6.97 Like all other users of copyright material, educational institutions and governments should not need to pay for uses of copyright material that would otherwise not infringe copyright because they are covered by an exception. If governments and educational institutions were required to pay for licences for these uses, then they would be paying for uses that others, including commercial enterprises, do not have to pay for.
6.98 Screenrights submitted that voluntary licensing would add to the complexity of licensing arrangements. If the pt VA licence were replaced with fair use and voluntary licensing,
it would be necessary to determine whether each new use fell within the free fair use provision or required a licence and payment. Resolving this threshold question may then lead to the even more complex question of who actually controls the rights.
The difficulty in drawing a clear demarcation line between fair use and those uses that require permission would also impact on contract negotiations between each of the rightsholders in an audiovisual work. It would be difficult to determine which rights need to be acquired from underlying rightsholders and what their value (if any) would be.
6.99 The NSW Government, on the other hand, submitted that the Copyright Act should clarify that governments may rely on the free use exceptions.
6.100 If market failure were the only proper justification for a free use exception, then the availability of a collective licence may suggest that an exception should not apply. If it can be paid for, it should not be free. In the ALRC’s view, the availability of a licence is an important, but not determinative, consideration in both crafting exceptions, and in the application of the fair use exception. Other matters, including questions of the public interest, are also relevant.
6.101 If fair use is enacted, then licences should be negotiated in the context of which uses are fair. If the parties agree, or a court determines, that a particular use is fair, then educational institutions and governments should not be required to buy a licence for that particular use. Licences negotiated on this more reasonable footing may also be more attractive to other licensees.
Proposal 6–1 The statutory licensing schemes in pts VA, VB and VII div 2 of the Copyright Act should be repealed. Licences for the use of copyright material by governments, educational institutions, and institutions assisting persons with a print disability, should instead be negotiated voluntarily.