Australian statutory licences

6.10 There are two statutory licensing schemes in the Copyright Act for the use of copyright material by educational institutions: one relates to the copying and communication of broadcasts, in pt VA; the other concerns the reproduction and communication of works and periodical articles, in pt VB.[10]

6.11 The pt VB licence applies to all copies and communications of text and images, including digital material, from any source, including the internet, but ‘in some cases, the licence does not allow the use of an entire work that is available for purchase’.[11]

6.12 The statutory licensing scheme for Crown or government use is contained in pt VII div 2 of the Copyright Act.[12] Under this scheme, copyright is not infringed by a government use of copyright material if that use is ‘for the services of the Commonwealth or State’.[13]

6.13 Under these schemes, educational institutions and Commonwealth and state governments pay fees or royalties—‘equitable remuneration’—to collecting societies for certain uses of copyright material. Collecting societies distribute royalties to their members—authors, film-makers and other rights holders.

6.14 For both the education and government schemes, Copyright Agency is the declared collecting society for text, artworks and music (other than material included in sound recordings or films). Screenrights is the declared collecting society for the copying of audiovisual material, including sound recordings, film, television and radio broadcasts.[14]

6.15 The Copyright Act mandates various administrative requirements for both schemes. For example, it requires that notice be given to rights holders or collecting societies when copyright material is used.

6.16 The Spicer Committee recommended the introduction of a statutory licence for government in 1959. The majority wereof the view that

the Commonwealth and the States should be empowered to use copyright material for any purpose of the Crown, subject to the payment of just terms to be fixed, in the absence of agreement, by the Court. … The occasions on which the Crown may need to use copyright material are varied and many. Most of us think that it is not possible to list those matters which might be said to be more vital to the public interest than others. At the same time, the rights of the author should be protected by provisions for the payment of just compensation.[15]

6.17 Two members of the Spicer Committee considered that the right to use the material without the rights holder’s consent should be ‘confined to use for defence purposes only’.[16]

6.18 The statutory licensing schemes for education were a response to widespread photocopying in educational institutions. In University of New South Wales v Moorhouse,[17] the High Court of Australia

established the potential liability of universities for authorising infringements of copyright that occurred on machines located on their premises, and this gradually led to a greater awareness, on the part of these institutions, of the need for them to comply with copyright laws.[18]

6.19 Soon after Moorhouse, the Franki Committee recommended the introduction of a statutory licence for educational establishments, stating that it believed that:

the very considerable element of public interest in education, together with the special difficulties that teachers and others face in Australia in obtaining copies of works needed for educational instruction, justifies the institution of a system of statutory licences in non-profit educational establishments.[19]

6.20 The Franki Committee made this recommendation despite concerns that a statutory licensing scheme for educational institutions ‘might seem to favour the interests of education as against the interests of copyright owners’.[20] It is therefore surprising that some thirty or so years later, educational institutions are calling for the repeal of these statutory licences.

6.21 The Australian Publishers Association submitted that ‘the basis on which statutory licensing was initially introduced for the educational sector was a matter of pragmatics, and not high principle’, and referred to the Franki Committee’s discussion of the practical difficulties and high transaction costs of educational institutions licensing material voluntarily.[21]

Institutions assisting persons with disability

6.22 The schemes in pts VA and VB of the Copyright Act also apply to institutions assisting persons with disability.

6.23 Dr Matthew Rimmer submitted that Australia’s laws in respect of copyright and disability rights are ‘a disgrace’. The exceptions are ‘messy … technology-specific; copyright subject matter specific; disability specific; and sometimes limited to institutions’. Rimmer also submitted that the statutory licences are ‘not a good means of providing access to cultural materials for those with disabilities’.[22]

6.24 The Terms of Reference instruct the ALRC not to duplicate work being undertaken on increased access to copyright works for persons with a print disability. However, many of the arguments in this chapter may also apply to the statutory licences as they relate to institutions assisting persons with disability.

6.25 Furthermore, many uses by institutions assisting persons with disability may well be fair, under the fair use exception proposed in Chapter 4. Such fair uses should not need to be licensed, and do not need to be covered by statutory licences. The freedom to format shift is particularly important for certain persons with disability. Blind Citizens Australia submitted that

a fair usage provision which recognises the needs for individuals with a print disability to format shift from an inaccessible to accessible copy would dramatically enhance access for a significant portion of the population and also advantage copyright owners through increased sales of their works.[23]

[10] This chapter concerns the statutory licences for educational and other institutions and the licences for government. The statutory licence for retransmission of broadcasts is discussed in Ch 15.

[11] Copyright Agency/Viscopy, Submission 287.

[12] Sections 183 and 183A refer to ‘the Crown’, ‘the Commonwealth or a State’ and ‘a government’. These phrases appear to be interchangeable. The position of local government is discussed in Ch 14.

[13]Copyright Act 1968 (Cth) s 183(1).

[14] Australian Government Attorney-General’s Department, Australian Government Intellectual Property Manual <> at 9 August 2012.

[15] Copyright Law Review Committee, Report to Consider What Alterations are Desirable in the Copyright Law of the Commonwealth (1959), 77.

[16] Ibid, 77.

[17]University of New South Wales v Moorhouse (1975) 133 CLR 1.

[18] Thomson Reuters, The Law of Intellectual Property: Copyright, Designs and Confidential Information, [12.100].

[19] Copyright Law Committee, Report on Reprographic Reproduction (1976) (the Franki Report), [6.40].

[20] Ibid, [6.63].

[21] Australian Publishers Association, Submission 225.

[22] M Rimmer, Submission 161.

[23] Blind Citizens Australia, Submission 157.