Modernisation needed to protect the past

Transcending language and cultural boundaries, appealing immediately to the eye and the ear, to the literate and illiterate, audiovisual documents have transformed society by becoming a permanent complement to the traditional written record. 

October 27 is  UNESCO World Day for Audiovisual Heritage. A sobering day to remember that ‘all of the world's audiovisual heritage is endangered.’  Produced on fragile materials, lacking coordinated and concerted collection regimes and with limited resources; the preservation and curation of audiovisual material faces immense challenges.  And while Australia is lucky to have world class institutions doing their best to keep these cultural records and make them accessible, they do so without a supportive legal framework. 

Copyright law, designed to reward creators and encourage dissemination of content, has an unintended side-effect of prohibiting, or making unviable, many preservation and access projects.  To preserve an audio visual work requires reproducing and copying the work – exclusive rights of the copyright holder. Reform of copyright law would be one of the best steps we could take to preserving our audio visual heritage.

Preservation

At the moment the Copyright Act 1968 (the act) contains two provisions that allow libraries and archives to preserve audio visual works. 

The first allows a copy to be made after a work has been lost, damaged, destroyed or stolen.  So, after the work is gone, you can make a copy.  This is in lead for award of ‘most ridiculous provision’ in the act, as the Creationistas pointed out last year.

The second allows a key cultural institution (such as the National Film and Sound Archive, NFSA) to make three preservation copies, and they can do this before the work actually falls to bits.  Unfortunately, this is still falls well below world standards for digital preservation, as the NFSA points out:

Items selected for digital preservation may be subject to back up copying, format shifting, remote storage, quality control and administration, which can also involve reproducing, communicating or performing copyright material.

At the beginning of the year, the Australian Law Reform Commission (ALRC) recommended a new preservation copying exception:

The Copyright Act should provide for a new exception that permits libraries and archives to use copyright material for preservation purposes. The exception should not limit the number or format of copies that may be made.

Adoption of this recommendation would allow institutions to preemptively copy works, even at the point of acquisition when quality is best.  It would also enable world’s best practice now, and with future, yet undeveloped, technologies. 

It will not however address the issues of preservation by non-library and archive groups.  In-community archiving of indigenous heritage or preservation by local history societies may however be covered by the ALRC’s proposed ‘fair use’ exception. This exception, taking into account the public purpose of preservation and non-commercial nature of material, and balance it with effects on the rightsholder is perfectly placed to enable legitimate community-based preservation efforts. 

Orphan Works

A frequent problem with audio visual works is their uncertain copyright history.  Especially with early film a copyright holder may be unlocatable, or a film may have uncleared layers of copyright (any film can have layers of copyright, in the script, score, music, performances and so on).  These ‘orphans’, or partial orphans, pose particular problems as without a copyright holder there is nobody from whom to seek permission to copy. 

The ALRC recommended that in cases where a copyright holder couldn’t  be found after a diligent search then remedies (such as monetary damages) for the use of a work should be limited.  This would give organisations more certainty about the risks they run when preserving our heritage.

Term extension and the Trans-Pacific Partnership

At the moment Australia’s biggest ever trade deal, the Trans-Pacific Partnership (TPP) is being negotiated with 11 other countries.  Hidden in the leaked draft of the IP chapter there are proposals to extend the term of copyright protection in audio visual works and soundrecordings for an additional 25 years. 

Each term extension costs Australia in terms of cultural heritage.  The longer works stay in copyright, the longer that cultural institutes have to jump through hoops before they can properly look after them, if they can look after them at all.  Additionally, it’s worth noting that term extensions come at an economic cost to Australia. 

Currently it seems that Australia is opposing the increase and we hope that we prevail on this point. In the meantime, Australian support for some of the public interest principles and objectives being proposed by other countries would help in the interpretation and implementation of the IP chapter. In particular we need to ensure that we preserve enough flexibility around the language for exceptions.  The ability for Australia to craft adequate exceptions for matters such as preservation copying, orphan works and fair use, will be essential to preserve our past audiovisual heritage for future generations  

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