Executive Summary
2. At this time, the Act does not require substantial amendment but some clarification of the application of existing rights and exceptions in the digital environment is necessary.
3. The Act provides copyright owners with a right to control copying of their work, known as the reproduction right. It is recommended that the application of this right to digital material be clarified and also that an exception be provided for transient copying undertaken automatically by computers or communications networks as a result of an automatic or inevitable technical process.
4. Given the increasing importance of communication in the digital world, it is also recommended that the Act be amended to include a technology-neutral communication right and a corresponding category of communication works that would receive copyright protection. This would replace the current technology-specific provisions relating to broadcasting and cable programme services. As an adjunct to this right, it is proposed that the exceptions for the print disabled be amended to allow for communication of works where necessary.
5. It is proposed that the potential liability of Internet Service Providers for both primary and secondary infringement be limited in certain circumstances, to ensure continued access for consumers to internet services at reasonable cost. An exception is also recommended to allow caching by Internet Service Providers, in order to provide efficient services.
6. Technological protection measures are used to prevent access to and copying of works in digital form. The Act prohibits the making, importing, hiring and selling of devices or information designed to circumvent "copy protection" mechanisms. It is proposed that this section be expanded to cover all rights provided to copyright owners, not just copying, but that it should maintain its focus on devices, means or information that are intended to facilitate infringement of copyright. It is also recommended that an offence provision be introduced for large-scale commercial dealing with such devices, means or information. It is also proposed the protection be provided for electronic rights management information that identifies content protected by copyright and the terms and conditions of use, but not tracking functions associated with this technology. An offence provision is also recommended.
7. The Act also provides for a range of exceptions or permitted acts. Clarification in a number of areas is recommended, subject where necessary to strict conditions: the application of the "fair dealing" provisions to digital material; allowing libraries and archives to preserve their collections digitally; allowing libraries and archives to provide on-site and remote access to material they receive in digital form; allowing libraries to communicate digitally material they receive in digital form to users and other libraries on request; allowing educational institutions to cache websites for teaching purposes; and to communicate material digitally where this is consequential to permitted copying allowed under the Act. It is proposed that the time shifting exception should apply to all technologies, except those communications available through on-demand services that can be accessed on request.
8. A number of new exceptions are also proposed: format shifting by the owner of a legitimately owned sound recording to make one copy of that recording in each format for personal and domestic use; and decompilation and error correction of software in certain circumstances, again subject to strict conditions.
9. In terms of international developments, no specific recommendation is made at this time in respect of the World Intellectual Property Organisation Copyright Treaty and Performers and Phonograms Treaty. The changes recommended in this paper are, however, consistent with the requirements of the treaties and are based on a comparative assessment of the approaches of a number of States to the implementation of the treaties. In some areas, including technological protection measures, there is as yet no international consensus concerning implementation. The suggested changes in respect of the communication right, electronic rights management information and to a limited extent technological protection measures would have the effect of bringing the Act into line with the treaties.
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