Principle 3: Promoting fair access to content

2.41 The Terms of Reference refer to the ‘general interest of Australians to access, use and interact with content in the advancement of education, research and culture’. The principles of access, use and interaction with content are to be considered on the basis that this is done in a manner which is fair to copyright creators and owners, and intermediaries controlling the rights.

2.42 There are important economic and social benefits in promoting access to information. Stakeholders articulated different aspects of the public interest including: advancing education and research;^[51] developing and supporting culture; public participation in decision making;^[52] and promoting a transparent and accountable democracy.^[53]

According to review after report after second reading speech, Australian copyright law exists to serve the public interest in both the creation and the dissemination of new works of knowledge and culture.^[54]

2.43 A fundamental value in Australia is freedom of expression^[55] and this is inherent in any principle concerning dissemination of information.^[56] Furthermore, it is essential to recognise that ‘the digital economy is not measured purely by financial indicators, but also that cultural benefits play a significant part in the digital economy’.^[57] A wide variety of content and platforms for delivering content ‘services our pluralistic society and allows for the ability for niche groups to express themselves through media and consumer media’.^[58]

2.44 A number of stakeholders pointed out that availability of content is vitally important to creation^[59] of new copyright material:

To fulfil its public policy role, copyright needs to be consistent with, and promote, relevant individual rights, in particular the right to freedom of expression, as well as the public interest in ensuring the importance of education and research, and in safeguarding the functioning of public institutions which promote preservation of and public access to knowledge and culture, such as libraries, museums, galleries and archives … Creation depends on access to existing cultural material, education, and freedom to express ourselves creatively.^[60]

2.45 Some stakeholders refer to a concept of ‘users rights’, the view being that these are in fact ‘a central aspect of copyright’.^[61] In economic terms, ‘the exclusive rights that copyright law grants to encourage creativity can impose costs in terms of reduced access and cumulative creativity. The exceptions and limitations to copyright can be understood as attempts to contain these costs and maintain an overall balance in copyright policy’.^[62]

2.46 In line with the principle of fair access to material, one submission urged as a leading principle that copyright law should ‘focus on the end-userand their ability to access copyright material and not be used to unreasonably restrict the ability of end-users to view or use material that they otherwise have a legitimate right to view or use’.^[63]

2.47 However, allowing access on terms decided by the content owner is also considered fundamental by many stakeholders, even in circumstances ‘which may not be wide’ and to some may not appear ‘fair’ or ‘free’.^[64]

2.48 In this Inquiry the ALRC has been made aware of the introduction of many innovative services and licensing solutions to making content available to consumers. The music industry in particular ‘has responded to the developing market and related services with innovative licensing models that have resulted in increased access to music for consumers’.^[65] APRA/AMCOS pointed to the dozen or so digital music services which have been launched in Australia almost contemporaneously with, or even ahead of overseas launch, since 2010.^[66]

2.49 Innovation in the licensed delivery of content has also occurred in the games^[67] and film^[68] industries, and under statutory licensing for educational use.^[69] The fear that market-based solutions to providing access will be undermined by fair use is discussed below in this Report.^[70]

2.50 Inherent in the notion of ‘fair access’ is providing appropriate remuneration to copyright owners^[71] and attribution and other ‘key social norms’ need to be observed.^[72] The National Archives of Australia submitted that:

in addressing fairness, it is relevant to consider that much copyright material held in archives, and especially in government archives, could be disseminated widely to the great benefit of the community and with no real harm to the commercial interests of the copyright owners.^[73]

2.51 A variety of views is evident in determining the basis of appropriate remuneration. Understandably, rights owners organisations, on behalf of their constituents, argued for remuneration attaching to whatever is determined to be within the copyright owner’s exclusive rights. This raises questions about who should bear the cost of equitable remuneration: ‘should the cost be borne by the user, or, in effect, the content creator’.^[74]

2.52 A key issue in this Inquiry is whether unremunerated use exceptions should apply ‘if there is a licensing solution’ applicable to the user. On one view, ‘in principle, no exception should allow a use that a user can make under a licensing solution available to them’.^[75] This approach assumes that the content creator is inevitably de-incentivised by not being paid, and that there is no middle ground between ‘someone paying for it’, either the creator or the user. This is a different question from ‘what should be paid for, and what should not,’ which is ‘at the heart of all this’.^[76]

2.53 In this Report the ALRC considers the interests of Australians in availability of content in the digital environment and makes recommendations designed to achieve fair access to copyright material, taking into account social and economic benefits for all stakeholders.