I Digitisation and Libraries
Digitisation
is the process of converting information from an analogue format into a digital
format. “Digitisation
is an example of a supply-chain activity – one which
generates an output (a product) based on a managed input (raw materials) which
is distributed and transacted with an end-user.”[1] Digital
images are electronic snapshots taken of a scene or scanned from documents,
such as pictures, books, printed texts, and artwork. The digital image is sampled
and mapped by pixels, which are a grid of dots or picture elements. Every pixel
has a tonal value represented in a binary code. The binary digits are then
interpreted and read by the computer to produce an analogue version for display
or printing.[2]
Text,
images and audio can be digitised. A scanner is able to capture an image and
convert it to an image file. Then to identify each alphabetic letter or numeric
digit and convert each character into an ASCII code, it is necessary to use an
optical character recognition (OCR) program which analyses a text image for
light and dark areas. During the analogue-to-digital conversion process, a
continuously variable signal is changed into a multi-level signal without
altering the essential content. OCR
allows for a library user to search a database with keywords just like any
online article. The process of
converting materials into searchable documents on a computer can be
tedious. In the past, the only options for
digitisation were expensive and
time-consuming, such as having works double-typed and then married to erase
inaccuracies. Now, OCR technology allows works to be converted to their computerised
equivalents while retaining the look of the text itself as well as allowing for
recognition of the individual letters and words. The ANU currently only has one work that has
been successfully digitised to be accessible using OCR, though it is
currently unavailable.[3]
A Issues Regarding Digitisation
The
increasingly digital environment is changing the way in which libraries fulfil
their aim to preserve and provide access to knowledge for the public. There are
growing expectations for libraries in the 21st Century to provide
access to knowledge and works held in their collections in digital formats via
online databases, websites, and online repositories.[4] Due
to the digitisation of cultural heritage institutions’ collections, information
previously only available to a select group of people becomes accessible to the
broader public. An original historical
document may only be accessible to people who visit its physical location, but
if the document content is digitised, it can be made available to people
worldwide. There is a growing trend towards digitisation of historically and
culturally significant data.
The nature
of the digital environment on the one hand and the purposes of the copyright
legislation on the other hand have led to some tensions. These tensions arise
because of different attitudes towards digitisation between users and authors.
Users consider digitisation as an advantage for the public to gain access to
knowledge and works. However, authors consider digistisation to be a loss of
control as to how works may be used, and thereby creating a disadvantage for
the owner, who suffers economic loss from the unauthorised use of their works.
B Digitisation and Australian Copyright Law
Digitisation
of a work in digital format is a reproduction of a work, and will constitutes copyright infringement unless it
falls under an exception.[5] Three
requirements must be satisfied in order for a work to be protected by
copyright: The work must be original, and a form of expression, in
a material form.
In March
2001, the Copyright Amendment (Digital Agenda) Act 2000 (‘Digital
Agenda Act’) came into effect and amended the Copyright Act 1968.
The Digital Agenda Act expanded copyright owners’ rights in several
ways. For example, it confirmed that converting a work into, or from, a digital
form, reproduces the work and infringes the Copyright Act. This means that
copyright owners of analogue works have the rights to the first digitisation of
the work.
In relation
to literary works, once a work is
protected by copyright, the owner of that copyright has the exclusive right to:
o
Reproduce
the work in a material form;
o
Publish
the work;
o
Perform
the work in public;
o
Communicate
the work to the public or;
o
Make
an adaption of the work.
Digitisation
and communication of a copyrighted work or a substantial part of a copyrighted
work is therefore a copyright infringement of the work. Thus, libraries cannot
digitise copyrighted works unless they rely on a licence, assignment or a
statutory exception to use the work.
Currently, Australian
libraries are undergoing an extensive digitisation process. By 30 June 2011,
a total of 174,250 collection items had been digitised at the Australian
National Library. This number is growing as more works are added to the
libraries online digital collection.
The barrier
to digitisation for libraries lies in the costs of clearing rights and the
negotiation of individual licences. Despite these costs, libraries are persevering
with the digitisation of works in order to meet the new challenges and expectations of
the role of libraries in the 21st century.
C Disadvantages of Digitisation
1 Copyright Problems
The process
of digitisation creates substantial
challenges for libraries, including the
potential for creation and dissemination of digital works by libraries users in
a manner which infringes the copyright of the works. Not only does digitisation allow almost any
text, sound or vision to be digitally reproduced, but the technology is
commonplace. It puts in users’ hands the capacity to make and disseminate
multiple and perfect reproductions of works.[6] ‘The
existence of widespread, large-scale infringement may severely impact upon
commercialisation activities and the potential market for a copyright owner’s
work’.[7] If
one legal reproduction is accessed or made under a statutory provision, it is
relatively easy to make more unauthorised reproductions
without permission from the copyright owner.
2 Cost and Time
The second negative implication is the cost of the
project. The cost includes paying the
wages and salaries of the staff tasked with operating the equipment to carry
out the digitisation, the equipment itself, the contracts entered into with
outsourced companies, and the costs involved with the ongoing preservation of
the original work. Furthermore, the process of digitisation using OCR is an
extremely time consuming process, with the most advanced machines operating to
scan pages at a rate of 2.5 pages per hour. [8]
D Advantages by Digitisation
1 Easy access for the public
One of the
major goals for libraries is easy access to the library collection for the
public. Thus, the libraries consider digitisation to be positive because ‘digitisation offers avenues for
better preservation and wider dissemination of works, in less costly ways than
previously possible’.[9] A broader
access not only refers to the number of people who have access to the
information, but also to the ability of
users to search collections rapidly from anywhere at any time. Viewers can find
the information they are searching for quickly and independently from the
libraries. The material found by the user can also be printed directly from the
web. Internet access is extremely
widespread in modern society, and therefore digitisation of works constitutes a
significantly easier way to access knowledge which has been put online. Furthermore, content
that is accessible online is easy and comfortable for the user to read,
especially for larger works on computers, laptops, tablets and special programs
for e-books. There are many examples of
this new type of digital project, including the Making of America website and the Library
of Congress’s American Memory page, where the user is able to listen to online
recordings of Thomas Edison.[10]
2 Benefit the Owner
Digitisation
can also benefit copyright owners by
increasing the accessibility of their works. For example, out-of-print works are
now accessible online where they may have been extremely rare and difficult to
source before digitalisation.
Moreover,
the improved access may lead to a
greater interest in the work, and with a greater interest, the owner can generate more
income from libraries’ licences to the
specific work. ‘Legally,
cultural institutions must obtain the consent of copyright owners for many acts
of digitisation, through negotiating licensing arrangements. Practically, this
appears to place greater power in the hands of copyright owners to dictate the
circumstances in which digitisation and communication take place’.[11]
3 Out-of-copyright
The
copyright protection expires a certain number of years after the death of the
owner depending on the type of the work. When the copyright expires, third parties are free to use the work as they will. For example in 2007 the National
Library of Australia, in collaboration with state and territory libraries,
embarked on its first mass digitisation project, the Australian Newspapers
Digitisation Program. The program digitised out-of-copyright newspapers and was
estimated to comprise 40 million news stories.[12]
4 Preservation
Some objects, such as manuscripts or ancient books and
paintings, if handled frequently or improperly, can be easily damaged. The risk
of such damage can easily be reduced by
making high-quality digital images of the work which are available
electronically instead. Digital material doesn’t need to be reshelved or
located by the staff of the institution, as everything is located in soft copy
format on the web. Digital copies are not a replacement of the original copy
because digital copies are not permanent.
In fact, it is necessary to periodically transfer them to new formats. Digitalisation
can preserve works where the works have fragile peripheral parts, such as
frames and binding.[13]
E Libraries exceptions
The Copyright Act 1968 does not contain a specific exception that cover digitisation
at libraries or other mass digitisations for the purposes of providing
increased public access to works.
However,
there are a number of exceptions that allow libraries to digitise collection
items for defined purposes, such as:
o
responding
to user requests or requests by other libraries for copies of published works
for the purposes of research and study;
o
certain
reproductions, when made by or on behalf of researchers;
o
administrative
purposes;
o
the
preservation of manuscripts, artistic works, sound recordings; and
o
replacing
a published item that is not commercially available.[14]
The issue
in question then is how these rules are to be interpreted. For example,
infringement of copyright is justified in the case of digitisation of books,
pursuant to s 49 of the Copyright Act,
which provides for ‘responding to user requests or
requests by other libraries for copies of published works for the purposes of
research and study’.[15] There
is no doubt that library users gradually request and expect access to knowledge
online. However, because the Copyright
Act came into effect in 1968, the
provisions have not contemplated the possibilities of library
digitisation.
One
argument is that the digital environment is so different from the analogue one
that copyright owners’ rights should be expanded, and statutory exceptions and
limitations, which traditionally exist in copyright legislation, should be more
limited in their application. ‘One reason this strengthening is seen as
necessary is to remove a great obstacle to electronic dissemination of works: a
heightened fear of infringement’.[16] The digital environment makes it easy to reproduce
works, especially because the electronic products are well-known by the users. Thus, this argument suggests that copyright exceptions
that have existed for analogue use should be restricted for the purposes of
digital use.
On the
contrary, it can also be argued that
digital communications do not require a restriction of the statutory
exceptions. A restricted interpretation of the copyright exceptions leads to
increased powers of control for copyright owners that may be used to suffocate
the access to knowledge or ‘lead to a “pay-per-use” economy in digital
information’.[17]
Therefore, there are arguments for and against
a restricted interpretation of the copyright exceptions. However, because they
have not been subject to any cases, the
exact legal standpoint is not yet clear .
F Is a reform of the Australian Copyright Act Necessary?
A stated aim of the Copyright
Amendment (Digital Agenda) Act 2000 was to ‘ensure that cultural and
educational institutions can access, and promote access to, copyright material
in the online environment on reasonable terms.’[18] In
light of this aim, it can be considered that reform of Australian copyright law
is necessary due to the fact that the current Copyright Act does not
contain any exceptions for the use of digital content by libraries.
The balance
between copyright owners’ rights and the public interest in access to copyright
material is a key issue in digitisation, and as outlined above, there are many views on digitisation in
the context of copyrights.
The
Australian Law Reform Commission does not suggest a particular method for reform of the Copyright Act, but
welcomes comments on whether specific exceptions or broader exceptions are the
most effective in a digital environment.
The importance of digitisation will certainly increase
in the coming decades. Institutions should concentrate more on planning the goals of a project than the technological aspects. Accordingly,
goals must be determined at first, so that institutions should focus their attention on
which technologies are the most useful in
achieving that goal. Thus, setting the
goals and objectives of the project is fundamental. The goal should be well
defined and specific. The mains issues to be determined are the types of users that
will be using the resources, why the
users should look for this particular material, how the website will be used
and the quantity of people who will use it, and last but not least, how the
digitised material will benefit the users and the institution.
II Approaches to Digitisation at
the ANU Libraries
Much of the information from this
section comes from interviews with ANU library staff in Menzies and Chifley
Libraries and Ms Roxanne Missingham, ANU's Chief Scholarly Information Officer,
to whom the ANU Digitisation Committee will report.[19]
A Statutory Background
The Copyright Act 1968 (Cth),
in s 200AB, says that the usage (in the case of a library, loaning and
dissemination) of a work does not breach copyright where each of the conditions
of subs (1) are met, those being:
(a) the circumstances
of the use ... amount to a special case;
(b) the use is covered by subsection
(2), (3), or (4);
(c) the use does not conflict with a normal exploitation of the work or
other subject-matter;
(d) the use does not unreasonably prejudice the legitimate interests of the
owner of the copyright.
(c) the use does not conflict with a normal exploitation of the work or
other subject-matter;
(d) the use does not unreasonably prejudice the legitimate interests of the
owner of the copyright.
The relevant subsection as
described under (b) is (3), which refers to educational institutions, under
which the ANU libraries fit.
There is a “fair dealing” provision
of the Copyright Act in s 40, which relevantly reads:
(1A)
A fair dealing with a literary work … does not constitute an infringement of
the copyright in the work if it is for the purpose of, or associated with, an
approved course of study or research by
an enrolled external student of an educational institution.
The ANU, in digitising its
resources, intends to rely extensively on s 200AB. A newer section in the Copyright Act,
it has been subjected to far less judicial scrutiny, so its usefulness to
libraries is hitherto uncertain.
B Representation
ANU is a member of Universities
Australia, the peak industry body representing 37 universities in Australia who
pay an annual fee of nearly $24 million to CAL for the use of copyright
materials in campus libraries.
Universities Australia has been given the option of making a submission
to the Australian Law Reform Commission about improving copyright laws so as to
promote efficient digitisation while retaining the rights of authors.
C How ANU Digitises
The few materials at ANU that have
been digitised have been done by contracting out or with the resources the ANU
itself owns, although these are limited, and equipment with OCR capabilities is
even more so. The university is host to
the National Centre of Biography and owns one Guardian scanner, which is a flat
imaging machine. The process of
digitisation is extremely slow and one machine is not an efficient or effective
way to digitise the vast resources of the university.[20] ANU often contracts out for digitisation and
this is its intention for the future.
For example, one company that digitises documents and books is Document
Imaging Services in Braddon. Menzies has
used this company in the past, and they have cradle imaging capabilities, which
allow for books to remain only partially open when being scanned as opposed to
entirely flat, which can warp or ruin the spines of the originals.
D Relevant Categories of Sources for Ongoing Digitisation
ANU has been hesitant to be a
forerunner digitising its library resources because of the lack of clarity in
the Copyright Act as it currently stands. Especially with the operation of s 200AB
being so uncertain, the university is unwilling to exert too many resources on
mass digitisation. But despite these
difficulties and uncertainties and copyright law restricting which materials
can be distributed by libraries digitally, there are realistically three
categories of resources that can be digitised without complex legal problems:
1 Materials Whose Copyright Holders Are Easily Contactable
These are the rarest category, but
will often require some form of payment to the copyright owner.
2 Old Materials with Expired Copyright
Due to lapse in time (75 years from
the death of the author or creator of the work), copyright ceases and the ANU
can reproduce the work digitally.
3 ANU Theses
Starting from January this year,
students writing theses at ANU will be required to submit their final work for
publication by the university to be made available. There is provision for delay of publication
where the writer intends to publish material outside the university on the subject.
[1] Collections Trust, Comité des Sages of the European Commission, The Cost of Digitising Europe's Cultural Heritage (2010), 11.
[2]
Moving Theory into Practice,
Cornell University Library, <http://www.library.cornell.edu/preservation/tutorial/intro/intro-01.html>.
[3] Some Notes on Java and its Administration by the
Dutch, ANU Library <http://anulib.anu.edu.au/subjects/ap/digilib/indo/java/>.
[4] Australian
Law Reform Commission, Copyright and the
Digital Economy (IP42) (2012) <http://www.alrc.gov.au/publications/issues-paper/libraries-archives-and-digitisation>.
[6] E Husdon and A Kenyon, ‘Digital Access: The Impact of Copyright on Digitisation Practices in Australia Museums, Galleries, Libraries and Archives’ (2007) 30(1) UNSW Law Journal 12 (, ‘Digital Access: The Impact of Copyright on Digitisation Practices in Australia Museums, Galleries, Libraries and Archives’).
[8] Document Imaging Services, ScanRobot 2.0 MDS (20 September 2012) Document Imaging Services <http://www.docimaging.com.au/equipment/?product=ScanRobot2.0MDS>.
[9] Australian Law Reform Commission, Copyright and the Digital Economy (IP42) (2012) <http://www.alrc.gov.au/publications/issues-paper/libraries-archives-and-digitisation>.
[10]Trevor Jones, An Introduction to Digital Protjects for Libraries, Museums and Archives (May 2001) University of Illinois <http://images.library.uiuc.edu/resources/introduction.htm>.
[12] National Library of Australia, Australian Newspapers Digitisation Program <www.nla.gov.au/ndp/>.
[13] Trevor Jones, An Introduction to Digital Protjects for Libraries, Museums and Archives (May 2001) University of Illinois <http://images.library.uiuc.edu/resources/introduction.htm>.
[18] ‘Digital Access: The Impact of Copyright on Digitisation Practices in Australia Museums, Galleries, Libraries and Archives’.
[19] Special committee comprised of three library staff from different academic areas tasked with assessing the viability of digitising ANU's library collection.
[20] Document Imaging Services, ScanRobot 2.0 MDS (20 September 2012) Document Imaging Services <http://www.docimaging.com.au/equipment/?product=ScanRobot2.0MDS>.
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