

Schedules 6 to 10

Finally, several technical amendments to the Act that have been proposed in addition to the substantive changes outlined above. These amendments are contained in Schedules 6 to 10 of the Bill. A short summary of these can be found in the Discussion Paper.

Impacts of the Bill and next steps

The changes proposed in the Bill will have an impact on the day to day operations of educational institutions, libraries, archives, researchers, academics and governments. They have been welcomed by those groups after almost a decade of reviews on the very issues that the changes seek to address.

Submissions in relation to the Discussion Paper are due by 5pm on 11 February 2022. The Government is also conducting a review of the technological protection measure (TPM) exceptions in section 40 of the Copyright Regulations 2017 and is inviting submissions on those exceptions at the same time.

Please contact us if you would like assistance with preparing a submission in relation to the Bill or TPM exception review, or if you would like to discuss this update more broadly.