Notifying rights holders directly

8.82 The statutory licences should also be amended to allow governments to deal directly with rights holders, rather than with collecting societies, where they choose to and where this is possible. Collective rights administration can offer many advantages and efficiencies, but in some cases, it may be more appropriate for users and rights holders to negotiate directly.

8.83 Under the statutory licence for governments, governments must inform the owner of the copyright, as prescribed, of the use of the copyright material, ‘furnish him or her with such information as to the doing of the act as he or she from time to time reasonably requires’.[90] The terms of the use, such as the amount of remuneration, are then to be agreed upon by the rights holder and the government.[91]

8.84 However, following amendments made in 1998, the Copyright Act provides that if there is a declared collecting society, the government does not need to notify or make an agreement with the rights holder. Instead, it must pay a declared collecting society ‘equitable remuneration’ worked out using a method agreed upon by the government and collecting society, or the Copyright Tribunal.[92] This means that governments cannot choose whether to deal directly with a collecting society or with the rights holder. The collecting societies also have automatic powers to carry out sampling, subject to certain limitations and objections from government.[93]

8.85 The NSW Government submitted that governments should not be ‘compelled to make agreements with collecting societies’.[94]

Unlike other copyright users, Government agencies are not entitled to make a commercial decision on how to manage their copyright liabilities, but must enter agreements with the collecting societies in accordance with s 183A or face litigation. The legal obligation remains even if a Government does no copying under s 183.[95]

8.86 In the ALRC’s view, governments should be able to choose to deal directly with rights holders, even if in most cases it will be more efficient to deal with the relevant collecting society. Governments now rely more heavily on direct licences. If they rely less on statutory licences—perhaps only for a relatively few additional uses for which they are unable to obtain a direct licence, that is, simply to ‘fill the gaps’—then governments should not automatically be required to make an agreement with a collecting society. In such circumstances, collecting societies should also not be given automatic powers, such as the power to conduct surveys of government uses.

8.87 Like companies and other organisations, educational institutions and governments should be able to manage their own licensing arrangements, without the additional oversight of collecting societies.

Recommendation 8–3 The Copyright Act should be amended to remove any requirement that, to rely on the statutory licence in pt VII div 2, governments must notify or pay equitable remuneration to a declared collecting society. Governments should have the option to notify and pay equitable remuneration directly to rights holders, where this is possible.

[90] Copyright Act 1968 (Cth) s 183(4).

[91] Ibid s 183(5).

[92] Ibid s 183A(1).

[93] Ibid s 183C.

[94] NSW Government, Submission 294.

[95] Ibid.