Proctor : April 2017
28 PROCTOR | April 2017 Is pragmatism the answer for copyright reform? Reflecting on experiences from a university library In a time of activist cupcake baking1 and the distraction of monkey selfies,2 not to mention the extensive review and reporting on copyright and related matters undertaken over the past 20 years,3 legislative change for copyright looks to be at risk of raising more than a few eyebrows. Existential questions abound – fair use or fair dealing? Statutory or commercial licences? In the meantime, we muddle along in the daily operation of the legislation we have. Is it possible, when some of these questions are looked at through the lens of pragmatism, that our Copyright Act 1968 does not fall quite so short as expected? Reflecting on experiences from a university library may assist in understanding. University libraries Under our copyright legislation, university libraries are relatively complex entities, having a duality of purpose as both an ‘educational institution’ and ‘library or archive’. 4 This can result in greater flexibility – consider section 200AB,5 for example – but also greater uncertainty in day-to-day copyright decisions. This uncertainty is reflected in the modern development of a university library. It is unnecessary to expound on the disruption of the digital revolution on such institutions – this is now a fact of life. To focus on the positive effects of digital disruption for a moment, modern university libraries have extraordinary potential to deliver enriched learning experiences. Digital preservation of artefacts, 3D modelling of collections and curation of online exhibitions are just some of the ways university libraries are modernising their collections for the benefit of their students and communities. Copyright exceptions The Copyright Act 1968 includes a range of exceptions for educational institutions as well as libraries and archives. A university library is in the unique position of benefitting from both. Section 200AB The most recent of these exceptions, being now around 10 years old, is section 200AB.6 Commonly known as the ‘special case’ exception, 7 this provision takes the international ‘three-step test’ standard delineated in the Berne Convention, and inserts it into our legislation in a relatively raw form.8 While this approach to legislative drafting has caused some confusion, especially in conservatively minded educational institutions, it can also be a very powerful tool, especially in light of its potential for creating access to historically significant orphan works.9 Consider applying this section, as it was quite recently at The University of Queensland, to the digitisation of the diary of a Turkish soldier – The Diary of Refik Bey – to see the impact it can have.10 The Diary of Refik Bey, who had fought at Gallipoli in the First World War, was donated to The University of Queensland Fryer Library in 1965. 11 The diary was written in Ottoman script and, due to this and its size (it is no bigger than two matchboxes), translation was impossible without digitisation.12 In such a case, that is, an unpublished manuscript for which the copyright owner is unable to be identified, there is no copyright exception that can be relied on to make a digital copy. This is where section 200AB becomes relevant.13 Able to be used only in circumstances in which no other copyright exception is available, this provision serves to significantly empower a university library to understand and bring a significant historical artefact to the attention of a wider audience. If this section is to be applied, however, we must take a pragmatic view of its interpretation. What, for example, does the phrase “for the purpose of maintaining or operating the library... to provide services of a kind usually provided by a library...” mean for the modern library? Has this changed over time? Undoubtedly. Can a balance be found between respecting the legitimate interests of a copyright owner and, wherever possible, encouraging discoverability of their materials by new methods of technology? Absolutely. The diary of Refik Bey, courtesy of Fryer Library, The University of Queensland Library. Photo: Kaylene Biggs.