15.92 The Franki Committee said that governments ‘should be entitled to copy a work in the circumstances where a private individual would be entitled to copy it without obligation to the copyright owners’. The ALRC agrees that governments should not be required to pay for uses that are free to others. The statute should be clear that governments can rely on fair use, or if fair use is not enacted, the new fair dealing exception, and other specific exceptions in the Copyright Act.
15.93 It has been argued above that specific exceptions are useful in the case of high volume institutional uses that are fair or mostly fair. The exceptions recommended in this chapter are intended to facilitate open government and the functioning of the parliament, the judicial system, and the executive. However, there will be other uses that serve these same interests that are also fair. These should be considered under the fair use exception. The recommendations for specific exceptions are not intended to limit the scope of the fair use exception.
15.94 One activity that is likely to fall under the fair use exception is the digitisation of government archives. The NSW Government reports that State Records NSW is considering mass digitisation of the following material:
• letters complaining about the classification of publications;
• progress reports on land improvement sent by First World War veterans in applications for continuing financial aid under the Soldier Settlement Scheme;
• requests sent to the Colonial Secretary for items, such as canoes;
• requests to the Colonial Secretary for permission for convicts to marry;
• reports on schools, containing examples of students’ work.
15.95 To the extent that the uses listed above are not captured by the specific exceptions recommended in this chapter, these uses could be considered under the fair use exception.
15.96 Dr Judith Bannister provided another example of a use associated with open government that is not covered by the recommended specific exceptions:
In a modern democracy open access to information and government accountability does not end with the release of documents by a government agency to an individual applicant. Recent reforms to freedom of information at the Commonwealth level (and in some States) encourage proactive disclosure to the world at large on agency websites.
Open government goes beyond government use and extends to re-use by the wider public. Whether it is whistleblowers releasing documents, media reporting, community groups engaged in public campaigns, or individuals engaged in online discussions, a wide range of non-government users play an important role in ensuring government accountability and these activities should also be covered by an appropriately worded exception.
15.97 Such uses would not be covered by the recommended exception for uses under a statute requiring public access. These uses should be considered under the fair use exception.
15.98 If the fair dealing exception recommended in Chapter 6 is enacted, rather than fair use, then some of these government uses could not be held to be fair. The fair dealing exception does not include government use or public administration in the confined list of purposes. Therefore, if a government use is not for one of the other listed purposes (such as quotation), then it could not be held to be fair, under the fair dealing exception. This highlights the flexibility of the open-ended fair use exception over a confined fair dealing exception.
15.99 If fair use is not enacted, governments should have access to fair dealing exceptions in the Copyright Act. The fair dealing exceptions have the purpose of encouraging socially useful activities such as research, study, criticism, review and reporting news. These activities remain socially useful when conducted by governments and should not be burdened by a requirement to pay remuneration.
15.100 There is currently disagreement and uncertainty about whether governments can rely on fair dealing exceptions. John Gilchrist has explained that two views are possible. One construction of the statutory licence scheme in pt VII div 2 is that governments cannot rely upon fair dealing exceptions and must instead adhere to the requirements of the licence. Governments have advised that the declared collecting societies have taken this view. Gilchrist points out that the Australian Government’s 2003 agreement with Copyright Agency Ltd (as it was then known) exempted material copied for judicial proceedings and giving professional advice, but expressly excluded reliance on the other exemptions, such as research or study. Copyright Agency has indicated that it does not consider that the fair dealing exception would not apply to a use made for ‘government purposes’.
15.101 The Victorian Government said that this approach ‘puts the State at a disadvantage compared to most non-government copyright users, such as corporations and individuals, who are entitled to rely on the exceptions to infringement by not remunerating copyright owners for specified copyright acts’.
15.102 An alternative construction is that governments, like individuals and corporations, can rely on the fair dealing exceptions. In this case, the statutory licence is only relevant when government use goes beyond that permitted by the fair dealing exceptions. Gilchrist suggested that this is ‘the better view’ of the relationship between the fair dealing and the government statutory licensing provisions. This approach has wide support.
15.103 The Full Federal Court has indicated that fair dealing is to be determined by reference to the facts of each case, and that determination must take into account the effect of a statutory licence. This does not exclude governments from relying on fair dealing exceptions, but the exceptions may have a narrower scope for governments than they do for private citizens and institutions that do not have the benefit of a statutory licence.
15.104 To avoid any doubt, it should be made clear, either via an amendment or an explanatory note, that the fair dealing exceptions are available to governments.
15.105 There is similar uncertainty as to whether governments can access existing specific exceptions in the Copyright Act. The South Australian Government submission identified a number of relevant exceptions.
15.106 As with fair dealing exceptions, governments should be in the same position as private and institutional users regarding access to specific exceptions. To avoid any doubt, an amendment or explanatory note should clarify that the specific exceptions are available to governments.
Copyright Law Committee, Report on Reprographic Reproduction (1976), 7.10, cited in J Gilchrist, ‘Crown Use of Copyright Material’ (2010) Canberra Law Review 1, 7.
See The Authors Guild Inc v HathiTrust, WL 4808939 (SDNY, 2012) 12–13 where the US District Court held that the existence of specific exceptions for libraries in s 108 of the Copyright Act 1976 (US) did not preclude reliance on fair use in s 107.
NSW Government and Art Gallery of NSW, Submission 740.
See Ch 12 regarding mass digitisation.
J Bannister, Submission 715.
J Gilchrist, ‘Crown Use of Copyright Material’ (2010) Canberra Law Review 1.
NSW Government, Submission 294; DSITIA (Qld), Submission 277; State Records South Australia, Submission 255; Tasmanian Government, Submission 196.
J Gilchrist, ‘Crown Use of Copyright Material’ (2010) Canberra Law Review 1, 15.
Copyright Agency, Submission 727.
Victorian Government, Submission 282.
J Gilchrist, ‘Crown Use of Copyright Material’ (2010) Canberra Law Review 1, 7. See also E Campbell and A Monotti, ‘Immunities of Agents of Government from Liability for Infringement of Copyright’ (2002) 30 Federal Law Review 459, 464.
Copyright Agency Ltd v New South Wales (2008) 233 CLR 279,  cited in J Gilchrist, ‘Crown Use of Copyright Material’ (2010) Canberra Law Review 1, 8.
E Campbell and A Monotti, ‘Immunities of Agents of Government from Liability for Infringement of Copyright’ (2002) 30 Federal Law Review 459, 464; Victorian Government, Submission 282; DSITIA (Qld), Submission 277; State Records South Australia, Submission 255; Tasmanian Government, Submission 196; SAI Global, Submission 193.
Haines v Copyright Agency Ltd (1982) 64 FLR 185, 191.
J Gilchrist, ‘Crown Use of Copyright Material’ (2010) Canberra Law Review 1, 18.
State Records South Australia, Submission 255: Copyright Act 1968 (Cth) ss 14 (insubstantial parts), 43 (judicial proceedings or professional advice), 44 (inclusion of works in collections for use by places of education), 44B (labels for containers of chemical products), 47C (back up copy of computer programs), 47D (reproducing computer programs to make interoperable products), 49 (libraries and archives). See also DSITIA (Qld), Submission 277 which contains a more extensive list.