Mental note: never start doing scenario analysis. It leads to more…

I’ve received another question from a reader, about the Copyright Amendment Bill and its criminal provisions: this time as it applies to libraries. Here’s the hypothetical:

Libraries in Australia sometimes purchase copies of DVDs from Amazon or other overseas providers, because they are cheaper than going through the Australian distributor, or because the copyright owner has decided not to license a film for distribution in Australia. Would allowing these copies to be borrowed by staff and students, who may use them for research or show them in class, be impacted by the new laws?

The reason my reader has expressed concern is because:

    1. Australian copyright law bans the parallel importation of films. This means that authorised copies (ie, official copies) of films purchased overseas, when sold or dealt with commercially in Australia, are ‘infringing copies’
    2. The various criminal provisions all talk about selling, distributing etc infringing copies.
    3. So, my reader asks: might the library be ‘importing’ or ‘distributing to an extent that affects prejudicially the copyright owner’ an infringing copy of a film?

      I have to say, that I don’t think it likely that we have a problem here, although as always, if people disagree, I’d love to hear from them.  More analysis over the fold.
      The key here is that the library is not here making copies, nor is it putting material online. Nor is it selling copies, letting them for hire (assuming no money is changing hands here), offering them for sale, or exhibiting them by way of trade. Nor is it authorising infringement by handing the film to teachers to shown in class: showing in class is not an infringement (because of section 28). It is not importing the items for sale either (simply importing isn’t an infringement – it has to be for sale, trade, or for distribution to an extent that prejudices the copyright owner).

      The only thing, as far as I can see, that the library might be doing here is ‘distributing copies’. According to the Australian Oxford dictionary, ‘distribute’ means give shares of; deal out; spread or disperse throughout a region; put at different points over an area; spread generally, scatter. I would have thought that this implies that distribute means a copy goes from A to B. Not that A has a copy and lends to B, then later A lends to C.

      That said, it’s not entirely clear that I’m right on that. Looking at the new proposed exceptions in the Copyright Amendment Bill, in particular, the new s111 (the time-shifting exception), the government has provided that it is illegal to ‘distribute for the purposese of trade or otherwise’ a time-shift copy – and specifically provided that, ‘for the avoidance of doubt’, ‘distribute’ does not apply to the loan of an article by the lender to a member of the household. Does this imply that in fact the government does see ‘distribute’ as including ‘loan without payment’?

      Bottom line? I’m not sure. There’s at least a risk that libraries ‘distribute’ their physical copies of works, which will become a problem under the Copyright Act when the copies are ‘infringing’ – which legitimately purchased overseas but not licensed copies of films are. My gut says that’s not distribution, but it’s just not clear cut.

      If the library is ‘distributing’, is it ‘distributing to an extent that prejudicially affects a copyright owner’? As my reader noted, if a cheaper o/s copy is being purchased overseas in preference to the local copy, that certainly could be affecting the copyright owner prejudicially (and under these provisions, the ‘prejudice’ does not have to be ‘substantial’. Although, if the copyright work hasn’t been licensed for sale in Australia, it’s hard to see much prejudice.

      If there is distribution here – by no means a cut and dried issue – there will be:

        1. copyright infringement under s102
        2. criminal liability under s 132AH and 132AI.

          Note that neither of these criminal provisions have a defence, on the Copyright Bill as currently released, covering activities by libraries, archives, educational institutions. This is another reason why perhaps the defence for libraries etc, which IS found for s132AC, should be applied more generally, to a majority of the criminal provisions.

          Bottom line? There’s some risk here, on the face of the legislation, under both the civil and criminal provisions. But as I’ve said, if anyone is aware of anything in the history or interpretation of the term ‘distribution’ that gives us a clear answer either way, do let us know.

          What do we learn from this? The government’s big problem here is its insistence on (a) maintaining parallel importation bans on films, while simultaneously saying that (b) people should be allowed to use legitimately purchased media from overseas. These two positions are inconsistent. And they lead to anomalous results, because those overseas copies are infringing copies under current law.