Changing patterns of government use

14.8 Government use of copyright material has changed significantly in response to the emergence of digital technologies. Governments now receive large amounts of copyright material via email and online, scan and digitally store documents sent to them, email documents internally and publish material on intranets and external websites. They are much more likely to rely on subscriptions to online libraries and media portals than on hardcopy newspapers, books, journals and looseleaf services.

14.9 Digital technology is also an intrinsic part of the open government agenda. The Australian Government has declared that ‘it is committed to open government based on a culture of engagement, built on better access to and use of government held information, and sustained by the innovative use of technology’.[8] Reforms associated with open government include the amendment of the Freedom of Information Act 1982 (Cth) (the FOI Act) and the establishment of the Office of the Australian Information Commissioner and the Information Publication Scheme. This scheme requires agencies to publish certain information, including information released under freedom of information requests, on their websites.[9] There are similar schemes at the state and territory level.[10]

14.10 These developments challenge the existing statutory arrangements for government use of copyright. There are particular concerns about whether the uses required by open government statutes are free or remunerable; and whether the increased numbers of copies made as a result of digital procedures are remunerable. Disagreements about which uses are remunerable have led to difficult and protracted negotiations over the amounts payable under the statutory licence.[11]

14.11 In Chapter 6, the ALRC proposes the abolition of the statutory licence for government use, on the basis that voluntary licensing is more suitable in the digital environment. Negotiations for voluntary licences will also be conducted in light of the availability of exceptions. The ALRC has considered whether specific exceptions should be available for certain government uses, as was suggested by several government agencies.[12] For example, both the United Kingdom and New Zealand copyright statutes include a list of exceptions under the heading ‘public administration’ that includes the following:

  • parliamentary and judicial proceedings;

  • royal commissions and statutory inquiries;

  • material open to public inspection or on official registers;

  • material communicated to the Crown in the course of public business; and

  • acts done under statutory authority.[13]

14.12 The ALRC considers that specific exceptions are insufficiently flexible in the digital environment. They do not adapt to changing patterns of use. For example, neither the UK nor the NZ statute provides for online access to material open for public inspection.[14]

14.13 It is difficult to predict the type of government uses that will become vital for democratic processes in the future. As the Spicer Committee commented in 1959, ‘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’.[15]

14.14 Further, specific exceptions offer inadequate protection to copyright owners. In the UK and NZ, a government use that falls within one of the above exceptions could be permitted even where it had a significant impact on the market value of the copyright material.[16] In Australia, the specific exception for judicial proceedings has been described as:

potentially broad: it is not qualified by any requirement of fair dealing and extends to any use that would otherwise infringe copyright. Accordingly, this will permit such acts as the making of multiple hard copies of documents, the making of electronic versions, public performance or exhibition, communication to the public ... so long as they are for the purposes specified in the subsection.[17]

14.15 Instead, the ALRC proposes that government uses should be considered under a general fair use exception, and that ‘public administration’ should be one of the illustrative purposes listed in the fair use provision. ‘Public administration’ is used in a broad sense, to encompass the activities of all three branches of government: the executive, the legislature and the judiciary. It is in the public interest for governments to use copyright material in ways that encourage open government, contribute to effective administration, and facilitate parliamentary and judicial processes. These uses are, largely, not part of the normal market for copyright material and do not affect the incentives for the creation of works.

14.16 However, not all uses of copyright material for the purpose of public administration would be fair use. All uses would be considered in light of the fairness factors: the purpose and character of the use, the nature of the material used, the amount and substantiality of the part dealt with, and the effect of the use upon the market for the material. The ‘purpose and character of the use’ will be particularly relevant when considering government uses which are non-commercial and intended to serve the public interest. Uses that contribute to efficient and open government are more likely to be fair use. Uses that are engaged in for a commercial purpose or that have a significant impact on the market for the copyright material are less likely to be fair use.

14.17 The approach proposed is similar to the US approach, where the US Department of Justice, Office of Legal Counsel has said that:

while government reproduction of copyrighted material for governmental use would in many contexts be non-infringing because it would be a ‘fair use’ under 17 USC § 107, there is no ‘per se’ rule under which such government reproduction of copyrighted material invariably qualifies as a fair use.[18]

14.18 The approach is also consistent with the European Directive on Copyright in the Information Society, which allows member states to make an exception for

use for the purposes of public security or to ensure the proper performance or reporting of administrative, parliamentary or judicial proceedings.[19]

Proposal 14–1 The fair use exception should be applied when determining whether a government use infringes copyright. ‘Public administration’ should be an illustrative purpose in the fair use exception.

14.19 The remainder of this chapter will consider some particular government uses, some problems that have arisen under the current statutory arrangements, and how these uses might be treated under a fair use exception.

[8] Australian Government Information Management Office, Declaration of Open Government <http://agimo.gov.au/2010/07/16/declaration-of-open-government/> at 30 April 2013.

[9] Ibid.

[10] For example, Government Information (Public Access) Act 2009 (NSW); Right to Information Act 2009 (Qld); Right to Information Act 2009 (Tas).

[11] Discussed in Ch 6.

[12] NSW Government, Submission 294; Victorian Government, Submission 282; State Records South Australia, Submission 255; Tasmanian Government, Submission 196.

[13]Copyright, Designs and Patents Act 1988 (UK) ss 45–50; Copyright Act 1994 (NZ) ss 58–66.

[14] The United Kingdom government has indicated its intention to amend the Copyright, Designs and Patents Act 1988 (UK) with regard to online access (UK Government, Modernising Copyright: A Modern, Robust and Flexible Framework (2012), 47, but this has not yet occurred.

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

[16] The UK and NZ exceptions contain some qualifications, such as allowing copying only ‘for the purpose of enabling the material to be inspected at a more convenient time or place’: Copyright, Designs and Patents Act 1988 (UK) s 47(2); or for the purpose of a member of Parliament performing his or her duties as a member: Copyright Act 1994 (NZ) s 58(3)(b), but do not refer to the impact of the use on the value of the material.

[17] Thomson Reuters, The Law of Intellectual Property: Copyright, Designs and Confidential Information, [11.70].

[18] US Department of Justice, Office of Legal Counsel, Whether Government Reproduction of Copyrighted Materials Invariably is a "Fair Use" under Section 107 of the Copyright Act of 1976 <www.loc.gov/
flicc/gc/fairuse.html> at 16 April 2013.

[19]Directive 2001/29/EC of the European Parliament and of the Council on the Harmonisation of Certain Aspects of Copyright and Related Rights in the Information Society, (entered into force on 22 June 2001) art 5(3)(e).