When licences cannot be obtained voluntarily

License it or lose it

6.102 If the statutory licence for government and educational uses is repealed, then it may be necessary to amend the Copyright Act to provide that certain important uses of copyright material by these institutions do not infringe copyright if a licence for the use is not available. This policy, enacted in New Zealand and the UK, has been called ‘license it or lose it’.

6.103 One concern with repealing a statutory licence is that voluntary licences may not be offered for certain rights. The underlying rights in broadcasts, for example, may not be offered to educational institutions to license. Collecting societies may not be able to secure those rights.

6.104 The scope of statutory licences is sufficiently broad to cover uses of copyright material, even when the rights cannot be obtained, and even when the rights holders are not members of the relevant collecting society, and therefore do not obtain royalties.

6.105 If a fair use exception is enacted in Australia, then the availability of a licence for certain rights will affect whether a use is fair. If a licence is not available for the underlying rights in a broadcast, for example, then it is more likely that an educational use of the underlying works in a broadcast will be held to be a fair use. But the use will not necessarily be fair. If the use is vital to governments and educational and other institutions, and there is a sufficient public interest in overriding the copyright owner’s right not to license their material, then some legislative provision may be necessary.

6.106 In New Zealand, the Copyright Act 1994 (NZ) provides for a free use exception for the copying and communication of ‘communication works for educational purposes’—but the exception does not apply when licences authorising the copying and communication are available under a licensing scheme.[105]

6.107 The UK similarly provides that an education institution can record and communicate broadcasts (in certain circumstances) without infringing the copyright in the broadcast or in the works included in the broadcast, but that the exception does not apply if there is a certified licensing scheme in place.[106]

The Act thus provides an incentive to owners to offer licences on reasonable terms. In this instance the Act benefits educational establishments not by conferring a limited privilege upon them, but rather by strengthening their bargaining position as against copyright owners.[107]

6.108 There is a similar exception for reprographic copying allowing educational institutions to make copies of passages from published literary, dramatic or musical works, provided a licence for this use is not available.[108]

Extended collective licensing

6.109 Extended collective licensing (ECL) is another way to deal with this problem of repertoire. As discussed in Chapter 11, the UK Government is considering allowing ECL for the first time. With ECL, ‘collecting societies that meet the necessary standards for protecting rights holders’ interests could seek permission to license on behalf of rights holders who are not members, with the exception of those who opt out of the scheme’.[109] The UK Government policy statement stated that ECL was ‘particularly supported by institutions that hold large archives of copyrighted work’ and that there was ‘also significant support for the proposal from collecting societies and from licensees, including commercial and public sector use’.

6.110 In the context of educational and government licences, Australian collecting societies could, for example, seek to license on behalf of the underlying rights holders in broadcasts.

6.111 The scheme proposed in the UK allows rights holders to opt out of ECL. This means that collecting societies might offer blanket licences, but subject to exceptions. ECL thus gives the rights holders greater control over the exercise of their rights than the ‘license it or lose it’ option discussed above. Rights holders are free to refuse to license their works, should they wish to.

6.112 However, this also means that schools and other educational institutions may not have access to material they need. There would also be administrative costs in checking whether a rights holder had withheld his or her rights from the collecting society.

Question 6–1 If the statutory licences are repealed, should the Copyright Act be amended to provide for certain free use exceptions for governments and educational institutions that only operate where the use cannot be licensed, and if so, how?

[105]Copyright Act 1994 (NZ) s 48. (‘communication work means a transmission of sounds, visual images, or other information, or a combination of any of those, for reception by members of the public, and includes a broadcast or a cable programme’: s 2.)

[106]Copyright, Designs and Patents Act 1988 (UK) s 35.

[107] K Garnett, G Davies and G Harbottle, Copinger and Skone James on Copyright (16th ed, 2011), [9–105].

[108]Copyright, Designs and Patents Act 1988 (UK) s 36. These UK provisions may be amended so that they cover distance learning and the use of interactive whiteboards.

[109] UK Government, Government Policy Statement: Consultation on Modernising Copyright (2012), 10.