Uses required by freedom of information laws

14.29 Freedom of information (FOI) legislation is intended to promote democracy by contributing to increasing public participation in government processes, promoting better decision making, and increasing scrutiny, discussion, comment and review of the government’s activities.[36] The ‘second generation’ of FOI law treats government information as a national resource that has been invested in by the public and so belongs to the public.[37] Access to these resources in the digital environment means online access, which poses some significant challenges when the information is made up, in part, of copyright material that is not owned by the government. For example, the Office of the Australian Information Commissioner’s freedom of information disclosure log includes a document where the copyright is not owned by the Australian Government.[38] As discussed below, this will not pose a problem for the Australian Government, but a similar use by a state, territory or local government could create difficulties.

Australian Government

14.30 The FOI Act provides immunity from proceedings for copyright infringement to Australian Government agencies and officers who give access to a document as required by the FOI Act.[39] The Australian Government’s FOI reforms introduced in 2010 extended this immunity to cover the publication on a website of information released to an FOI applicant.[40]

14.31 Both Copyright Agency/Viscopy[41] and Gilchrist[42] consider that Commonwealth uses under the FOI Act are free. However, the Office of the Australian Information Commissioner raised concerns that some publication of material under the FOI Act could have an undesirable impact on the copyright owner’s revenue or market. The Office indicated that it is considering whether to except certain information from the Information Publication Scheme ‘in circumstances where publication on a website would be unreasonable, such as if the document is an artistic work or publication would clearly impact on the copyright owner’s revenue or market’.[43]

14.32 Copyright Agency/Viscopy submitted that the existence of exceptions to copyright infringement in other legislation such as FOI laws ‘is confusing and can lead to inconsistencies’.[44] It argued that the better approach is for all of a government’s uses of third party copyright material to be covered by the government statutory licence.[45] It explained that it is possible for the collecting society and a government to agree that certain classes of use will be allowed but will not be remunerated−that is, not taken into account in the provisions for payment.[46] The ALRC has concerns about this approach. Past negotiations have been unsuccessful,[47] in part because the statute is not specific about the types of uses that are remunerable and does not provide any principles to guide the parties in their negotiations.

State and territory governments

14.33 The immunity in the FOI Act only applies to the acts of federal government agencies subject to the FOI Act. For state and territories, providing immunity from copyright infringement for government officials may not be possible. It is arguable that such a state or territory statutory provision would be inconsistent with the Copyright Act, and would, to the extent of the inconsistency, be invalid.[48]

14.34 The existence of the statutory licence means that a government use of copyright material in compliance with FOI laws could be encompassed by the statutory licence.[49] The notification requirements of s 183 would apply or, if the material was covered by a declared collecting society, the special arrangements in s 183A would apply.

14.35 The situation regarding remuneration for these uses at state and territory level is unclear. Copyright Agency/Viscopy has indicated that it does not seek payment for every use and that remuneration for disclosure under FOI laws is a matter for negotiation.[50] The Victorian Government indicated that payment is required for providing documents under the Freedom of Information Act 1982 (Vic)[51] and the NSW Government raised concerns about ‘the risk of facing unpredictable, potentially large claims for payment’.[52] The Law Council submitted that:

the exercise of these obligations should not carry a penalty of having to remunerate the copyright owner. If such a requirement were made, it is likely that the public authority would wish to pass on such costs. The Committee believes the public interest in disclosure outweighs any detriment to the copyright owner.[53]

Local government

14.36 Local governments are subject to state and territory FOI laws, and they are not covered by the statutory licence in the Copyright Act. The effect is that they risk copyright infringement when using copyright material in a way that is required by an FOI law.[54] It has been necessary to make special provision in FOI laws so that, if access to a document in the form requested would breach copyright, then access in that form may be refused and access given in another form.[55] Limits on laws requiring governments to make information available proactively have also been enacted—for example, the Government Information (Public Access) Act 2009 (NSW) was amended to provide that an agency is not required to make ‘open access information’ available if this would infringe copyright.[56] This approach gives blanket and inflexible protection for copyright material, and does not further the aim of open government. The NSW Information and Privacy Commission (NSW) stated that the risk of infringing copyright ‘undercuts the transparency and effectiveness of the GIPA Act by limiting councils’ ability to provide public access to documents that inform the basis of their decisions’.[57]

Disclosure under FOI laws and fair use

14.37 The current situation regarding FOI laws and government use of copyright material is complex, uncertain and is different for each level of government.

14.38 One option for reform would be to extend the statutory licence to local government. This options was favoured by some stakeholders, as enabling ‘more comprehensive use of material by local governments on fair terms’.[58] However other stakeholders argued that voluntary licensing was working satisfactorily and that there should be no extension.[59] The ALRC notes that such an extension would mean that local governments would potentially be subject to claims for remuneration for material used, as required by FOI laws.

14.39 Another option might be to amend the Copyright Act to provide an exception for government (including local government) uses of copyright material as required by FOI laws. However such a broad exception could be problematic if it allowed widespread dissemination of material that is also commercially available. In response to a similar challenge, the UK government plans to allow public bodies to make copyright material available online, with the proviso that ‘material that is available commercially to buy or licence (such as academic articles) would not fall within the scope’ of the exception.[60]

14.40 The ALRC considers that the proposed exception for fair use, with public administration as an illustrative purpose, is a simpler and more flexible solution. It would apply equally to all levels of government. It would still be necessary for FOI laws to provide that governments must not release material where that would infringe copyright. The question of infringement would be answered by reference to 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. According to Copyright Agency/Viscopy, negotiations already take place with governments regarding their use of copyright material as required by FOI laws. The fair use exception would provide principles on which to base the negotiations.

14.41 This approach should address the concerns raised by the Office of the Australian Information Commissioner concerning unwarranted harm to copyright owners. Copyright material would be protected when the circumstances require it, but the public interest and the goal of open government would also be taken into account.

[36]Freedom of Information Act 1982 (Cth) s 3.

[37] J Bannister, ‘Open Government: From Crown Copyright to the Creative Commons and Culture Change’ (2011) 34 UNSW Law Journal 1080, 1090–1091.

[38] Australian Government, Office of the Information Commissioner,, Freedom of Information Disclosure Log <www.oaic.gov.au/about/foi/disclosure-log.html> at 15 May 2013. The log includes an email from the Canadian Information Commissioner.

[39]Freedom of Information Act 1982 (Cth) s 90.

[40]Freedom of Information (Amendment) Reform Act 2010 (Cth) sch 4 pt 1 item 50. See Freedom of Information Act 1982 (Cth) s 90.

[41] Copyright Agency/Viscopy, Submission 249.

[42] J Gilchrist, ‘Crown Use of Copyright Material’ (2010) Canberra Law Review 1.

[43] Office of the Australian Information Commissioner, Submission 145.

[44] Copyright Agency/Viscopy, Submission 249.

[45] Ibid.

[46] Ibid.

[47] State Records South Australia, Submission 255; Copyright Agency/Viscopy, Submission 249; Tasmanian Government, Submission 196.

[48]Constitution s 109, see further E Campbell and A Monotti, ‘Immunities of Agents of Government from Liability for Infringement of Copyright’ (2002) 30 Federal Law Review 459, 471–472; and Victorian Government, Submission 282.

[49] J Bannister, ‘Open Government: From Crown Copyright to the Creative Commons and Culture Change’ (2011) 34 UNSW Law Journal 1080, 1097–1098.

[50] Copyright Agency/Viscopy, Submission 249.

[51] Victorian Government, Submission 282.

[52] NSW Government, Submission 294.

[53] Law Council of Australia, Submission 263.

[54] Information and Privacy Commission NSW, Submission 209.

[55] See, eg, Freedom of Information Act 1982 (Cth) s 23(3)(c); Government Information (Public Access) Act 2009 (NSW) s 72. These provisions are expressed generally, but are only relevant to local governments because Commonwealth or State government uses ‘for the services of the Commonwealth or State’ do not infringe copyright: s 183(1).

[56]Government Information (Public Access) Amendment Act 2012 (NSW) sch 1(1). See Government Information (Public Access) Act 2009 (NSW).

[57] Information and Privacy Commission NSW, Submission 209.

[58] Copyright Agency/Viscopy, Submission 287. See also Screenrights, Submission 215.

[59] APRA/AMCOS, Submission 247; ARIA, Submission 241; PPCA, Submission 240; SAI Global, Submission 193.

[60] UK Government, Modernising Copyright: A Modern, Robust and Flexible Framework (2012), 47.