Ms Sabina Wynn
Executive Director
Australian Law Reform Commission
By email: copyright@alrc.gov.au

Dear Ms Wynn
Copyright and the Digital Economy Issues Paper
Thank you for the opportunity to make a submission in response to the Australian Law Reform Commission’s issues paper Copyright and the Digital Economy (IP 42).  My comments relate to Question 33 from the issues paper concerning the effect of the Copyright Act 1968 on government obligations to comply with other regulatory requirements.  Specifically, my comments relate to copyright considerations arising from the publication of third party material by agencies and ministers under the Freedom of Information Act 1982 (FOI Act).
Office of the Australian Information Commissioner
The OAIC was established by the Australian Information Commissioner Act 2010 and commenced operation on 1 November 2010.  The OAIC is an independent statutory agency headed by the Australian Information Commissioner.  The Information Commissioner is supported by two other statutory officers: the Freedom of Information Commissioner and the Privacy Commissioner.
The OAIC brings together the functions of information policy and independent oversight of privacy protection and freedom of information (FOI) in one agency, to advance the development of consistent workable information policy across all Australian government agencies.
Government obligations to publish third party material and related copyright considerations
The 2010 reforms of the FOI Act were aimed at promoting a pro‑disclosure culture across government.  Two key reforms were:
•	the establishment of a mandatory agency Information Publication Scheme (IPS) under Part II of the Act
•	a requirement under s 11C, known as the disclosure log, that ministers and agencies publish on their websites, subject to certain exceptions, information that has been released to an FOI applicant (or details of how such information may be accessed).
In the OAIC’s view, the IPS and disclosure log publication requirements raise two specific issues of concern in relation to copyright:
•	The unintended acquisition of copyright where the Commonwealth becomes the first publisher of a work in the course of complying with IPS or disclosure log requirements (the ‘first publication’ rule under s 177 of the Copyright Act, discussed in more detail below)
•	The effect that Commonwealth publication on a website of previously published third party material may have on the copyright owner’s revenue or market.  Documents available under the FOI Act are not confined to those created by government.  Material maintained for reference purposes that is otherwise publicly available is not included (definition of ‘document’, s 4(1)), but other material in which a third party owns copyright may be available under FOI.
Protection under the FOI Act from breach of copyright
Sections 90 and 91 of the FOI Act provide protection, against infringement of copyright and other civil actions, to the Commonwealth, a minister, an agency or an officer who gives access to a document as required by the Act or in the bona fide belief that access was required to be given.  Section 90(1) provides that this protection extends to:
•	publication in good faith in the belief that publication is required or permitted under the IPS or the disclosure log
•	the giving of access to a document in good faith in the belief that access is required or permitted to be given in response to a request
•	publication or giving access to a document in good faith, in the belief that publication or access is required or permitted otherwise than under the FOI Act (whether or not under an express legislative power).
The protection from breach of copyright extends to the Commonwealth’s consultation with a third party about giving access to documents, even where there is a failure to comply with the third party consultation provisions (s 91).  Giving access to a document in response to an FOI request (s 91(2)(b)) or showing a document to a third party as part of a consultation (s 91(2A)(e)) expressly does not constitute an authorisation or approval for the purposes of the law of copyright.
These protections do not extend to use and reuse of the information or document by members of the public.
The first publication rule
Under s 177 of the Copyright Act, the Crown is the owner of copyright in any work first published in Australia by, or under the direction or control of, the Commonwealth or State.  The person who would otherwise own the copyright and the Commonwealth may agree otherwise (s 179).  The Copyright Law Review Committee has recommended that these provisions be repealed.
Because the FOI Act applies to documents in an agency’s or minister’s possession (definitions of ‘document of an agency’ and ‘official document of a Minister’, s 4(1)), the agency or minister may be the first to publish in a disclosure log on their website unpublished material that a member of the public or organisation has sent to them.  The author of the material may not have realised this was possible when providing the unpublished material to the Commonwealth.  There may be some concern that the Commonwealth could be perceived as facilitating a breach of a third party’s copyright by members of the public if it later puts that material on a website, notwithstanding any accompanying warnings to the public about use and reuse.
One option to alleviate concerns about unintended acquisition of copyright would be to amend the FOI Act or the Copyright Act to exclude material published under the FOI Act from the operation of s 177 of the Copyright Act.  However, there would remain the issue of possible loss to copyright owners following publication under the FOI Act of material that had been previously published elsewhere.
Guidance from the OAIC about the reuse of third party material
The Information Commissioner has the power under s 93A of the FOI Act to issue guidelines to which agencies and ministers must have regard when performing a function or exercising a power under the FOI Act.  Parts 13 and 14 of the Guidelines suggest that agencies should include a clear statement on their websites notifying the public that they may need to seek the copyright owner’s permission before reusing third party material.
The Information Commissioner also has the power to make determinations to except certain types of information from the IPS and disclosure log publication requirements (ss 8(3), 11C(2)).  The OAIC is currently considering whether such a determination might be appropriate to protect the rights of copyright owners 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.  Such a determination could operate in conjunction with any amendment, discussed above, relating to the operation of s 177 of the Copyright Act.
I hope that this submission is of assistance to the inquiry.  If we can be of further assistance in relation to this matter please contact Ms Sarah Ghali of the OAIC on (02) 9284 9738 or email sarah.ghali@oaic.gov.au.
Yours sincerely
James Popple
Freedom of Information Commissioner
Office of the Australian Information Commissioner
16 November 2012