Today the disability access amendments to the Copyright Act come into force

Today is an exciting day for Australia’s copyright community – the majority of provisions in the Copyright Amendment (Disability Access and Other Measures) Act 2017 come into force, and with them the most significant changes to Australian copyright law in over a decade.

The first thing that must be said about this Act is to acknowledge just what a big deal it is that it exists at all. Copyright changes only come about once or twice a decade, and these changes are even rarer because they focus on the rights of Australians to use copyright material rather than expanding the rights of copyright owners. The Act introduces new provisions for Australians with a disability, libraries and archives, teachers, and anyone wanting to access and make use of our historic collection. Everyone who worked on it – in the government and in the stakeholder groups – should be proud.

We’ve written about this Act before, summarising the benefits it will provide to all Australians in our blog posts, submissions and press releases. It basically exists because of the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled (more pithily known as the Marrakesh Treaty), which came into effect on 30 September 2016. The Marrakesh Treaty is a big deal in international copyright law, not only because you don’t get new treaties that often, but because it is the first treaty to focus on the rights of copyright users, rather than copyright creators (similar treaties for schools and libraries are in the works).

Australia was a founding member of the Marrakesh Treaty, and has always been one of its champions. On its ratification the government declared that Australia would introduce new laws that would simplify and streamline the exceptions we already had, to ensure we were world leaders in accessibility rights. And they were true to their word.

Although it took 18 months to finally get them through parliament, the amendments introduced by the Act significantly strengthen the rights of Australians with a disability to create and use accessible versions of copyright works, by replacing the current clunky and bureaucratic accessibility provisions with two new exceptions that are shorter, broader and more flexible. These are a new fair dealing for disability access (s113F) and a new exception for institutions assisting people with a disability (s113E). Both of these exceptions improve on the previous provisions by applying equally to any material you want to use (be it book, film, or audio recording), to any use you want to make (be it copying, adapting or uploading to the cloud) and people with any disability (be it vision, hearing, intellectual, physical or even temporary). In short, from now on you should be able to do anything reasonable that you need to do to allow a person with a disability to access copyright material in the same way as a person without a disability.

But that’s not all the Act does. Somewhere along the line, someone thought that if they were going to be writing a bill anyway, they may as well fix a few more of the niggling problems with Australia’s copyright law – problems that everyone agrees should be fixed, but that no one had got around to. And so we ended up with what people began referring to as the “low hanging fruit” bill. The copyright team at the Department of Communications and the Arts reached out to representatives of the different stakeholders in Australia’s copyright debates to come up with changes that everyone could agree on.

In the end, three changes in addition to the disability access updates made it into the Act (an additional change, the safe harbour extension, was in the original bill, but turned out to be more controversial than originally anticipated and so has been removed for further consultation). The changes are:

  • A new exception for preservation of library and archive collections that replaces the current confusing and paradoxical exceptions and removes (almost) all restrictions;
  • Much needed simplification of the statutory licence for education, making it more efficient and effective for rights holders and educational institutions alike; and
  • Ending the antiquated concept of perpetual copyright for unpublished works, and setting a fixed copyright term for works whose authors are unknown.

For the details, our friends over at the Australian Libraries Copyright Committee have put together excellent fact sheets on how some of the new provisions will work in practice, with more to come.

But maybe the most significant thing about the bill is the cooperative process that brought it about. Copyright policy can be a fraught area, with strong opinions that don’t generally lend themselves to compromise. However, in this case everyone came together – creators, publishers, collecting societies, librarians, teachers, disability and consumer advocates – and came up with significant improvements that will benefit all Australians. Everyone agrees that more changes are needed (though not always what those changes should be or how they should roll out), but it’s a start.

And in 2018 we have a chance to do it all again. The government has committed to conduct a number of copyright reviews looking at recommendations from the Productivity Commission’s IP Inquiry – the need to make it easier for people to use orphan works; to clarify what happens when contracts seek to override copyright exceptions; and most importantly, how to introduce much needed flexibility and adaptability to our copyright law. Although there are going to be some big issues on which agreement cannot be reached, the opportunity exists to draw on the experience of this year to explore some common ground solutions for everyone. Let’s hope that the outcome in 2018 is as positive as 2017.

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