The implications of cultural policy for copyright reform

3.58 Many stakeholders in this Inquiry are at the forefront of cultural life in Australia, and it is clear that copyright law directly affects a broad range of cultural activity. The Terms of Reference specifically refer to ‘the general interest of Australians to access, use and interact with content in the advancement of ... culture’. The ALRC has been urged ‘not to think about copyright law solely or primarily in terms of trade and economic policy but to recall its central role in cultural policy’.[97]

3.59 A National Cultural Policy Discussion Paper was launched by the Minister for the Arts, the Hon Simon Crean MP, in August 2011. It noted that: ‘a creative nation is a more productive nation’.[98] Following extensive feedback from organisations, community groups and individuals, a new National Cultural Policy was launched on 13 March 2013.[99] It explicitly recognises the importance of copyright law—and the ALRC Inquiry—in reform aimed at providing:

incentives for investment in innovation and content in a digital environment, while balancing the need to allow the appropriate use of both Australian and international content.[100]

3.60 The objective of the new National Cultural Policy is to increase the social and economic dividend from the arts, culture and the creative industries and is explicitly linked to the opportunities to be provided by the National Broadband Network. In this context, a number of stakeholders point to desirable reform of copyright law to allow greater digitisation and communication of works by public and cultural institutions.[101]

3.61 The Issues Paper canvassed the various ways in which the Copyright Act provides for galleries, libraries, archives and museums (collectively, the ‘GLAM sector’). In considering reform that is beneficial for Australians in terms of accessing and interacting with culture: ‘we need to keep in mind the particular kind of cultural products we want to have access to and craft rights to support culturally meaningful forms of engagement with copyright works’.[102]

3.62 Greater access to cultural material in a way that does not impede incentives to innovate and the capacity for a creator to be fairly rewarded is a common theme in submissions. For example, digitisation of material for library and archival purposes, for ‘non-commercial access’ during the copyright term is regarded as being of a different order to digitising collections for access on the internet.[103]

3.63 In 2011, a Copyright Council Expert Group produced a statement of fundamental principles of Australian copyright law, recognising ‘the importance of encouraging the endeavours of authors, performers and creators by recognising economic rights’ (and also moral rights), ‘subject to limitations’, and in a manner that ‘takes account of evolving technologies, social norms and cultural values’.[104]

3.64 One aspect of access to cultural heritage, which has attracted a great deal of comment from Australian cultural institutions, is the extension of the term of copyright protection.[105] Although extension of the term from 50 to 70 years has not in itself created the issues cultural institutions face in preserving and using material donated and otherwise acquired, it exacerbates them.[106] One issue here is that the copyright term commences from first publication of a work or other subject matter. For older material this means an even more extended time before it enters the public domain.[107]

3.65 Difficulties in clearing rights in digital material leads to skewed representation of cultural aspects and history, and creates what has been termed ‘blockbuster skew’ or ‘digital skew’.[108]

The sense of history which comes with access to the whole, or a substantial part, of an archive, is of much greater cultural value than a small selection curated through the random prism of copyright clearance. … There is a danger that in the digital age the publicly available cultural history of broadcasting will skew: we will remain familiar with ubiquitous blockbuster programs which are available everywhere more than we will remember local Australian programs left in the archives.[109]

3.66 The ‘cultural value’ of works with no economic value is often high but ‘copyright protects equally works of economic value as well as those of no economic value’.[110] and there can be onerous costs of compliance with copyright law, but with no resulting benefit to any creator or owner. Perhaps this could amount to circumstances where:

the policy rationale for any new exception should be based on the purpose for which content can be used without permission. This purpose should, as a matter of public interest, be more important than a content creator’s right to manage the use of their work.[111]

3.67 Even those advocating an approach to copyright law reform based on evidence—particularly economic evidence—note that copyright exceptions and limitations applicable to the role of libraries and archives as ‘cultural custodians’ have important effects on ‘individual welfare, autonomy and freedom of expression which are harder to quantify but nonetheless critical’.[112]

3.68 It is clear that particular protocols and considerations may apply to Indigenous cultural material, whether within copyright protection or not.[113] Considerable work has been done on developing and implementing protocols for digitisation and use of Indigenous material.[114] The moral rights regime introduced into the Copyright Act in 2002 has deficiencies but also possibilities in recognising the importance of cultural and religious sensitivities. Moral rights can assist in ‘distinguishing between the two situations of the Aboriginal artist and the non-Aboriginal artist’, including around the very act of unauthorised reproduction itself.[115] One existing exception in the Copyright Act, relating to parody and satire, may in particular set up a tension between moral rights and ‘the public interest in expressive freedom’ which is ‘a matter which would have to be worked out on a case by case basis in the courts’.[116]

3.69 Concerns relating to Indigenous material do not centre only on outsiders using cultural material. Sometimes the issues are the reverse, where copyright can prevent access by Indigenous people to their own heritage. Arts Tasmania identified this as an issue of ‘cultural maintenance’:

There are instances where access to important cultural material has been denied to Aboriginal people by the copyright owners. Aboriginal living people should be allowed access to the cultural material of their ancestors to interpret, adapt and republish.[117]

[97] Members of the Intellectual Property Media and Communications Law Research Network at the Faculty of Law UTS, Submission 153.

[98] G Trainor and A James, Review of the Australia Council (2012), 9.

[99] Australian Government, National Cultural Policy Discussion Paper (2011) accessed 13 March 2012.

[100] Ibid, 83.

[101] ADA and ALCC, Submission 213; Australian War Memorial, Submission 188.

[102] K Bowrey, Submission 94.

[103] Arts Law Centre of Australia, Submission 171.

[104] Copyright Council Expert Group, Directions in Copyright Reform in Australia (2011).

[105] See discussion in M Rimmer, Digital Copyright and the Consumer Revolution (2007) particularly Chapter 1 ‘The Dead Poets Society: The Copyright Term and the Public Domain’, 24; see also Intellectual Property and Competition Review Committee, Review of Intellectual Property Legislation under the Competition Principles Agreement (2000), 80−84.

[106] M Rimmer, Submission 127.

[107] National Library of Australia, Submission 218.

[108] J Given, Submission 185 citing E Hudson and A Kenyon, ‘Without Walls: Copyright Law and Digital Collections in Australian Cultural Institutions’ (2007) 4(2) SCRIPT-ed 197 and S McCausland, ‘Getting Public Broadcaster Archives Online: Orphan Works and Other Copyright Challenges of Clearing Old Cultural Material for Digital Use’ (2009) 14 Media Arts Law Review 21.

[109] S McCausland, ‘Getting Public Broadcaster Archives Online: Orphan Works and Other Copyright Challenges of Clearing Old Cultural Material for Digital Use’ (2009) 14 Media Arts Law Review 21, 24. See also Australian War Memorial, Submission 188.

[110] Australian War Memorial, Submission 188.

[111] Copyright Agency/Viscopy, Submission 249.

[112] Board on Science, Technology and Economic Policy, Copyright in the Digital Era: Building Evidence for Policy (2013), 8.

[113] Arts Law Centre of Australia, Submission 171; ADA and ALCC, Submission 213; State Library of New South Wales, Submission 168.

[114] Arts Tasmania, Submission 150; M Nakata and others, ‘Indigenous Digital Collections: An Early Look at the Organisation and Culture Interface’ (2008) 39(4) Australian Academic and Research Libraries Journal 137. See also M Nakata and others, ‘Libraries, Indigenous Australians and a Developing Protocols Strategy for the Library and Information Sector’ in M Nakata and M Langton (ed) Australian Indigenous Knowledge and Libraries (2005).

[115] P Loughlan, ‘The Ravages of Public Use: Aboriginal art and moral rights’ (2002) 17 Media and Arts Law Review 24.

[116] Ibid, 25, discussing parody of work albeit before the exception for parody and satire was introduced in 2006.

[117] Arts Tasmania, Submission 150.