Permitted Acts and Exceptions
(24) As noted in paragraph (5) of this Submission, LIANZA strongly supports the points made in paragraph 153 of the Position Paper, that it is important that users of copyright material are able to take advantage of technological developments, and that the existing exceptions in the Act should apply in the digital environment, unless cogent reasons exist to the contrary.
Licence Agreements
(25) While most large New Zealand libraries already have licence agreements with database publishers, vendors and aggregators, LIANZA shares the concerns about licence agreements outlined in paragraph 158. Many of the agreements are unnecessarily restrictive; it is not always possible for a single library to negotiate successfully with large multinational database suppliers; and it is simply not feasible for an institution to enter into separate licence agreements with every publisher or copyright owner.
Fair Dealing
(26) LIANZA considers that the fair dealing provisions of the Act can be applied to digital works with no greater (although no less) difficulty in interpretation and application than is already the case with other types of work. Libraries and library users already face difficulties in interpreting section 43(3) of the Act; and it is iniquitous that the only way a citizen can know what is permitted and not permitted is for there to be a court ruling. However, these issues relate equally to print, digital and other formats.
Webcasting, Transient Copying
(27) LIANZA agrees with paragraph 162(a) that webcasting and any new transmission technologies should be included within section 42(2) of the Act.
(28) Because of the present uncertainly relating to transient copying, LIANZA is of the view that, as recommended in paragraph 162(b), transient copies should be explicitly excluded from all provisions of the Act that specify the number of copies that may be made on a particular occasion.
Libraries
(29) LIANZA believes that the current list of permitted acts in the Act is adequate to ensure that users' have reasonable access to works in the digital environment, provided that the definition of copying in the Act includes both copying of digital works, and conversion of non-digital works into digital form. The Position Paper paragraph 170 argues that both of these are already covered by the definition of copying in the Act. However, the very fact that there is so much dispute about this would seem to indicate that the definition is not sufficiently clear. (Even the Ministry is unsure: paragraph 178 says "As it is likely that the definition of copying includes digital copying…"). LIANZA recommends that the definition be amended so that there can be no room for doubt.
(30) LIANZA supports the view (paragraph 171) that the Act should include an exception that permits digital archiving of entire collections for preservation purposes, subject to the proviso that the digital copies may not be made available to users unless the original work is lost, damaged or at risk. Access to such digital copies should be permitted both within and from outside the library to authenticated users.
Copying for Educational Purposes
(31) LIANZA is disappointed by the comparatively slight consideration given in the Position Paper to the issue of copying for educational purposes. For educational institutions, one of the most pressing needs is for the extension to the digital environment of the provisions in the Act relating to copying and making available for educational purposes. In particular, educational institutions require the right to provide access to their students to copies of copyright publications in electronic format, instead of in print format, via an intranet server that is accessible only to authenticated students of the courses for which the publications are required or recommended reading. This right is needed to provide efficient access to materials for teaching purposes, particularly for the increasing number of courses taught online and to distance students by educational institutions. It is currently prohibited by Section 16 of the Act, which states that including the work in a cable programme service is a restricted act.
(32) LIANZA argues that it is anomalous for the Copyright Act Sections 44-46 to permit (with carefully defined restrictions) the copying for educational purposes of copyright material onto paper for distribution to students, but not to permit the same material to be copied into digital format for access by students. This anomaly is a major impediment to educational instruction. For these reasons LIANZA repeats its strong recommendation that the Copyright Act be amended to make clear that making copyright material available in a restricted-access electronic retrieval system for educational purposes, both on-site and remotely, is permitted.
(33) In line with its view that the provisions of the Act should be technologically neutral, LIANZA is not arguing that the very restrictive provisions of Sections 44-46 of the Act should not apply to digital copying. The Act encourages users of copyright material to enter into licence agreements with organisations that represent copyright owners, in order to extend the limited provisions of the Act. Unfortunately, at present the licence agreements which educational institutions have with Copyright Licensing Limited do not permit the copying and making available in electronic format of copyright materials by educational institutions, although it is understood that a new licence agreement currently being negotiated may make provision for this.
(34) Paragraph 175 of the Position Paper states that the Ministry's preferred policy is to make provision for libraries and archives to provide access only to material that is made available by the copyright owner in digital form. The proportion of copyright material that is made available by copyright owners in digital form represents only a very small proportion of the world's publishing output, being restricted in the main only to materials published in the last few years. The Ministry's policy goes nowhere near to meeting the needs of educational institutions in this regard.
(35) Further, the Ministry suggests that libraries and archives be permitted to provide access to such material only through on-site terminals. Whether "on-site" refers to terminals within the library, or more widely within the educational institution, this provision if implemented would defeat the whole objective of making best use of developing technologies (paragraph 174), and would do nothing to enable libraries to service the needs of off-Campus and distance students.
(36) LIANZA therefore recommends that the Copyright Act be amended to permit educational institutions to copy materials into electronic format, in line with the present provisions of the Act relating to copying for educational purposes, and to provide access to digitized materials for their students via an intranet server that is accessible only by authenticated students and staff of the educational institution, both on-site and externally.
Interloan
(37) In line with the principles outlined in this Submission, LIANZA's view regarding lnterloan is that, since a librarian of a prescribed library is permitted to make a copy of a work for the user of another prescribed library (Section 53), it is (or should be) immaterial whether this copy is provided in print or electronic format. Supply in electronic format has advantages both for the sending library, the receiving library and the requester, and allows much greater speed of delivery. Present systems, which require the requester to assure the library that the work is required for research or private study, can apply equally to digital supply.
(38) Paragraph 179 of the Position Paper reports that copyright owners have expressed concern that the digital distribution of their works increases the number of viable copies in circulation. This need not be so: both the supplying and receiving libraries can be required to delete the digitised material after transmission; and the person who requested the material is of course bound by the Act not to make additional copies - there is no difference here between the digital and print environment, and the digitised material could easily be accompanied by a form statement to this effect.
(39) LIANZA recommends that libraries should be permitted to supply on Interloan copies both of works already in digital format, and of works which have been digitized from hard copy for this purpose.
Caching
(40) If an exception is made for caching (see paragraph 16 of this Submission), there should be no need for a separate exception for educational institutions, as suggested in paragraphs 180-181.
Other Issues
(41) The other issues raised in Part Eight do not apply to libraries, so no comment is included here.
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