3.69 Questions about the benefits of statutory licensing are explicitly raised by the Terms of Reference. Australia’s statutory licensing schemes for education, government and persons with disabilities were established to facilitate access to copyright material in circumstances where market failure would otherwise occur.
3.70 The benefits and detriments of the current system are heavily contested as between licensees and licensors. The TAFE sector submitted that statutory licensing for TAFE is not economically efficient or streamlined, and does not provide easy access to copyright material. Other educational licensees have been more blunt, suggesting that ‘Australia’s statutory licences are unsuitable for a digital age and must be repealed’.
3.71 The ACCC considered that relevant factors in reviewing statutory licences include the transaction costs associated with the licences—said to be considerable by education and government stakeholders—and the potential for the extent and use of the rights conferred by copyright to restrict competition and create market power.
3.72 Some stakeholders submitted that there are ways in which the statutory licensing system could work better, both in terms of the legislative framework and the way the rights are managed in practice.
3.73 The Australian Society of Authors, while stating that pt VB of the Copyright Act ‘works well for educational institutions and creators’ also noted that ‘there could be more transparency in the process—particularly how much money is paid to which publishers and authors’. The Society also submitted that:
The central reasons for some statutory licence schemes should be revisited and reassessed … these schemes are paying massive amounts of money to foreign publishers of educational materials, with only a small amount trickling to Australian creators. This goes against the original intent.
3.74 The Australian Writers’ Guild pointed to the inflexibility of audiovisual statutory licensing and some ‘conflation’ of rights streams and lack of transparency in use of data. Even many of those advocating retention of statutory licensing in its current form often commented on the small returns and lack of transparency in current collective licensing arrangements.
3.75 The digital environment provides an opportunity for greater licensing as markets develop to satisfy consumer needs. Furthermore, markets can be seen as being about ‘fairness and opportunity’ as negotiated between parties, along with a ‘reasonable level of regulation’.
3.76 Statements that introducing fair use would lead to ‘no licensing’ of educational material are grossly over-stated; on the contrary, the education sector is adamant that ‘fair use is not free use’. Universities Australia has provided evidence of the important continuing role for collective licensing.
3.77 The ALRC was provided with evidence of the large amounts of money spent on educational and library resources by the university sector alone, expenditure which would be unaffected by changes to statutory licensing.
3.78 Universities Australia submitted that ‘a competitive commercial licensing model’ makes it appropriate that copyright legislation should operate to create markets based on the rights given under copyright legislation and determined by agreement between parties, rather than a statutory licence.
3.79 Recommendations in this Report support a continuing role for statutory licences, provided they incorporate more flexibility and be made less prescriptive.
Copyright Advisory Group—TAFE, Submission 230. See also Universities Australia, Submission 246, but see Screenrights, Submission 215; Copyright Agency/Viscopy, Submission 249.
Copyright Advisory Group—Schools, Submission 231. See also Universities Australia, Submission 246.
ACCC, Submission 165.
Copyright Agency/Viscopy, Submission 287.
Australian Society of Authors, Submission 169.
Ibid; see also ALAA, Submission 129.
Australian Society of Authors, Submission 169.
Australian Writers’ Guild & Australian Writers’ Guild Authorship Collecting Society, Submission 265.
M Woods, Submission 829; The Copyright Licensing Agency, Submission 766 ; Australian Major Performing Arts Group, Submission 648;Allen & Unwin, Submission 582;Australian Major Performing Arts Group, Submission 212; citing PwC research ‘An Economic Analysis of Copyright, Secondary Copyright and Collective Licensing’ (2011).
R Murdoch, ‘Markets Radiate Morality’, The Weekend Australian, April 6-7 2013, 19.
Australian Society of Authors, Submission 712; Copyright Agency, Submission 727.
Copyright Advisory Group—Schools, Submission 861.
Universities Australia, Submission 754.
In 2011, university libraries spent $256.7 million on library resources, mainly through direct subscription to electronic resources. This money flows directly to rights holders and will continue to do so: Ibid. The Australian school education sector currently spends upwards of $665 million dollars per annum on purchasing educational resources for Australian schools, this is in addition to over $80 million on copyright licensing fees paid to collecting societies: Copyright Advisory Group—Schools, Submission 707.
Universities Australia, Submission 293.