Re Publisher & Library Relations


Subject: Re Publisher & Library Relations
From: David Emery (demery@copyright.com.au)
Date: ti 13 heinä  1999 - 04:43:04 EEST


To Ann Okerson, Barbara Schleihagen, Annabelle Herd, and Ecup-list
Readers,

The STM document referred to in the e-mail below is of great
interest to the current debate in Australia over the governments
proposed "Copyright Amendment (Digital Agenda) Bill".

Subscribers to Ecup will be aware of recent comments regarding the
debate over the Bill and references to the role of library copying in a
digital environment and the position held by collecting societies such
as the Copyright Agency http://www.copyright.com.au/

It is fair to say that the Australian debate over fair dealing and
library exceptions proposed in the Bill has deteriorated to the point
that useful discussions about the naturally complimentary roles of
publishers/authors and libraries has been lost in rhetoric and the
scramble to influence the final form of the legislation.

Both creators and users of copyright works have a lot at stake, and
regardless of the benefits of the preferred positions of either side of
the debate, neither are going to achieve 100% of what they want.
Discussion between publishers and libraries of the kind referred to
below have to occur if we are to exploit our joint interests and common
goals in a practical, legal and political sense.

If this kind of initiative is ignored, then all parties run the risk of
being marginalised at a public policy level as a result of fruitless
bickering between groups who are seen at that level to be part of the
same milieu. It is a "house divided" scenario.

I urge all those with an interest in this debate to reconsider their
views and work toward our common interests.

I attach the Copyright Agencies most recent thoughts on the Digital
Agenda.

------------------------------------------------------------------------
Libraries, CAL and the Digital Agenda

On 26 February 1999, the Australian Government released the draft Copyright
Amendment (Digital Agenda) Bill 1999. The Bill purports to embody the
Government’s stated intention (April 1998) that it would "extend the existing
exceptions" to the rights of copyright owners for libraries, archives and
educational institutions so that they would apply in the new on-line
environment.

Debate between copyright owner representatives and consumer representatives
has been robust, both in the news media and elsewhere.
CAL is concerned our position in debate about the Bill has been
misrepresented by copyright user groups. We therefore wish to re-state the
core components of our arguments in support of authors, publishers and
creators who want to earn income online.

The basis of CAL’s position

In seeking amendments to the draft Digital Agenda Bill, CAL only seeks to
ensure that legitimate commercial markets for digital copyright works are
allowed to develop, and that authors and publishers can be paid for on-line
delivery of their work.

In responding to CAL’s views about specific aspects of the Bill,
organisations and individuals therefore need to be aware that:

- CAL is acutely aware that community access to copyright works is both a
public good and key to sustaining and developing markets for intellectual
property. As a representative of authors and publishers, CAL therefore
supports the role of libraries in society and the access to published works
they provide.

- CAL supports the Government’s initiatives in the draft Digital Agenda Bill,
with the exception of a few provisions relating to the copying and
transmission of original digital works.

- The draft Bill, not CAL, makes “unsubstantiated guesses about how the
digital information market is to operate”. The Bill makes such assumptions
when it deems certain kinds of copying to be fair in a future digital market
that remains undefined.

- CAL is a not-for-profit organisation.

- CAL is not beholden to the interests of multi-national publishers, nor do
we seek to enrich them unfairly at the expense of students or researchers who
use libraries.

- CAL distributes copying licence fees to copyright owners whose works have
been copied. Therefore, because information consumers decide which works they
will copy, it is they who determine which rightsholders receive payment from
CAL.

Responses to some specific claims by copyright users

In the course of recent debate about the draft Copyright Amendment (Digital
Agenda) Bill 1999, various misunderstandings of CAL’s position have been
expressed by copyright user groups. A selection of the more typical
misunderstandings was published in the Australian Libraries Copyright
Committee’s Additional comments on the ALCC's response to the Copyright
Amendment (Digital Agenda) Bill 1999 Exposure Draft.
While not wishing to single out the ALCC as an opponent in this debate, their
summary of CAL’s position represents a useful compendium of those user-group
perspectives that require specific responses.

- As a result of “acceding to the demands of copyright owner interests”,
copyright may become irrelevant in the digital environment due to widespread
infringement by a public that does not perceive copyright law to be fair or
reasonable.

CAL contends that widespread, systematic, high-volume copying being
undertaken as fair dealing has already devalued copyright. Our suggestions
for changes to the draft Bill are predicated on reviving respect for creative
talent, effort and investment in original works in the digital world. We wish
to help ensure Australia is a market leader in developing and benefiting from
the information economy.

- There is simply no evidence to suggest that library copying will increase
as a result of the changes implemented by the Digital Agenda Bill.
This is only true to the extent that the Bill has not been passed nor the
market tested. CAL contends that as digital copying becomes easier and more
pervasive, the Bill will allow libraries to unfairly compete with
e-publishers and that unlicensed (and unremunerated) copying will increase as
a result. Again, we suggest that the digital market be allowed to grow,
rather than prematurely legislate its shape based on the market model that
applies in the print technology environment.

- There is already evidence that demand [for library copying] may fall as new
and efficient commercial services that are not subject to the limitations and
restrictions on library copying become more readily available.

If the draft Bill was passed as legislation without change, these are the
e-publishing services with which the libraries would unfairly compete.
Libraries have already stated that the market they supply is largely
scientific and technical journal material. These are the same materials
libraries will be able to copy and transmit to anyone requesting them for
“research and study”.

Given a choice of buying an article from a commercial service or more cheaply
from a library (which is not obliged to charge a copyright fee), it is not
difficult to imagine which service consumers will choose.

- The view, falsely ascribed to CAL, that any impingement on a potential
market, no matter how private the use, or how small the amount of the work
used, is unreasonably prejudicing a legitimate interest.

A copy of an insubstantial portion of a work has never been controlled by the
copyright owner, and CAL has never advocated a change in this interpretation.

Libraries portray the digital market as exploitative, while positioning
themselves to take advantage of its benefits by appropriating original works.
Again, the reality of the change from analogue to digital is overlooked.
Claims that libraries will “… utilise new technologies in carrying out the
same activities that they have always carried out …” ignore the fact that,
unlike a photocopy, a digital copy of a work transmitted to an individual is
the primary consumer product in the e-publishing environment.

- CAL wants fewer rights for libraries so it can extend its licensing reach.

Comments such as these are unnecessary and deflect attention from the heart
of the debate. CAL is a not-for-profit organisation created to protect the
rights of authors, publishers and journalists and, as such, we have a right
to comment on laws or proposed amendments that affect our members.

Copyright licensing has proven to be a successful model for copying by
educational institutions and government agencies, and there is no reason why
it cannot apply just as effectively to library copying. Advocates from the
Australian Digital Alliance are suggesting that the interests of consumers of
creative works are so extensive that they should no longer have to pay the
producer. In what other circumstances are consumer rights so broad that
payment for the product is no longer the norm?

- CAL’s objections to the Digital Agenda Bill have nothing to do with the
interests of consumers or the future of the information economy.
CAL’s concerns are driven by the future of the information economy and the
need to ensure that Australian creators contribute to that economy. We
advocate protection of the right for an Australian creator to exploit his or
her own work if they so desire. Australia cannot build an information economy
at the expense of creators including authors and publishers.

What CAL wants

CAL would like to see a legal framework that allows authors and publishers to
negotiate individual agreements for the use of their work and allows the
market to develop and to set fair and reasonable prices for the use of
original works. If that solution were not perceived to provide a balance of
public interests, then the statutory introduction of a licence that would
guarantee library access to works would be a suitable alternative.

Whichever solution is preferred, CAL’s approach to this debate is motivated
by the desire to ensure authors and publishers have the opportunity to share
in the digital markets of the future and encourage creators to produce
high-quality original works for the community.
Specifically, CAL is asking that the proposed legislation be tightened in
terms of:

- Its definition of what constitutes a library (which, in this context,
should only constitute a public, not-for-profit enterprise). CAL has long
called for a definition of “library” to be included in the Copyright Act. As
it stands, for-profit companies can claim to make copies under library
provisions and fair dealing. This is a market that should legitimately be
available to authors and publishers.

- Its definition of research and study (which, again, should not be a
commercial exercise).

- Removing the quantitative test for deeming what, in the digital
environment, is a fair amount to copy without incurring copyright licence
fees.

- Prohibiting the use of devices that can circumvent technological barriers
to digital copyright works.

The achievement of these goals does not exclude the role of libraries.
Rather, they are complementary to that role. On behalf of authors and
publishers, in the public interest we invite copyright users from all
quarters to engage in discussion with digital rightsholders about how online
intellectual property can be best managed in future.

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