Response to the Copyright Amendment (Access Reforms) Bill 2021
The following was submitted in response to the Australian Government's Copyright Amendment (Access Reforms) Bill 2021. An archived PDF is available publicly on the Bill website.
Submission on behalf of Wikimedia Australia (wikimedia.org.au)
Wikimedia Australia is the Australian chapter of the international Wikimedia Foundation (wikimediafoundation.org) and a registered charity. We have a mission to disseminate open knowledge effectively and globally and promote Australian community engagement with Wikipedia, Wikidata and other Wikimedia platforms through events, training and partnerships.
Our members and contributors are both users and creators of intellectual property. We work with libraries, universities, NGOs, government and industry across Australia to enhance access to knowledge and are members of related organisations including Open Access Australasia and Creative Commons Australia.
Wikimedia projects such as Wikipedia and Wikidata rely on access to credible sources such as academic journal articles, books and research reports for verification and citations for content posted to its platforms which are viewed by millions of people around the world everyday. We therefore welcome reforms to the Copyright Act which will ensure access to information resources to support innovation, education and the public interest. We appreciate the opportunity to provide input into the Copyright Amendment (Access Reforms) Bill 2021 and Review of Technical Protection Measures Exceptions (the Access Reforms).
1. Orphan works
We strongly endorse the changes to Orphan works proposed in the Bill. Wikipedia plays a major role in providing knowledge of Australian history, sport and culture, science and innovation, and flora and fauna for educational and public interest purposes. Access and use of orphan works, either directly or via cultural institutions, will therefore significantly advance coverage of Australian culture and history on Wikimedia platforms.
Wikimedia projects such as Wikipedia, Wiki Source and Wiki Commons rely on a wide range of reference materials, as well as primary and secondary sources including documents, images, audio and video resources. As the discussion papers notes, vast amounts of material held by Australian collecting services, universities, historical societies etc. are orphan works and under the existing copyright regime are inaccessible to the public including many contributors to Wikipedia and other Wikimedia platforms.
In addition many documents, including government publications, research reports and other public interest materials are published online for a period of time and then become unavailable due to centres, departments and organisations closing down and no copyright holder being identifiable or contactable. In many cases the content may not have been preserved by any service at the time of publication due to copyright restrictions and also cannot be collected and made available once they are orphaned, thus creating a digital black hole. These public interest documents could be curated and managed for public interest access by Wikimedia platforms or other digital collecting services with the proposed changes.
Wikimedia Australia is pleased to see that the proposed orphan works scheme is intended to cover all forms of copyright material, including audio-visual material and that non commercial use will be a factor when considering the nature of the copyright material being used and the context of its use.
We endorse the suggestion in Table 1 that ‘In some circumstances it may be reasonable for the user to rely upon a prior search conducted by another person’ however we would encourage clear rules around the role and procedures of collecting services, education institutions and online platforms in making orphan works available and their role in providing ‘Reasonably diligent search’ for third parties, with clear identification of the status of a work to ensure efficient access and use of orphan works without wasted time in multiple searches for untraceable copyright holders.
2. New fair dealing exception for non-commercial quotation
Wikimedia Australia strongly endorses the proposed fair dealing exception for non-commercial quotation. This exception will have enormous benefits for Wikimedia platforms, allowing more research and verified sources to be referenced and quoted.
The proposed quotation exception will help to ensure that Australian contributors to Wikipedia and other projects are able to use copyright material in the same ways as their international peers. As a global platform, Australia’s restrictive copyright laws often create complexities and confusion when collaborating with peers around the world. Article 10(1) of the Berne Convention imposes an obligation for an exception for fair quotation. The proposed fair dealing for quotation exception would mean that Australia would meet that requirement.
Wikimedia Australia supports the broad scope of materials that the quotation exception is intended to cover including text, images, audio and video.
However Wikimedia Australia is concerned about the wording around the uses for which quotation is permissible – new s113FA(1) – as it is not clear whether Wikipedia or other Wikimedia platforms or their users would qualify as a the type of organisation intended by the Act or whether writing and editing a Wikipedia page would be classified as research.
The proposed wording is ‘by a person or an organisation for the purpose of research’. The Discussion paper explains that ‘This may include individuals such as academics, teachers, students, documentary makers and family historians, and organisations that are engaged in scientific, medical or industrial research such as hospitals, medical research institutes and CSIRO.’ While the Wikimedia Foundation conducts research and Wikipedia uses a great deal of research for the purpose of encyclopedia entries, it is unclear whether this exception would allow the use of quotations on Wikipedia. None of the examples provided in Table 3 of the Discussion paper would apply to Wikipedia which is extremely concerning.
As one of the most visited online information platforms providing free access to quality research and information, it is essential that Wikimedia editors and contributors in Australia are able to quote verifiable sources for non-commercial, public interest purposes.
For s113FA(1)(a)(vii) it would be preferable for the stated purpose to be ‘research or study’, rather than research only, in line with Fair dealing provisions in SECT 40 of the Act. This will avoid confusion as many Wikipedia contributors such as university academics and students, are familiar with the language of ‘research or study' when relying on the existing research or study fair dealing exceptions. The proposed drafting may cause confusion and has the potential to be construed by a court as applying to a more limited range of activities than are covered by the research or study fair dealing exception.
We would also encourage the proposed amendments to extend to SECT 41 Fair dealing for purpose of criticism or review, as quotations are often used and required for this purpose to provide accurate information on cultural, political and scientific works and topics.
However we support 113FA (5) which makes it clear that many of the uses for quotations such as illustration, explanation, authority and homage would apply to Wikipedia and other Wikimedia projects. These examples are consistent with research and study and criticism and review and support the inclusion of this terminology for allowed uses throughout the quotation section.
The proposed draft provides a note that: ‘A dealing with copyright material for the purpose of research may involve: (a) the publication of the material; or (b)otherwise making the material public.’ The discussion papers also states that quotations of copyright material ‘for the purpose of research’ extends to making the research public, including by making the research findings online. ‘New exception will apply to all types of copyright material and be technology neutral, allowing quotations to be made in digital formats and in online contexts.’
This is critical to ongoing relevance of the changes proposed, not only for Wikimedia projects but for many public interest uses of quotations of copyrighted material and therefore should be made clear either in the legislation itself or in the bill’s Explanatory Memorandum.
Question 2.1: Quotation: Unpublished material
Should the proposed new quotation fair dealing exception in section 113FA extend to the quotation of unpublished material or categories of unpublished material?
Yes. Wikimedia Australia strongly supports the proposal that the exception should apply to unpublished material in the same manner as it is expected to apply to published materials. There is a large volume of material held by collecting agencies, museums and universities that is unpublished and limiting the exception to published material would create unnecessary confusion as to whether something was published or not, especially as some material considered ‘unpublished’, may still be publicly via online databases, websites or social media etc.
As the Discussion paper states, ‘such an approach would be consistent with other, existing fair dealing exceptions in the Act, such as those for the purpose of research or study, criticism or review, parody or satire, and news reporting, under which quotation of unpublished material can occur.’ To avoid conflict across these overlapping exceptions section 113FA should extend to quotation of unpublished material.
3. Update and clarify library and archives exceptions
Wikimedia Australia and the global Wikimedia community relies heavily on credible and verifiable sources for its open knowledge products and libraries and archives are major partners and sources of information. Therefore we strongly support the proposed changes to the library and archive provisions which will significantly reduce the administrative burden associated with document supply and enable libraries and archives to make more of their collections available to remote users, without creating harm to rightsholders. As a national and a global platform, this will support greater coverage of significant topics of interest from and about Australia that currently cannot be developed without access to online resources only available in library and archival collections in Australia.
4. Update and restore education exceptions
Wikimedia Australia welcomes the changes to the education exceptions in ss28 and 10 of the Act to render each of these exceptions material and technology neutral. As the Discussion Paper notes, these amendments will ensure that Australia’s education copying exceptions better support contemporary teaching methods. Wikimedia Australia undertakes regular training and education on contributing to Wikimedia platforms both in person and increasingly online to communities around Australia. Greater clarification of the education exceptions will ensure a wider range of resources may be used for instructional purposes.
Thank you for this opportunity to provide a submission on these important reforms. We look forward to the next steps in this process.
Prepared on behalf of the Wikimedia Australia Committee,
Alex Lum, President, Wikimedia Australia
Amanda Lawrence, Secretary, Wikimedia Australia
Pru Mitchell, Treasurer, Wikimedia Australia
Caddie Brain, Executive Officer, Wikimedia Australia