3.51 Many stakeholders in this Inquiry are at the forefront of cultural life in Australia, and it is clear that copyright law directly affects a broad range of cultural activity. The ALRC considers that the reform recommendations in this Report will enhance local cultural production, access to culture, and opportunities for Australian creators.
3.52 The Terms of Reference specifically refer to ‘the general interest of Australians to access, use and interact with content in the advancement of … culture’. The ALRC has been urged ‘not to think about copyright law solely or primarily in terms of trade and economic policy but to recall its central role in cultural policy’.
3.53 Following extensive feedback from organisations, community groups and individuals, a National Cultural Policy was launched on 13 March 2013. It explicitly recognises the importance of copyright law—and the ALRC Inquiry—in reform aimed at providing
incentives for investment in innovation and content in a digital environment, while balancing the need to allow the appropriate use of both Australian and international content.
3.54 The objective of the National Cultural Policy is to increase the social and economic dividend from the arts, culture and the creative industries. In this context, a number of stakeholders point to desirable reform of copyright law to allow greater digitisation and communication of works by public and cultural institutions.
3.55 Some stakeholders considered the National Cultural Policy to be mainly about the economic interests of copyright owners, and suggested that reform recommendations intended to enhance cultural activities are not in the interests of copyright owners.
3.56 The National Film and Sound Archive stated that a number of the reforms recommended by the ALRC will provide greater legislative support for cultural institutions to undertake their statutory functions and allow Australia, as a net importer of copyright, not to be overwhelmed by more dominant cultures. 
3.57 In this Inquiry, the ALRC has reviewed the various ways in which the Copyright Act provides for galleries, libraries, archives and museums—collectively, the ‘GLAM sector’. In considering reform that is beneficial for Australians in terms of accessing and interacting with culture: ‘we need to keep in mind the particular kind of cultural products we want to have access to and craft rights to support culturally meaningful forms of engagement with copyright works’.
3.58 Greater access to cultural material in a way that does not impede incentives to innovate and the capacity for a creator to be fairly rewarded is a common theme in submissions. For example, digitisation of material for library and archival purposes, for ‘non-commercial access’ during the copyright term is regarded as being of a different order to digitising collections for access on the internet.
3.59 The Australian Children’s Television Foundation expressed concern about possible loss of statutory licensing income, which is used to subsidise creation of new material. Recouping costs from the Australian audience is more difficult compared with the economies of scale for producers of screen content with larger domestic markets from which to recoup costs, predominantly the US but also the UK.
3.60 The Screen Producers Association of Australia emphasised the audiovisual trade deficit of $1.1Billion ‘of which two-thirds comes from the import of US film and television content’.
3.61 One aspect of access to cultural heritage, which has attracted a great deal of comment from Australian cultural institutions, is the extension of the term of copyright protection. Although extension of the term from 50 to 70 years has not in itself created the issues cultural institutions face in preserving and using material donated and otherwise acquired, it exacerbates them. One issue here is that the copyright term commences from first publication of a work or other subject matter. For older material this means an even more extended time before it enters the public domain.
3.62 Difficulties in clearing rights in digital material leads to skewed representation of cultural aspects and history, and creates what has been termed ‘blockbuster skew’ or ‘digital skew’:
The sense of history which comes with access to the whole, or a substantial part, of an archive, is of much greater cultural value than a small selection curated through the random prism of copyright clearance. … There is a danger that in the digital age the publicly available cultural history of broadcasting will skew: we will remain familiar with ubiquitous blockbuster programs which are available everywhere more than we will remember local Australian programs left in the archives.
3.63 The ‘cultural value’ of works with no economic value is often high but ‘copyright protects equally works of economic value as well as those of no economic value’ and there can be onerous costs of compliance with copyright law, but with no resulting benefit to any creator or owner. Perhaps this could amount to circumstances where
the policy rationale for any new exception should be based on the purpose for which content can be used without permission. This purpose should, as a matter of public interest, be more important than a content creator’s right to manage the use of their work.
3.64 Even those advocating an approach to copyright law reform based on economic evidence note that copyright exceptions and limitations applicable to the role of libraries and archives as ‘cultural custodians’ have important effects on ‘individual welfare, autonomy and freedom of expression which are harder to quantify but nonetheless critical’.
3.65 It is clear that particular protocols and considerations may apply to Indigenous cultural material, whether within copyright protection or not. Considerable work has been done on developing and implementing protocols for digitisation and use of Indigenous material. The moral rights regime introduced into the Copyright Act in 2002 has deficiencies but also possibilities in recognising the importance of cultural and religious sensitivities.
3.66 Moral rights can assist in ‘distinguishing between the two situations of the Aboriginal artist and the non-Aboriginal artist’, including around the very act of unauthorised reproduction itself. One existing exception in the Copyright Act, relating to parody and satire, may in particular set up a tension between moral rights and ‘the public interest in expressive freedom’ which is ‘a matter which would have to be worked out on a case by case basis in the courts’.
3.67 Concerns relating to Indigenous material do not centre only on outsiders using cultural material. Sometimes the issues are the reverse, where copyright can prevent access by Indigenous people to their own heritage.
3.68 The ALRC considers that the reforms recommended in this Report will enhance the capacity of cultural institutions to fulfil their mandates, will allow creators to access copyright material in an understandable and fair manner, without damaging the interests of copyright owners, and will enhance the capacity of copyright law to fulfil national cultural aims.
Members of the Intellectual Property Media and Communications Law Research Network at the Faculty of Law UTS, Submission 153.
Australian Government, Creative Australia: National Cultural Policy (2013).
Australian Government, National Cultural Policy Discussion Paper (2011), 83.
Australian War Memorial, Submission 720; National Archives of Australia, Submission 595; ADA and ALCC, Submission 213; Australian War Memorial, Submission 188.
News Corp Australia, Submission 746 ‘The policy contains 17 references to references to copyright—the vast majority of which associated with economic value, contribution to GDP, and providing incentives for investment and innovation in content’; SPAA, Submission 768; Screenrights, Submission 646.
SPAA, Submission 768; News Corp Australia, Submission 746; Arts Law Centre of Australia, Submission 706; Kultour, Submission 688; Screenrights, Submission 646; Australian Copyright Council, Submission 654.
PricewaterhouseCoopers, The Economic Contribution of Australia’s Copyright Industries 1996–97–2010–11 (2012), prepared for Australian Copyright Council, 31.
NFSA, Submission 750; Department of Broadband, Communications and the Digital Economy, Advancing Australia as a Digital Economy: Update to the National Digital Economy Strategy (2013).
K Bowrey, Submission 94.
Arts Law Centre of Australia, Submission 171.
Australian Children’s Television Foundation, Submission 724. The ACTF pointed, however, to the targeted support received from government and the ALRC notes that in terms of economic efficiency, direct subsidy is the most appropriate form of funding for valuable endeavours, such as ensuring quality Australian content.
SPAA, Submission 768. See also Australian Children’s Television Foundation, Submission 724;Australian Society of Authors, Submission 712; Price Waterhouse Coopers, Making the Intangible Tangible: The Economic Contribution of Australia’s Copyright Industries (2008), prepared for Australian Copyright Council.
See discussion in M Rimmer, Digital Copyright and the Consumer Revolution (2007) particularly Chapter 1 ‘The Dead Poets Society: The Copyright Term and the Public Domain’, 24; see also Intellectual Property and Competition Review Committee, Review of Intellectual Property Legislation under the Competition Principles Agreement (2000), 80−84.
M Rimmer, Submission 127.
National Library of Australia, Submission 218.
J Given, Submission 185;J Given, Submission 185 citing E Hudson and A Kenyon, ‘Without Walls: Copyright Law and Digital Collections in Australian Cultural Institutions’ (2007) 4(2) SCRIPT-ed 197 and S McCausland, ‘Getting Public Broadcaster Archives Online: Orphan Works and Other Copyright Challenges of Clearing Old Cultural Material for Digital Use’ (2009) 14 Media Arts Law Review 21.
S McCausland, ‘Getting Public Broadcaster Archives Online: Orphan Works and Other Copyright Challenges of Clearing Old Cultural Material for Digital Use’ (2009) 14 Media Arts Law Review 21, 24. See also Australian War Memorial, Submission 188.
Australian War Memorial, Submission 188.
Copyright Agency/Viscopy, Submission 249.
Board on Science, Technology and Economic Policy, Copyright in the Digital Era: Building Evidence for Policy (2013), 8.
ADA and ALCC, Submission 213; Arts Law Centre of Australia, Submission 171; State Library of New South Wales, Submission 168.
Arts Tasmania, Submission 150; M Nakata and others, ‘Indigenous Digital Collections: An Early Look at the Organisation and Culture Interface’ (2008) 39(4) Australian Academic and Research Libraries Journal 137. See also M Nakata and others, ‘Libraries, Indigenous Australians and a Developing Protocols Strategy for the Library and Information Sector’ in M Nakata and M Langton (ed) Australian Indigenous Knowledge and Libraries (2005).
P Loughlan, ‘The Ravages of Public Use: Aboriginal art and moral rights’ (2002) 17 Media and Arts Law Review 24.
Ibid, 25, discussing parody of work albeit before the exception for parody and satire was introduced in 2006.
Arts Tasmania, Submission 150.