A rights clearance problem
11.44 Cultural institutions suggested that s 200AB has not been used to facilitate mass digitisation projects. A key reason relates to the fact that uses under s 200AB must be a ‘special case’, and it is unclear whether mass digitisation would fall under this definition. The Australian Society of Archivists (ASA) suggested that s 200AB does not consider ‘the economic impact on an archive attempting to fulfil its duties to preserve and make available its collection as a whole’.
11.45 A common theme in submissions from the cultural institutions was the inability to clear rights due to lack of resources, time, or the scale of the project. For example, the Powerhouse Museum submitted that:
The collections of museums and galleries are diverse and have a range of complex copyright issues that need to be dealt with on a daily basis. Most institutions don’t have access to legal services and need to spend many hours finding copyright holders and negotiating license agreements.
11.46 The ABC submitted that inability to quickly clear rights in relation to its archival content meant that its digitisation activities were restricted to material that:
did not require clearance of underlying rights;
are owned by the ABC and which require minimal clearance; and
are digitised for uses that recoup the cost of rights clearance through sales revenue.
11.47 Archival institutions also expressed difficulty clearing non-Crown copyright material that form essential parts of government records.
11.48 In the United States, the Copyright Office is reviewing the libraries and archives provisions of s 108 of the Copyright Act 1976 (US). In its 2011 Discussion Paper on mass digitisation, it was argued that ‘collective licensing may be an attractive option for user groups, provided that antitrust concerns can be alleviated’. In particular
Voluntary collective licensing … may be able to provide transactional licenses that give copyright owners the ability to set prices and terms and conditions of use for specific types of licensees and for specific types of use.
11.49 In the United Kingdom, passage of the Enterprise and Regulatory Reform Act 2013 (UK) will facilitate voluntary extended collective licensing. Under a new s 116B of the Copyright, Patents and Designs Act 1988 (UK), collecting societies may ‘be authorised to grant copyright licences in respect of works in which copyright is not owned by the body or person on whose behalf the body acts’.
11.50 Before being authorised to engage in extended collective licensing, regulations will require collection societies to:
demonstrate that they are significantly representative of rights holders affected by the scheme;
demonstrate that they have the support of members in the application; and
have in place a code of conduct to ensure minimum standards of governance transparency and protection for non-member rights holders.
11.51 The UK Government expects that voluntary extended collective licensing will ‘be more attractive in high-volume, low-value transactions with high administrative costs for individual clearance—such as those where collective licensing already plays a big role’. The scheme is intended to be voluntary, as rights holders can opt-out of the scheme and collecting societies are not obliged to apply for it. The UK Government envisages that extended collective licensing is ‘an additional tool being made available where it makes sense for the sector to do so’.
11.52 Extended collective licensing has also been pursued for mass digitisation and making available of ‘out-of-commerce works’ in Europe. A Memorandum of Understanding (MOU) between libraries, publishers, authors, and collection societies encourages and underpins voluntary licensing agreements for digitisation of out-of-commerce books and journals that are part of a library’s collection. The MOU notes that ‘legislation might be required to create a legal basis to ensure that publicly accessible cultural institutions and collective management organisations benefit from legal certainty, when under an applicable presumption, the collective management organisations represent rights holders that have not transferred the management of their rights to them’.
11.53 Under the principles of the MOU, the parties are to negotiate for digitising and making available works which are ‘not for direct or indirect economic or commercial advantage’. The agreement should define the types and number of works covered, and level of remuneration for rights holders.
11.54 Similar to the UK proposal, licences under the European Union system will only be granted by collective management organisations ‘in which a substantial number of authors and publishers affected by the agreement are members, and appropriately represented in the key decision making bodies’. Rights holders also retain the right to opt-out of any such agreement.
11.55 Collecting societies opposed further exceptions that would allow cultural institutions to engage in mass digitisation, particularly in relation to material that is commercially available, including under a licence from a publisher or collecting society. For example, ARIA considered that the ‘current arrangements in the Copyright Act facilitate digitisation projects and that the scope of the current provisions is adequate to meet the preservation requirements of public and cultural institutions’ and that ‘mass digitisation projects can, and should be the subject of licence agreements’.
11.56 Screenrights noted that s 183 provides a mechanism for state, territory and Commonwealth libraries and archives to negotiate individual payments for mass digitisation projects, but none have availed themselves of this exception. Screenrights is a declared collecting society for the licensing of broadcast material only. It argued for an extension of s 183A to provide for a declared collecting society to collect for uses other than copying by government to allow cultural institutions to make their collections available online, without the need for notifying each individual.
11.57 In light of the ALRC’s proposal in Chapter 6 to repeal s 183, the ALRC considers that voluntary extended collective licensing may be considered a more appropriate mechanism for mass digitisation.
11.58 The Australian Copyright Council argued that ‘if institutions require certainty it may be appropriate to consider some kind of extended collective licence to cover mass digitisation of material that is in copyright’. Extended collective licensing was also supported by Copyright Agency/Viscopy which argued that, for institutions not covered by a government statutory licence, extended collective licensing would provide ‘equitable remuneration’ to rights holders:
For mass digitisation, the approach to equitable remuneration would be similar to that for other blanket licences: all uses are licensed but a global fee takes account of higher value uses and content, lower value uses and content, and uses that are zero-rated. There is a public policy question about who bears the cost of equitable remuneration. Should it be the government through its funding of the cultural institution, or should it effectively be the content owners, by forgoing any remuneration?
11.59 Copyright Agency/Viscopy suggest that the calculation of ‘equitable remuneration’ would vary according to the content and the use including:
the benefit to the cultural institution (including the benefit of not having to get copyright clearance); and
the value and use of the content to the content owner (likely to be affected by factors such as the currency of the work; the nature of the use; and how many people can receive or view content).
11.60 The Association of Learned Professional Society Publishers submitted that extended collective licensing ‘should probably only be considered for mass digitisation projects’. It also pointed to ‘other options to cover identifying and clearing appropriate rights in such large projects, such as the ARROW project’.
11.61 The Australia Council for the Arts also noted that ‘it is worth considering whether greater digitisation and communication by public and cultural institutions is impeded by legislation or whether this is a question of resources provided to these institutions to cover the cost of using copyright material’. Professor Jock Given cautioned that
the complexity of rights-holding alone is not a sufficient reason to completely undermine rights granted to all creators at any time, in favour of open, unremunerated access to an unrestricted class of users. Law changes made to support mass digitisation projects need to provide the right base for creativity in the distant future, not just a convenient tool for easier access to already-existing material in the present.
 CAMD, Submission 236; National Archives of Australia, Submission 155. The National Library of Australia also suggested that copying large volumes of material may not amount to a ‘special case’: National Library of Australia, Submission 218.
 Australian Society of Archivists Inc, Submission 156.
 ADA and ALCC, Submission 213; Australian Broadcasting Corporation, Submission 210; State Library of New South Wales, Submission 168.
 Powerhouse Museum, Submission 137.
 Australian Broadcasting Corporation, Submission 210.
 CAARA, Submission 271; National Archives of Australia, Submission 155.
 United States Copyright Office, Legal Issues in Mass Digitisation: A Preliminary Analysis and Discussion Document (2011), 33.
Enterprise and Regulatory Reform Act 2013 (UK) s 77.
 UK Government, Government Policy Statement: Consultation on Modernising Copyright (2011), 10.
 Ibid, 11.
 The Memorandum of Understanding defines an ‘out-of-commerce’ as being when the work, in all of its versions and manifestations is no longer commercially available in customary channels of commerce, regardless of the existence of tangible copies of the work in libraries and among the public (including through second hand books and antiquarian bookshops).
 European Union, Memorandum of Understanding: Key Principles on the Digitisation and Making Available of Out-of-Commerce Works (2011). Signatories included: the Association of European Research Libraries (LIBER); Conference of European National Libraries (CENL); European Bureau of Library, Information and Documentation Association (EBLIDA); European Federation of Journalists (EFJ); European Publisher’s Council (EPC); European Visual Artists (EVA); Federation of European Publishers (FEP); International Association of Scientific, Technical and Medical Publishers (STM); and International Federation of Reprographic Rights Organisations (IFRRO).
 Ibid, 1.
 APRA/AMCOS, Submission 247; Australian Publishers Association, Submission 225; Australian Society of Authors, Submission 169; ALAA, Submission 129. See Arts Law Centre of Australia, Submission 171 ‘the availability of copyrighted works on the internet will impact on the ability of creators of those works to generate revenue from those works’.
 APRA/AMCOS, Submission 247; Australian Publishers Association, Submission 225.
 Screenrights, Submission 215.
 See Ch 6, Proposal 6–1.
 Australian Copyright Council, Submission 219.
 Copyright Agency/Viscopy, Submission 249.
 ALPSP, Submission 199.
 The Accessible Registries of Rights Information and Orphan Works is a tool to assist in the diligent search for rights status and rights holders. See ARROW, Website <http://www.arrow-net.eu/faq/what-arrow.html> at 12 May 2013.
 Australia Council for the Arts, Submission 260.
 J Given, Submission 185.