By Alec Duncan

The copyright regime (a recap)

As mentioned in my previous blog post, copyright is the right of the creator to benefit from their creation. It does so by preventing people other than the creator, or those authorised by him or her, from doing certain things with the work. This includes (but is not limited to) copying, distributing, or adapting the work.[1] This creates a tension between those who seek to preserve their rightful interest in the work, and those who wish to encourage creativity and innovation by allowing as much access to the work as possible.

This tension becomes more pronounced (and perhaps more important) when we consider the issue of galleries, libraries, archives and museums (given the acronym GLAM). These institutions provide access to the literary and cultural heritage that is invaluable in our quest for knowledge. However, the few legal copyright exceptions that apply to GLAM institutions are extremely restrictive and ill-suited to a digital age where entire collections are able to be digitised for mass consumption via the internet.

Implications for GLAM institutions

The ss 51–56C exceptions might be called the ‘archiving’ exceptions and may be further split into exceptions that allow copying for lending and copying for preservation. These exceptions apply mainly to libraries and archives. Practically and legally, museums and galleries can only make use of the preservation exceptions and not the lending exceptions, because the Act specifies that the former exception is applicable only to libraries.[2]

The exceptions also apply narrowly—the Act names which bodies are considered archives, and which are considered libraries;[3] beyond this list, no other bodies can utilise the exceptions contained within the Act, unless they are prescribed by regulation. This means that a person cannot set up a ‘backyard’ library and claim that the ss 51-56C apply to them. The exceptions apply to: [4]

1) The National Library;

2) The Parliamentary Library;

3) Law libraries maintained by the New Zealand Law Society;

4) Libraries maintained (on a not-for-profit basis) by:

a) Educational establishments;

b) Government departments;

c) Crown Entities;

d) Local councils; and

5) Any other body prescribed by regulation.

What constitutes an archive is defined in a similarly narrow manner, applying almost entirely to named bodies such as Archives New Zealand, the National Library, the archives maintained by RNZ, TVNZ and the NZ Film Archive.[5] At first glance, this appears to exclude museums and galleries. Moreover, museums and galleries are mentioned nowhere else in the Act. However, subs (a)(vi) under the ‘archive’ definition in s 50 defines an archive as any “collection of documents” that are “of historical significance or public interest” and that are held by a body that does not derive profit from them.[6]

Document’ is defined broadly by the Official Information Act 1982 and includes (though is not necessarily limited to) photos, films, tapes, books, maps, plans, drawings, writing, information stored on computer, tape or other device.[7] This means museums and galleries may fall within the Copyright Act as ‘archives’.

The ‘lending’ exceptions

The lending exceptions mainly deal with the ability of libraries to provide their users (as well as other libraries) with copies of works that they would otherwise be unable to provide. Let’s examine these exceptions.

1) Librarians are allowed to copy a reasonable portion of published works to provide (including a copy in digital form) to a person requesting it from their library, provided that: [8]

a) Only one copy is given to the requester (the requester cannot receive multiple copies to pass on to other people);

b) The copy will be used for private study;

c) The requester is given a notice stating the terms of use under the Copyright Act;

d) Any digital copies made during the copying process are destroyed as soon as is practicable (i.e. as soon as possible); and

e) Any fee charged for the copying is enough only to recoup the copying costs

Importantly though, s 51 excludes the copying of articles in periodicals, whose copying is provided for separately in s 52.

2) Librarians may copy whole articles in periodicals; the conditions are mostly the same as for (1), but additionally: [9]

a) The librarian may only copy one article from each periodical unless there are multiple articles which relate to the same subject;

3) Both libraries and archives may supply copies of unpublished works (such as diaries) to users. The conditions are also very similar to (1), but: [10]

a) A copy may not be made if the creator prohibited the copying of the work and the librarian or archivist knew about that prohibition at the time of copying.

Practically, this means that libraries and archives should take due care to ensure that they prominently display the permissions on each work (if these are known) – though this is of little use when the work is an orphan work.

The rules for providing digital copies of works are very strict and, practically, require that the library or archive has some form of secure computer network (whether by intranet or internet) to ensure that the requirements under the Act are met:

4) Librarians and archivists may provide lawfully obtained digital copies of works to users, provided that: [11]

a) The requester is given a notice stating the terms of use under the Copyright Act;

b) The work is provided to the user in an unalterable form (e.g. a secured PDF);

c) The number of users provided with a copy does not exceed either:

i) The number of digital copies purchased; or

ii) The number of copies which the library or archive is licensed to provide; and

d) The copies are provided only to authenticated users (those who can, by identity verification (e.g. a logon), verify that they have a right to access the copy)

Libraries (though only libraries; not museums or archives) may provide copies for other libraries’ collections and for their users.

5) Librarians may copy a reasonable portion of any work in a published edition, including whole periodical articles to provide, (including a copy in digital form) to a person requesting it from another library, provided that: [12]

a) The requester uses the copy only for the purposes of private study; and

b) Any digital copies made during the copying process are destroyed as soon as is practicable

Additionally, libraries may copy works for the purposes of providing another library with a copy for its own collection.

6) Librarians are allowed to copy a reasonable portion of published works (including a copy in digital form but excluding periodical articles) for another library’s collection, provided that: [13]

a) The requesting library has been unable to obtain the work at an ordinary commercial price within a six month period; and

b) Any digital copies made during the copying process are destroyed as soon as is practicable

7) The library receiving the copy must:

a) Keep a record so as to be able to sufficiently identify the work;

b) Allow the copyright holder to inspect the work on request; and

c) Pay an equitable (i.e. fair) amount of remuneration to the owner if requested

The ‘preservation’ exceptions

1) Libraries and archives may make non-digital copies of works: [14]

a) If the work must be preserved or replaced—

i) By making the copy publically accessible in place of, or in addition to, the original; or

b) To replace another library or archive’s work if—

i) That work has been lost, destroyed, or damaged; and

c) In either case, it is not reasonably practicable to purchase another copy of the item (i.e. another item cannot be purchased at an ordinary commercial price or without undue delay)

2) Libraries and archives may make digital copies of works: [15]

a) Where the original is at risk of loss, damage or destruction; and

b) It is not reasonably practicable to purchase a new copy of the item

c) The digital copy must replace any original; and

d) The original copy must be made inaccessible to the public except where—

i) A member of the public seeks to conduct research which will benefit from access to the original

3) The same applies where a work has been lost, damaged or destroyed [16]

Solving the issues

In the digital age, it is highly problematic that the capacities of such institutions to make available such valuable cultural and historical knowledge are limited by the interests of copyright holders. In cases such as this, copyright prevents access by a wide section of the public to a wide variety of works that have public interest value. Arguably, this is less true for libraries because the books available for loan retain significant commercial value for the creator. However, the issue is particularly notable for archives, because they tend to hold unique items that have been deposited there because there is a public interest value in the item and not because it is commercially valuable to the creator. Nevertheless, the exceptions in the Act apply equally to both, regardless of this important difference.

The result is that, as with teaching resources, the Copyright Act is protecting works that have very little commercial value—which runs counter to the Act’s purpose. It is highly unlikely that the writer of a First World War diary intended to sell it or that a person who took a photograph of a long-ago event intended the same. If a person never intended to profit from his or her creation, there is little reason to protect it because there was no commercial incentive to create it.

Of course, there will likely be items that possess undiscovered commercial value—it might be that an event to which a diary is devoted to describing becomes famous enough that there is commercial value in marketing the story. To hold that such a work would lose copyright protection simply because it was placed in an archive would be to deny a legitimate commercial interest in the work (and potentially, public awareness of the information contained therein). Therefore, the difficulty is in striking a balance between a case where a copyrighted item has no value and a case where it has unrealised value.

The present regime also leaves much to be desired regarding the ability of GLAM institutions to protect their own digital copies of items. As Susan Corbett notes in an article regarding a study she undertook on copyright and GLAM, such establishments felt that one digital copy was not enough.[17] The backup could be lost, corrupted or become unreadable due to format shifts in the technology. This, combined with the fact that GLAM establishments (which are often publically funded) are risk-averse regarding copyright, means that it becomes harder for researchers to gain meaningful access to items. Moreover, if the purpose of the ‘preservation’ exceptions is to preserve the works for future access, it seems strange that the law is so myopic as to ignore the risk that, one day, the works will be inaccessible for the reasons mentioned above.

Reforming the law

Like the previous blog post on copyright and education, this blog post will again examine the Australian Law Reform Commission (ALRC)’s rejected report into reforming copyright. During the Commission’s hearings, GLAM establishments sought a result that would allow them to undertake greater levels of digitisation and allow them to make public digital copies of unpublished works.[18]

The ALRC recommended that the Act be amended so that digitisation and display by GLAM establishments be considered under the fair use exception. The purpose for the digitisation and display would be a factor in considering whether the infringement amounted to a fair use.[19] Moreover, a move to fair use, the ALRC noted, would provide a flexible, common sense, and non-legalistic test as to whether a particular use for a work was fair or not.[20] The ALRC was of the view that non-commercial mass digitisation carried out to facilitate research and study (or assist people with disabilities to access the works) would be considered fair use.

Also noted was the issue described above regarding obsolete formats, as well as the issue ‘born digital’ works. The ALRC recommended that there be a general exception to allow GLAM establishments to copy copyrighted works for the purpose of preservation, without limiting the number of copies that may be made.[21]

Notes

[1] Copyright Act 1994, s 16(1).

[2] Sections 51–54.

[3] Section 50.

[4] Ibid.

[5] Ibid.

[6] Section 50(1)(a)(vi) “archive”.

[7] Official Information Act 1982, s 2(1) “document”.

[8] Copyright Act, s 51.

[9] Section 52.

[10] Section 56.

[11] Section 56A.

[12] Section 53.

[13] Section 54.

[14] Section 55(1).

[15] Section 55(3).

[16] Section 55(4).

[17] Susan Corbett ‘The Digital Museum and Copyright Law: Can There be Reconciliation?’ (2012) 6 NZIPJ 882.

[18] Copyright and the Digital Economy [2013] ALRC 122 at 12.7.

[19] At 12.9.

[20] At 12.22.

[21] At 12.62 and Recommendation 12-2.

Alec Duncan is an intern at Creative Commons Aotearoa New Zealand, and a law student at Victoria University Wellington Te Whare Wananga o te Upoko o te Ika a Maui.

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