15.83 Local government is not covered by the statutory licence in pt VII div 2 of the Copyright Act. Councils may use copyright material under direct licence, and may also be able to rely on implied licenses, and on other exceptions in the Copyright Act. Some councils hold voluntary licences from collecting societies for music.
15.84 As noted earlier, copyright concerns have inhibited local councils from making material available as required by FOI laws and planning and environmental laws. The Information and Privacy Commission NSW has advised councils not to publish any copyright material on websites without the consent of owners and to provide ‘view only’ access to plans in development applications. Some councils do make information available, taking a risk management approach. Others do not allow copying, even when it is clearly in the public interest (such as to allow inspection of development applications other than on council premises) . A voluntary licence for copying works is available to local councils, but only about 15 of more than 500 councils have taken up this option. The voluntary licence does not allow material to be placed online.
15.85 The ALRC asked if the statutory licence should be extended to local government. Representatives of rights holders were divided, with some considering such a move would ‘enable more comprehensive use of material by local governments on fair terms’, while others considered that there was no justification for such an extension. SAI Global, a publisher of Australian Standards, was particularly concerned about the prospect of councils being able to communicate the whole of a work and the potential for under-reporting and infringement.
15.86 The NSW Government submitted that councils need specific exceptions for certain public interest uses.
15.87 In the ALRC’s view, specific exceptions are necessary for local government. Councils play an important role in planning, development and environmental management. Public consultation and scrutiny of local government operations are essential, but are hindered by current copyright arrangements. The new exceptions recommended in this chapter (use for public inquiries, uses where a statute requires public access, and use of material sent to the Crown in the course of public business) are defined by the purpose of the use, and would be available to councils.
The High Court in Copyright Agency Ltd v New South Wales (2008) 233 CLR 279 said there was no implied licence from surveyors to the NSW government, but was influenced by the existence of a statutory licence. The situation may be different for local governments, which cannot use the statutory licence.
APRA/AMCOS, Submission 247; PPCA, Submission 240.
Information and Privacy Commission NSW, Submission 209.
T Proust, Submission 264; K Bowrey, Submission 94.
Copyright Agency, Submission 727.
Australian Law Reform Commission, Copyright and the Digital Economy, IP 42 (2012) 57.
Copyright Agency/Viscopy, Submission 249. See also SPAA, Submission 281; Australian Copyright Council, Submission 219; Screenrights, Submission 215; ABC, Submission 210.
APRA/AMCOS, Submission 247; ARIA, Submission 241; PPCA, Submission 240.
SAI Global, Submission 193.
NSW Government and Art Gallery of NSW, Submission 740.