Intellectual property in the picture

World Intellectual Property Day
 Bronwyn Dowdall

World Intellectual Property Day on 26 April is an opportunity to promote awareness of the intellectual property system – which includes patents, trademarks, and copyright – and its current issues. This year’s theme is Movies: A Global Passion.

Copyright in particular is important to the NFSA and our stakeholders. Copyright law grants exclusive rights to rights holders, so they can control how their work is copied or used. To balance this, copyright law also includes exceptions to these exclusive rights, to ensure socially beneficial access and use of works can occur without the rights holders’ permission.

It is the mission of the NFSA to develop, preserve, maintain, promote and provide access to our national collection. Of the almost two million items in our collection, we control copyright in about five per cent. When dealing with the other 95 per cent we are required to seek permission from the relevant copyright holders. We respect creators and rights holders, however there are many cases when it’s not practical to seek permission from them (for instance, when we need to back up or format shift digital collection material), or simply not possible (such as orphan works).

There are some copyright exceptions enabling cultural institutions to use copyright material in limited ways without having to seek permission from rights holders. However, these exceptions are considered complicated, outdated and inadequate for developing, preserving and accessing collection material.

In 2012, the Australian Law Reform Commission (ALRC) was asked to consider whether exceptions and statutory licences in the Copyright Act 1968 are adequate and appropriate in the digital environment and whether further exceptions should be recommended. The public submissions made to the ALRC as part of the review can be seen here, including the NFSA’s. The Attorney-General, Senator the Hon George Brandis QC, tabled the ALRC’s final report in parliament in February 2014.

Of all the ALRCs recommendations, recommendation number four, The Case for Fair Use, is key and has probably generated the most debate. Time will tell whether the Australian Government will implement what many describe as a flexible, open-ended 'fair use' copyright exception, potentially enabling more free uses of material. The USA, Singapore, Israel and South Korea – each a WIPO member – currently have 'fair use' exceptions.

The alternative recommendation of the ALRC is to expand the existing and familiar “fair dealing” exceptions. Broadly, in Australia, the 'fair dealing' exceptions for specific purposes can be quite restrictive in practice. The same can be said of exceptions available to specified users such as libraries and archives, especially in the digital context.

The NFSA’s submissions commented on how a combination of exceptions could better assist the NFSA to fulfil its statutory functions and improve the access of users of the national audiovisual collection and other material. Particular support was given to having additional specific exceptions for cultural institutions combined with an expanded 'fair dealing' exception or a 'fair use' exception.

The ALRC made a number of other recommendations, including limiting remedies available for copyright infringement where the user has conducted a ‘reasonably diligent search’ for the copyright holder, encouraging greater access to ‘orphan works’. The NFSA’s submission supporting the ALRC’s proposal noted that the NFSA’s Search the Collection facility could play a role serving the needs of users in this situation.

The day after the release of the report, the Attorney-General publicly expressed reservation about the appropriateness of 'fair use' but stated that Australia’s copyright law is in need of reform: 'A strong case has been made that the Copyright Act is unnecessarily restrictive in some of the beneficial uses of copyright material it potentially prohibits […] In any copyright law reform process, we must ensure that the potential economic and social benefits of modernisation do not come at the expense of our creative industries. We must also ensure that such reform is relevant, contemporary and accessible.'

Image: Horia Varlan. Creative Commons BY 2.0