Senate

Explanatory Memorandum

(Circulated by authority of the Attorney General, Senator the Hon George Brandis QC)

SCHEDULE 7-NATIONAL LIBRARY MATERIAL

GENERAL OUTLINE

317. Schedule 7 will make amendments to the Copyright Act 1968.

318. The Copyright Act creates the framework for the subsistence of copyright, and the protection and use of copyright material.

319. Section 201 of the Copyright Act requires publishers of certain literary, dramatic, musical or artistic works to deliver copies of their works to the National Library of Australia (the National Library). This is known as the legal deposit scheme.

320. The purpose of the legal deposit scheme is to preserve Australia's published cultural heritage, consistent with the National Library's mandate to build a comprehensive collection of library material relating to Australia and the Australian people.

321. The current legal deposit scheme only applies to material that is published in a print format. The amendments will extend the legal deposit scheme to also encompass works published in an electronic format.

322. The scheme will capture two different types of material, with different delivery obligations attached. These categories will be as follows:

(a)

Material published in Australia that is not available online. For ease of reference, throughout Schedule 7 this material is referred to as 'offline material'. There will be two subcategories of this material:

(i)

Hardcopy material, including material that is captured by the current legal deposit scheme, for example a book, but the obsolete format of letter-press will no longer be included.

(ii)

Offline electronic material, for example a CD of maps.

Publishers of offline electronic material will be required to deliver a physical copy of the material within one month of publication.

(b)

Published material that is available online. For ease of reference, throughout Schedule 7 this material is referred to as 'online material'.

Publishers of online material will be required to deliver a copy of their works, in electronic form, only if they receive a request from the National Library, within one month of that request.

The request-driven basis of the scheme for online electronic material will ensure that the large volume of online electronic material that is not required for the National Library's collection will not be captured automatically. It will also ensure clarity for publishers regarding what is required to be delivered, given the potential for uncertainty resulting from the large scale and dynamic nature of online publishing.

323. The scheme will only apply to published material in which copyright subsists under the Copyright Act. Publication is defined in section 29 of the Act and generally requires an element of supply to the public.

324. The amendments will require that electronic material must be accessible by the National Library (that is, free from technological protection measures and accompanied by any software required) and hardcopy works must be of an appropriate quality to be handled (that is, a 'best copy').

325. The amendments will also update the penalty and insert an infringement notice scheme to deal with non-compliance. The non-compliance penalty and the infringement notice scheme are consistent with the Attorney-General's Department Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers.

326. The administrative burden on the National Library would be reduced by removing the requirement to provide a receipt after a work is delivered.

Copyright Act 1968

Item 1: Subsection 10(1)

327. Item 1 will insert definitions for four new terms in subsection 10(1). 'Available online', in relation to National Library of Australia (the National Library) material, has the meaning given in section 195CF (to be inserted by item 4). 'Delivery period' has the meaning given in subsection 195CD(2) (to be inserted by item 4). 'National Library material' has the meaning given in section 195CE (to be inserted by item 4). 'National Library Minister' means the Minister administering the National Library Act 1960. This will clarify that the National Library Minister will not necessarily be the Minister administering the Copyright Act.

Item 2: Subsection 10(1) (definition of the National Librarian )

328. Item 2 will repeal the definition of the National Librarian.

Item 3: Before section 195A

329. Item 3 will insert the heading 'Division 1 - Interpretation'.

Item 4: Before section 195B

330. Item 4 will insert the heading 'Division 2 - Review'.

Item 5: After section 195B

331. Item 5 will insert a new division - 'Division 3 - National Library of Australia'.

Section 195CA

332. Item 5 will insert new section 195CA which contains a simplified outline of Division 3.

Section 195CB

333. Item 5 will insert a new section 195CB.

334. Section 195CB will create two new offences for failing to deliver National Library material in accordance with requirements set out in section 195CD.

335. Subsection 195CB(1) will create an offence for failing to deliver published material, whether in hardcopy or electronic form, that is not available online. This offence will apply to material that is published in Australia.

336. Subsection 195CB(2) will create an offence for failing to deliver published electronic material that is available online. The publisher will not be required to deliver the material unless the National Library requests that material under section 195CC (to be inserted by this item). There will be no specific requirement that online material be published in Australia. However, the National Library will request material in accordance with its mandate under the National Library Act 1960 to maintain a comprehensive collection of library material relating to Australia and the Australian people.

337. Paragraph 195CB(1)(b) will ensure that where a person publishes material offline, and that same material is published online and is requested by the National Library, the publisher will only be obliged to deliver the online material. The effect will be that once a request is made, the publisher need only comply with subsection 195CB(2) and not subsection 195CB(1) (both of which are to be inserted by this item). This rule will only apply where the request for the online material is made within one month of publishing the material offline. The reason for this time limit is that the delivery period for offline material will expire one month after publication, and if a request for the online material is made within this timeframe, the publisher will be aware before expiry of that period that the publisher does not need to deliver the offline material. However, if the National Library requests the online material after this time limit has expired, the publisher will be obliged to comply with this request, regardless of whether the publisher has already complied with the obligation in respect of the same offline material. In practice, the National Library will only request the online material in addition to the offline material that has already been delivered if this was required for the purposes of its collection mandate.

338. The penalty for these offences will be 10 penalty units. This penalty is considered appropriate in comparison with similar but more minor offences in the Act, such as those provided in sections 203A through to 203H. Non-compliance costs will also need to be higher than compliance costs, so that the penalty provides a sufficient deterrent for non-compliance.

339. Both offences will be offences of strict liability. This is appropriate since the offence will impose a low penalty, is intended to operate in conjunction with an infringement notice scheme to be set out in the Copyright Regulations 1969 and cases of infringement can be identified easily.

340. Subsection 195CB(4) will provide that subsection 4K(2) of the Crimes Act 1914 (about continuing offences) will not apply in relation to an offence against subsections 195CB(1) or 195CB(2) (both of which are to be inserted by this item). This means that each instance of failure to deliver particular material within the 'delivery period' provided in section 195CD(2) (to be inserted by this item) will be regarded as a single offence, rather than a continuing offence in respect of each day of non-compliance after the delivery period expires. However, this will not mean that failure to deliver multiple works will not result in an offence in respect of each work.

Section 195CC

341. Item 5 inserts new section 195CC.

342. Section 195CC will provide that the Director-General of the National Library may request a publisher to deliver to the National Library a copy of National Library material that is available online, in accordance with section 195CD (to be inserted by this item). The Director-General will be able to delegate this power to a senior executive service (SES) employee of the National Library in accordance with section 195CI.

343. Paragraph 195CC(1)(c) will reflect the intention that requests will be made at the discretion of the Director-General, in accordance with the collection mandate of the National Library under the National Library Act.

344. Paragraph 195CC(2) will clarify that the request may be made any time after the material is published.

345. There will be a requirement to make the request in writing. Subsection 195CC(3) will ensure that the National Library has the flexibility to request and collect material in the most efficient way, such as through automated web harvesting or other technical processes. Subsection 195CC(3) will provide one example of how the National Library may obtain implied consent to receive electronic communications as required by subparagraph 9(2)(d) and the definition of 'consent' contained in section 5 of the Electronic Transactions Act 1999. The example will be illustrative, non-exhaustive and not intended to limit the processes used by the National Library in any way.

Section 195CD

346. Item 5 will insert new section 195CD.

347. Subsection 195CD(1) will set out requirements for delivery of National Library material to the National Library. A publisher will need to deliver the material within the delivery period set out in subsection 195CD(2).

348. Subsection 195CD(1) will also provide requirements for the quality and accessibility of the copy of the material to be delivered.

349. Paragraph 195CD(1)(a) will provide that the copy to be delivered must be a copy of the whole material (including any illustrations, drawings, engravings, photographs and audio-visual elements). This will ensure that the copy is of the same quality as, and contains all the features that are attached to, the published material.

350. Paragraph 195CD(1)(b) will apply to online electronic material that is requested and will ensure that it must be provided in the same online form and not, for example, as a hardcopy printout of that material.

351. Paragraph 195CD(1)(c) will apply to a copy in an electronic form (whether online or offline) and will ensure that the National Library is able to access the copy in order to preserve it.

352. Paragraph 195CD(1)(d) will apply to a copy in a hardcopy form and ensure that it must be a 'best copy' in the sense that it is of the same quality as its published form.

353. Paragraph 195CD(1)(e) will require the publisher to deliver the material at the publisher's own expense. However, in cases where the material will be requested in accordance with section 195CC (to be inserted by this item), the request may state that delivery will not be at the publisher's expense.

354. Paragraph 195CD(1)(f) will refer to any additional requirements that may be prescribed by the National Library Minister regarding the quality, accessibility or other properties of the copy to be delivered. This will ensure that the requirements in this subsection are able to adapt to future technologies or formats.

355. Subsection 195CD(2) will provide a delivery period within which the publisher must deliver material to the National Library. For offline material, the delivery period will be one month from the date of publication of that material. For online material, the delivery period will be one month from the date of request by the National Library.

Section 195CE

356. Item 5 will insert new section 195CE.

357. Section 195CE will set out the scope of material that needs to be delivered by providing a definition of National Library material. In order to be captured as National Library material, the material must be a literary, dramatic, musical or artistic work, or an edition of such a work. This material may be in electronic (whether online or offline) or hardcopy form. Paragraphs 195CE(a) through to 195CE(e) will provide further elements that must be present for the material to qualify as National Library material.

358. Subparagraph 195CE(a)(i) will provide an exclusive list of formats that are to be captured. These will include electronic and hardcopy formats that are currently contemplated. Hardcopy formats that are currently captured in section 201 are included in this list. However, sheet of letter-press is not included as it is an obsolete format. Subparagraph 195CE(a)(ii) will provide a power for the National Library Minister to prescribe additional formats by legislative instrument, to ensure that any new formats that develop in future may be captured if appropriate.

359. Paragraph 195CE(b) will provide a further element that copyright must subsist in the material under the Act. At present, copyright subsists in a published work where conditions in subsection 32(2) of the Act are met. The Copyright (International Protection) Regulations 1969 extend the subsistence of copyright to certain foreign works.

360. Paragraph 195CE(c) will exclude material that is primarily audio-visual. This is because such material will fall within the collection mandate of the National Film and Sound Archive of Australia set out in section 6 of the National Film and Sound Archive Act 2008 and would be more appropriately dealt with under any future legal deposit scheme that applies to that institution.

361. Paragraph 195CE(d) will apply to editions and provides a threshold of difference from the original work or previous edition before that material will qualify as an edition. This will ensure that publishers are not required to deliver mere reprints of material that they have previously delivered.

362. Paragraph 195CE(e) will provide a power for the National Library Minister to prescribe material to be excluded from the definition of National Library material. This power may be exercised, for example, if a format that is currently captured becomes obsolete, or proves in practice to be too costly or technically difficult to deliver or preserve.

Section 195CF

363. Item 5 will insert new section 195CF.

364. This section will define 'available online' to mean communicated on the internet. The definition could also be extended to mean communication via some other electronic form that is prescribed by the National Library Minister, in the event that some new platform is developed which is analogous to the internet.

Section 195CG

365. Item 5 will insert new section 195CG.

366. Subsection 195CG(1) will provide the National Library Minister with the power to prescribe an infringement notice scheme for failure to deliver material in accordance with subsection 195CB(1) or subsection 195CB(2) (both of which will be inserted by this item). This will enable offences to be processed more efficiently, and it is appropriate given that this will be a minor offence.

367. Subsection 195CG(2) will provide that the penalty imposed under an infringement notice must equal one-fifth of the maximum penalty that is set out in subsection 195CB(1) or subsection 195CB(2) (both of which will be inserted by this item). That is, the penalty under the infringement notice scheme will equal one-fifth of ten penalty units (currently equal to $340.00).

Section 195CH

368. Item 5 will insert new section 195CH.

369. Section 195CH will reflect the intention that the amendments do not impact on the scope of any State or Territory legal deposit provisions. A publisher will still be obliged to deliver material under this scheme as well as other schemes.

Section 195CI

370. Item 5 will insert new section 195CI.

371. Section 195CI will enable the Director-General of the National Library to delegate any of his or her powers under this Division, including the power to request material to be delivered in accordance with section 195CC (to be inserted by this item) and to extend the delivery period provided in section 195CD (to be inserted by this item).

Section 195CJ

372. Item 5 will insert new section 195CJ.

373. Section 195CJ will provide a power for the National Library Minister to prescribe matters that are required or permitted to be prescribed by this Division. Matters that the Minister could prescribe include additional requirements for the copy of material to be delivered to the National Library (paragraph 195CD(1)(f) to be inserted by this item), additional formats that would be captured by the definition of National Library material (subparagraph 195CE(a)(ii) to be inserted by this item), works or editions to be excluded from the definition of National Library material (paragraph 195CE(e) to be inserted by this item) and an infringement notice scheme (subsection 195CG(1) to be inserted by this item).

411. Item 5 will also insert the heading 'Division 4 - Other matters'.

Item 6: Sections 201 and 241

374. Item 6 will repeal sections 201 and 241. The current legal deposit scheme contained in section 201 will be integrated with the new scheme contained in item 4. Section 241 deals with the application of the existing scheme which will not be required if section 201 is repealed.

Item 7: Application of amendments

375. Item 7 will clarify that the amendments apply prospectively, to any material that is published on or after commencement.