Statutes requiring public access

15.44 Many statutes require government agencies to give public access to information and documents. Most of the statutes require access to material that has been created by government agencies themselves, but some concern material that has been submitted to governments, and may be subject to copyright. For the purpose of this Inquiry, the most important of these statutes are freedom of information (FOI) laws, planning and environmental protection laws and laws associated with land title registration. This section of this Report will consider these three areas in some detail. Intellectual property statutes, including the Patents Act 1990 (Cth),[58] the Trade Marks Act 1995 (Cth)[59] and the Designs Act 2003 (Cth)[60] also require documents to be made available.

15.45 The ALRC considers that, where a statute requires governments to give public access to copyright material, those uses should not be remunerated. First, because these uses are fair—they are transformative and do not affect the potential market for, or value of, the copyright material. Secondly, if the cost of copyright payments is passed on to the citizen seeking access, this would constitute a burden on public access in a context where public access is highly valued.

15.46 This exception is not intended to apply to libraries and archives. The specific needs of libraries and archives are addressed in Ch 12.

Freedom of information and open government

15.47 FOI laws are intended to promote democracy by contributing to increasing public participation in government processes, promoting better decision making, and increasing scrutiny, discussion, comment and review of the government’s activities.[61]

15.48 The ‘second generation’ of FOI laws implement the open government agenda. The Australian Government has declared that ‘it is committed to open government based on a culture of engagement, built on better access to and use of government held information, and sustained by the innovative use of technology’.[62] Open government treats government information as ‘a national resource that should be available for community access and use’.[63] Reforms associated with open government include the Freedom of Information Amendment (Reform) Act 2010 which established the Office of the Australian Information Commissioner and the Information Publication Scheme. This scheme requires agencies to publish certain information, including information released under FOI requests, on their websites.[64] At state and territory level, there are statutes requiring that information in the possession of a public authority must be provided to a person unless the information is exempt.[65]

15.49 Access to government information in the digital environment means online access, which poses some significant challenges when the information comprises, in part, copyright material that is not owned by the government.

15.50 Copyright law has a different impact on use under FOI laws for each level of government. The Freedom of Information Act 1982 (Cth) (FOI Act) provides immunity from proceedings for copyright infringement to Australian Government agencies and officers who give access to a document as required by the FOI Act.[66] In 2010, this immunity was extended to cover the publication on a website of information released to an FOI applicant.[67]

15.51 The immunity in the FOI Act only applies to the acts of federal government agencies subject to the FOI Act. For state and territories, providing immunity from copyright infringement for government officials may not be possible. It is arguable that such a state or territory statutory provision would be inconsistent with the Copyright Act, and would, to the extent of the inconsistency, be invalid.[68]

15.52 If a state or territory government uses copyright material in compliance with FOI laws, this use is covered by the statutory licence.[69] The situation regarding remuneration for these uses at state and territory level is unclear. Copyright Agency/Viscopy has indicated that remuneration for disclosure under FOI laws is a matter for negotiation[70] and that it does not seek payment for material provided in response to an FOI request.[71] Both the Victorian and NSW governments raised concerns about the risk of being required to pay remuneration for material used as required by FOI laws.[72] As noted earlier, current arrangements between governments and the Copyright Agency require payment per employee, and do not specify which uses are remunerable.

15.53 Local governments are subject to state and territory FOI laws, and they are not covered by the statutory licence in the Copyright Act. The effect is that they risk copyright infringement when using copyright material in a way that is required by an FOI law.[73] It has been necessary to make special provision in FOI laws so that, if access to a document in the form requested would breach copyright, then access in that form may be refused and access given in another form.[74] The only form of access that does not breach copyright is making the document available for inspection,[75] which is an inadequate approach in the digital age.

15.54 Limits on laws requiring governments to make information available proactively have also been enacted—for example, the Government Information (Public Access) Act 2009 (NSW) (GIPA Act) was amendedto provide that an agency is not required to make ‘open access information’ available if this would infringe copyright.[76] This approach gives blanket and inflexible protection for copyright material, and does not further the aim of open government. The NSW Information and Privacy Commission (NSW) stated that the risk of infringing copyright ‘undercuts the transparency and effectiveness of the GIPA Act by limiting councils’ ability to provide public access to documents that inform the basis of their decisions’.[77]

Planning and environmental protection laws

15.55 Planning and environmental protection laws often require a person to provide documents to a government agency, and require the agency to provide public access to the documents. For example, the proponent of a development is usually required to submit a development application, which may include surveys, architects’ plans and environmental impact statements.[78] The proponent pays the various professionals commercial rates for their work. The purpose of the laws is to facilitate public participation in planning processes,[79] with the expectation that this will improve decision making.

15.56 Providing public access to a development application, including the copyright material contained within it, raises similar issues to disclosure under FOI laws. Commonwealth statutes requiring public access to documents can create immunity for Australian Government agencies. However, state and territory governments cannot take advantage of immunity and may be liable for payment under the statutory licence. Local governments have no immunity and no statutory licence, and risk copyright infringement when providing public access to documents.[80]

Land title registration

15.57 The use of survey plans as required by the Torrens System of title registration has been the subject of lengthy litigation between Copyright Agency and the NSW Government. NSW laws provide that transactions relating to land cannot be registered unless a current plan has been registered.[81] Upon registration, the Registrar-General must make copies of plans available to the public.[82] The Land and Property Information division of the NSW Government (LPI) makes the plans available through its online shop and also through information brokers, upon payment of fees.[83]

15.58 In 2003, Copyright Agency Ltd applied to the Copyright Tribunal for orders requiring the NSW Government to pay equitable remuneration for copying and communicating survey plans to the public.[84] The proceedings were transferred to the Federal Court which found that surveyors who submit plans for registration retain their ownership of copyright, but there is an implied licence for the State to do everything that the State is obliged to do with the plans.[85] On appeal, the High Court held that it is not necessary to imply a licence, because the statutory licence makes provision for the State to use the survey plans.[86] The matter has been returned to the Copyright Tribunal to calculate equitable remuneration, and the Tribunal recently noted that, ‘the parties remained, as they have on almost all matters for over a decade, in strident, if polite, disagreement’.[87]

15.59 The High Court decision is directly relevant to the use of surveys in all Australian jurisdictions, and may also be relevant to the use of other copyright material deposited with government and used under statutory obligations, such as environmental impact statements and building plans.

15.60 The ALRC asked if there should be an exception in the Copyright Act to allow certain public uses of copyright material deposited or registered in accordance with statutory obligations under Commonwealth or state law.[88] The Spatial Industries Business Association (SIBA), a peak industry organisation for surveyors, vigorously objected to such an exception,[89] as did 99 surveyors who responded by supporting the current copyright regime. These submissions emphasised the high level of skills, training and education possessed by surveyors, and the high level of technical expertise and professional judgement that is required to prepare a survey plan. Many of these submissions noted that ‘similar considerations apply to the creation of other documents, such as environmental plans; design plans and as constructed plans, that are registered or deposited with governments under statutory obligations’. The surveyors also noted that the survey plans were being provided to the public for a fee, and that it is ‘fair and equitable’ for the creator of the content to receive a payment for this use.[90]

15.61 On the other hand, government stakeholders argued that an exception, similar to the exceptions in the United Kingdom and New Zealand, would be appropriate.[91] They considered that where statutes require copyright material to be made available to the public, these uses should not be remunerable.[92]

Uses under a statute requiring public access are fair

15.62 As noted earlier, the ALRC considers that high volume institutional uses that are all, or nearly all, fair, are best dealt with by way of a specific exception.[93]

15.63 The first fairness factor is the purpose and character of the use. Uses under statutes requiring public access are normally for the purpose of informing the public about government activities, to encourage public participation and scrutiny. These uses have high public interest value and embody ‘the general interest of Australians to access, use and interact with content’.[94] They are not usually commercial. They are also transformative, in that the purpose of the use—informing the public—is not the same as the purpose of the creator. The purpose of the creator is usually to obtain a governmental action or approval, rather than to encourage public participation.

15.64 The second fairness factor is the nature of the copyright material. The material released to the public includes surveys, architects plans, environmental impact statements, letters, reports and requests. This material is nearly always factual. Disseminating factual material creates important public benefits and is more likely to be fair than using creative material.[95]

15.65 The third fairness factor is the amount and substantiality of the material used. Statutes usually require use of the entire work, which means the use is less likely to be fair, but this is not conclusive.

15.66 The fourth factor requires consideration of the effect of the use upon the potential market for, or value of, the copyright material. Copyright material used under statute usually has no real market, as it has been created for the purpose of an interaction with government, rather than for a commercial purpose.

15.67 The ALRC concludes that uses under statutes requiring public access are nearly always fair, and serve important public purposes, such as allowing citizens to scrutinise and contribute to government decision making. It is therefore suitable to have an exception in the Copyright Act.

Recommendation 15–4 The Copyright Act should provide for a new exception for uses where statutes require local, state or Commonwealth governments to provide public access to copyright material.

Fairness, surveys and land title registration

15.68 Particular attention to the use of surveys for land title registration is needed, because of the long standing controversy. The comments above regarding the second, third and fourth factors are relevant to the use of surveys. However, the purpose and character of the use deserves further scrutiny. SIBA and some surveyors described the purpose of the government use of surveys as commercial:

We do not want to stop governments using surveyors’ plans, and we are not seeking payment for every use of such plans by governments, but we think it is fair that surveyors receive a royalty when the government sells the plans on a commercial basis.[96]

15.69 The Copyright Tribunal found that the provision of surveys by the LPI is ‘a commercial activity’, because the fees were based on direct cost recovery plus 12%.[97] Government agencies are required to recover the cost of services when it is efficient to do so (and does not conflict with government policy objectives).[98] The added 12% is intended to place the LPI in a position of competitive neutrality with private providers of surveys, as is required by the Competition Principles Agreement between the Australian Commonwealth, state and territory governments.[99]

15.70 The characterisation of the use of surveys as having a commercial aspect is significant, as commercial uses are less likely to be fair. This commercial aspect coexists with the non-commercial purpose of making information available to the public, and with the ultimate objective of facilitating certainty of title to land.

15.71 When considering the fairness of government use of surveys, it is relevant that the surveyor has already been remunerated by the client for the in-house cost of each plan.[100] Further remuneration by way of royalties is unpredictable. The amount paid depends on the number of activities relating to a parcel of land and those adjacent to it, and is unrelated to the skill and expertise of the surveyor, or the quality of the survey. Demand is largely driven by the condition of the property market.[101] Royalties are not an incentive for the creation of surveys.

15.72 The ALRC acknowledges the submission of Copyright Agency on behalf of its member surveyors, that ‘the objectives of the copyright system are reward for the benefits to the community from creative work, and an environment that encourages creative endeavour’.[102] The ALRC view of the objectives of the copyright system is encapsulated by the Inquiry’s framing principles, discussed in Chapter 2. While creators should be acknowledged and respected (Principle 1), and incentives for the creation of works should be maintained (Principle 2), rewards should not necessarily flow when those rewards do not maintain incentives for the creation of works.

15.73 The Copyright Tribunal has noted that the payment of royalties for uses associated with land title registration will not result in benefits to surveyors.

[Copyright Agency] submitted that the State fully recovered its costs … On the other hand, the State submitted, on the basis of economic evidence, that any remuneration provided to the surveyors for the copyright would be competed away between them. In principle, the Tribunal accepts both of these submissions although neither throws much light on the appropriate remuneration to be set. The submissions do underscore, however, the futility of this litigation. Whatever the Tribunal awards will have little impact on the parties. Economically, it will result in an improvement in the position of the consumers of the services of surveyors … at the expense of the consumers of registered survey plans …

The Australian Taxation Office will also incidentally benefit through the additional income tax payable by surveyors, as will [Copyright Agency] on the commission it charges for the collection of the remuneration. So viewed, this litigation appears to offer little benefit to those whose interests are said to be at stake.[103]

15.74 Having weighed the matters outlined above, the ALRC considers that the copying and communicating of surveys to the public, for the purposes of the land titles registration system, is fair. This activity has a mixed commercial and public interest nature. It disseminates factual material. There is no real market for the surveys—there is an artificial market created by the statute that requires the LPI to provide access to the surveys, but a surveyor could not resell a survey created for a particular client. The LPI use does not affect the potential market for, or value of, the copyright material. These uses should, therefore, be made in reliance on an exception for uses where statutes require public access. Surveyors would continue to own copyright in their surveys, and could continue to assert their exclusive rights to control uses other than those required by statute.

Material that is commercially available

15.75 The recommendation that the Copyright Act should contain an exception for uses where a statute requires public access is based, in part, on the evidence that most of the copyright material used under statute is not commercially available and has no real market. Stakeholders to this Inquiry have proposed that an exception for uses required by statute should not be available where the material is commercially available.[104] The ALRC considers that such a limitation should not be contained in the Copyright Act, but may be appropriately included in a statute requiring a government to provide public access.

15.76 In the UK, material that is open to public inspection pursuant to a statutory requirement may be copied for the purpose of facilitating inspection of the material.[105] There is a draft amendment being circulated at the time of writing that would both extend this exception to making material available online, but limit the exception to material that is not commercially available.[106] In New Zealand, an exception for material open to public inspection pursuant to a statutory requirement does not include any limitation regarding commercial availability.

15.77 It may sometimes be appropriate to make commercially available material open to public inspection, with appropriate safeguards. In the US, photocopies of patent applications, including copyrighted work, are made available to the public for a fee, and this is considered fair use. However, the US Patent Office has chosen not to make this material available online because of fears of further exploitation.[107] CSIRO advises that the European Patents Office makes material available for viewing only.[108] IP Australia has proposed that the proper functioning of patent laws requires the release of non-patent literature (extracts, and sometimes the whole, of journal articles, books and other copyright material) to the public.[109]

15.78 On the other hand, some public registers function well without the need to include commercially available material. It might not be necessary, for example, to release commercially available material under an FOI law. The Office of the Australian Information Commissioner (OAIC) raised concerns that some publication of material under the FOI Act could have an undesirable impact on the copyright owner’s revenue or market. The OAIC indicated that it is considering whether to make a determination that information should not be published under the Information Publication Scheme ‘in circumstances where publication on a website would be unreasonable, such as if the document is an artistic work or publication would clearly impact on the copyright owner’s revenue or market’.[110]

15.79 The ALRC considers that this question is best dealt with by Parliament when it legislates to require governments to provide public access to material. Parliament may consider that it is in the public interest to place commercially available material on public registers for some purposes, such as patent law, but not others, such as FOI law. Different restrictions on copying, communication and use may be necessary. This should be dealt with on a case by case basis in the statute creating the obligation to release the material.