Australian Digital Alliance Forum (part three)

Introducing Flexibility

Professor Anne Fitzgerald

  • Andrew Christie has come up with a model for how to simplify copyright.
  • How to get a pragmatic approach to dealing with copyright?
  • Good ideas on how to create more flexibility from looking at needs of the public sector. GLAM sector has quite a large amount of orphaned work.
  • Obama administration has given 2bn for development of open access educational material.
  • How to enliven use of copyright in the public sector?
  • Understanding copyright as a fundamental aspect of literacy in the digital age. We need hands-on workshops.

Professor Andrew Christie

Melbourne Law School

  • Discusses 1998 CLRC Simplification Report (Part 1): sensible recommendations:
    • Consolidate fair dealing provisions,
    • Expand fair dealing to an open-ended model,
    • Apply fairness provisions across the board.
  • The exception is copyright owners’ IP rights, the rule is free competition.
  • The need for a small exceptions space carved out from copyright owners’ IP rights, but this space is constrained by international agreements (particularly mentions TRIPS).
  • We could have an exceptions space defined by a flexible, TRIPS-consistent 3-step space.
  • Proposes several different models for defining the exception space from copyrights.
  • Government didn’t act on the CLRC for eight years.
  • Also issues around gene patents – little government action, and of course the problem doesn’t go away.
  • Key lesson: don’t just hand down a report and think it will lead to action. You need agitation to get action.

Ishtar Vij


  • Huge amount of potential online.
  • [Missed a bit here. Sadly. Looks quite interesting. Mostly seems to be about creativity online, and potential to use it to make money.]
  • Copyright:
    • should encourage innovation.
  • Key aspects of good copyright:
    • Safe harbours,
    • Exceptions,
      • system-level caching,
      • search,
      • flexible exceptions (eg. Not tech-dependent),


Q: Given the difficulty in using the current 3-step test, how do you see this working in pratice?

A: (Andrew Christie) Basically, what it says is that unless the activity is unreasonable and causing damage to copyright owners, it should be okay. We need to just form a judgement: if something’s not unreasonable: do it!

Q: Under what conditions should people be able to opt-out of caching websites.

A: (Ishtar Vij) Already able to opt-out using robots.txt. Once something’s already gone into the cache, Google responds to take-down requests.

Q: My question is: you do this now, this is Google’s defence mechanisms. But if the law was changed to allow Google to cache, would it still allow opt-outs.

A: In the US law, we already have the right, and we still allow opt-outs. There’s no reason that would be different anywhere else in the world. We’re a global service. It’s something that we do, and we’re happy doing it.

Q: Using the language of the three-step test could lead to problems with a shift towards paying more attention to TRIPS [might not have got this quite right].

A: (Andrew Christie) I agree. Better to go with the CLRC recommendations for Fair Dealing. They key, though, is to get the concept right, not the language: if the dealing’s fair, it should be allowed. [hmm…this is not my impression of how law works!]

Q: It would be interesting to see if there’s more consensus in the user consensus now about how these provisions should be dealt with.

Q: (Anne ) Should we perhaps be “a little bit more bolshie” about getting a broad-based, US-style fair use exceptions.

A: (Helen) There’s much more of a push for this now, and it’s still a live issue.

Educational Online Copying

Delia Browne

Director, National Copyright Unit

  • AU is one of the few countries that has compulsory licensing for educational use. [@piecritic: “We pay for education use unless the website exempts it. What the hell. #adaforum Photocopiers did this to us.”]
  • We want materials excluded that are made freely and publicly available on the Internet – not commercially available, and not password protected. Not talking about getting exceptions for subscription services or password-protected services.
  • AG’s office wants the National Copyright Unit to try to work out an agreement with key stakeholders, eg. Australian Copyright Council, schools, authors’ groups. Some good did come from this: everyone agrees that schools shouldn’t have to pay for content made freely available without expectation of payment. Some issues with how to actually implement this, though. Legislation or other measures?
  • Arguments against legislation: (made by CAL [?])
    • a changing environment: changes to legislation will confuse authors and others.
    • Legislation may limit publishers’ and authors’ ability to experiment with new business models.

[CAL seems uncooperative.]

  • Trying to contact website authors individually is not an effective process.
  • Concern that Part 5B being extended online means a market is being created where one didn’t exist before.
  • We may have little option but to start limiting student access to the Internet.
  • We’re not trying to avoid paying for content that website authors are actually trying to commercialise.
  • Part 5B was never intended to create an alternative business model.
  • If a person has taken steps to exploit their work, then multiple copies by schools could interfere with sales, and remuneration should be given. But if no steps have been taken, then schools should be able to make use of the content.

Orphan Works

Emily Hudson

TC Beirne School of Law

  • In discussions of orphan works, not enough attention to mechanisms for losing ownership. The assumption that copyright owners can resurface after several years and reassert rights is problematic.
  • Discusses several potential solutions to orphan works problems.
  • Strange to think that copyright owners who don’t take any steps to protect or enforce copyright for years can reassert ownership. Could potentially solve this by treating IP more like real property. [May have possible unintended results?]
  • We need to divorce questions of copyright term from ownership.
  • Recognising a doctrine of abandonment may only be useful for recognising a subset of orphaned works.
  • Abandonment, estoppel, and other laws might be helpful here.
  • Many proposed reforms focus on good faith and conduct of the user. One question: whether more focus should be put onto the conduct of the copyright owner.

Robyn van Dyk

Australian War Memorial

  • AWM looking to web publish selections of unpublished works in the collection, from WWI.
  • Collections of diaries, letters, etc. Many donated to the AWM. Copyright holders: Bean (?) family estates, but also estates of letter authors that are difficult to find.
  • Removing letters where copyright is hard to determine problematic:
    • It means sharing an incomplete collection,
    • Will therefore need to keep sharing physical items, making them harder to preserve.
  • Therefore sharing it all under 200AB. (?)
  • To follow: Birdwood estate collection. Another collection, in which papers will be treated individually rather than as a collection.
  • In many cases, it’s a waste of taxpayers’ money to try to find authors/copyright holders.
  • We need to publish material electronically in order to preserve it, as it’s getting heavy use.

Matt Dawes

Australian Digital Alliance

  • Key tenet of copyright: it exists for a limited work.
  • Need a mechanism to use orphan works that are still in copyright.
  • 3 step test not designed to guide exceptions.
  • AU could use the 3 step test to draft an exception for using orphan works.
  • Issues:
    • what constitutes ‘reasonable inquiries’ about copyright holders for works assumed to be orphaned works?
    • How to allow scalable searches? (eg. Looking at a few works in a collection to determine whether the collection as a whole can be counted as orphaned).
  • Need to protect users who make reasonable inquiries but are faced with the unexpected reemergence of rights holders.


  • Interesting point raised: putting stuff online when it was initially written for private consumption, not public. (Eg. Writing a diary in a trench during WWI – not meant for publication.)

In conclusion…

Kim Weatherall

  • We need to think about producer interests as well as user interests.
  • We should be willing to ‘get bolshie’ rather than always taking a risk management approach.
    • Government should take a robust approach to negotiating international negotiations.
    • We need more strategic thinking about how to push boundaries within institutions.
  • Government approach is that it’s not just about legislation.
  • The user community is not as organised or coordinated as it needs to be.


Our challenges:

  • How to develop reform proposals that:
    • are persuasive, targeted, and relevant,
    • will persuade government that our concerns matter and require government action,
    • are relevant: make sense within the constraints of international treaties.
  • More broadly:
    • We’ve been thinking about legislation, but there are other option. Possible issues here with fragmentation and/or non-representation.


Ideas on what’s coming – quite a long list! Hopefully Kim will be putting this up elsewhere :)

> We’re going to have to get coordinated in responding to all of this.

  • A handy table: what’s coming up, and what practical steps might be required?
  • Ideas on submissions, how to coordinate and communicate.
  • One aspect: how to facilitate risk management approaches.


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