Fair remuneration for rights holders

6.26 Some stakeholders submitted that the current statutory licences for educational institutions were working well. Many stressed the importance of educational institutions paying for their uses of copyright material.

6.27 The Australian Publishers Association submitted that its members consider the

Part VB schemes—and particularly the ‘10%/1 chapter’ rules of thumb as to what constitutes a ‘reasonable portion’—are generally well understood in the education sectors, and are generally operating efficiently.^[24]

6.28 The Australian Society of Authors said the scheme was ‘a very effective balance’ and ‘works well for educational institutions and creators’:

There could be more transparency in the process—particularly how much money is paid to which publishers and authors—but all in all it operates quite well.^[25]

6.29 Some submissions from governments, collecting societies and others supported the existence of the statutory licence for government,^[26] on the basis that it would be impractical to seek permission of copyright owners before using the material^[27] and that government use is for the public benefit, rather than private or commercial ends.^[28]

6.30 Many justified the statutory licences by stressing the importance of fairly remunerating publishers, creators and other rights holders. This was perhaps the most common justification for the statutory licences in submissions to this Inquiry. For example, Screenrights submitted that a recent survey of its members showed that more than half regard the Screenrights’ royalties as ‘important to the ongoing viability of their business, and close to 20 per cent said this money was essential’.^[29]

6.31 Some stakeholders submitted that the pt VB licence scheme is efficient, cost effective and well understood and that, with sufficient education and transparency, it would receive wider support. The publisher Pearson Australia/Penguin submitted that despite the imperfections of the statutory licence for education,

for consumers it has created an efficient and cost effective way for instructors and institutions to legally access and reproduce very significant amounts of print and digital content. At an average cost of $16 per student per year, in the context of the total education cost per annum (roughly $10k per student), this is a very small
price.^[30]

6.32 The Australian Copyright Council said that, based on its experience in conducting training for educational institutions, ‘the Part VB statutory licence is generally well understood and operates efficiently’.^[31]

6.33 Firefly Education said that the ‘strength of the education statutory licence is that it offers authors and publishers fair remuneration for their intellectual property’.^[32] Oxford University Press Australia likewise submitted:

The statutory licensing scheme has served the education community, and educational authors and publishers well in the print environment; it has compensated creators of intellectual property adequately so that we have been motivated and supported to continue to invest time, money and energy into the creation of materials that support teaching and learning in educational environments. The statutory licensing scheme has meant that this aim has been achieved for print products without massive administrative burden on educational publishers and educational institutions.^[33]

6.34 More fundamentally, Copyright Agency/Viscopy questioned the very distinction between statutory licences and free use exceptions. It stated that the dichotomy is misleading because statutory licences allow free uses, and there are costs associated with ‘free exceptions’ that are not associated with statutory licences.^[34]

In truth, this is not a discussion about whether a use should be covered by a free exception (with its attendant compliance costs), but about the value of the use allowed without permission, and who should bear the cost of equitable remuneration for that value. Should the cost be borne by the user, or, in effect by the content creator?^[35]

6.35 Few stakeholders explicitly argued for the benefits of statutory licensing over voluntary licensing. Some of the benefits of statutory licensing arrangements may be replicated under a voluntary licence. The ALRC is interested in further comment on this matter.

6.36 Some submitted that the scope of the statutory licences for education should be broadened, so that licensees pay for a greater range of uses of copyright material.

6.37 A further benefit of statutory licences is that they can provide a safety net for users of copyright material, allowing uses that an organisation may not otherwise be able to license voluntarily. Copyright Agency/Viscopy submitted that with the statutory licences in place, schools can still

choose to acquire content through a direct licensing arrangement, but teachers remain entitled to use the content in ways not covered by the licence, such as ‘offline’ or ‘downstream’ uses of content acquired via online subscription.^[36]