Submission from the Department of Science, Information Technology, Innovation and the Arts (Qld) to the Australian Law Reform Commission regarding the Issues Paper on Copyright and the Digital Economy 
Important note
This submission primarily concerns provisions in the Copyright Act 1968 for Crown use of third party copyright material under statutory licence.
Some high level observations
The widespread adoption of digital devices and technologies, together with contemporary business models and practices that contravene (or potentially contravene as they have not been tested in court) the current copyright laws in Australia, demonstrate that there is need for reform in this area. 
As outlined in the issues paper, practices relating to copying and republishing content on cloud services, social networks and via caching are legally ambiguous, and this places many businesses that offer these services, or individual's that partake in them, in a precarious financial and legal position. This ambiguity in itself is a potential deterrent to innovation and investment, and favours larger businesses with greater access to legal advice and representation. 
The business community would benefit from greater clarity in relation to copyright and acceptable practices, and the formulation of clear guiding principles. 
These guiding principles and permissions could be centred on the purpose of copying e.g. for domestic/personal use (e.g. copying for use on multiple digital devices), for commercial gain (e.g. copying for sale or resale), for access, retrieval and backup (e.g. for caching, search engines and cloud services), and for the public good (e.g. for education, satire, government use and media comment). 
Many businesses, organisations, entrepreneurs, students and individuals are unaware of their obligations under copyright, and there therefore needs to be not just law reform, but greater emphasis on communicating the law to relevant parties and users. Badging and promotion of sites which clarify a person’s or business's obligations under the Copyright Act should be encouraged. 
Crown use of third party copyright material 
Section 183 of the Copyright Act 1968 (the Act) allows the Commonwealth and the States and Territories to do “any acts comprised in the copyright [in a literary, dramatic or artistic work or a published edition of such a work, or in a sound recording, cinematograph film, television broadcast or sound broadcast] if the acts are done for the services of the Commonwealth or State”. Governments, however, are required to notify the copyright owner of their use of copyright material and agree to the terms set by the owner for use of that material.  
Section 183A of the Act modifies this provision where a copyright collecting society has been declared as the relevant collecting society for a particular category of government copying. Governments must then enter into a remuneration agreement with that collecting society. 
Currently there are two such societies, namely the Copyright Agency Ltd (CAL) for the copying of print materials (in hard copy and electronic form) and the Audio-visual Copyright Society Ltd (Screenrights) for the copying of radio and television broadcasts. Governments may also enter into voluntary agreements with other copyright collecting societies, such as the Australasian Performing Right Association (APRA). 
Fees paid under the statutory scheme are calculated as a rate set per full-time equivalent (FTE) government employee. To calculate the FTE rate the parties must devise a means of estimating the volume of remunerable copying. This is currently done periodically by conducting a national sample survey of all government copying. The survey data has the additional purpose of enabling the collecting society to identify the owners of copyright materials being used by governments in order to distribute remuneration to the owners. 
Issues with the statutory scheme
The statutory scheme under section 183A of the Act is broadly advantageous to governments using certain copyright materials. It does not impose restrictions on the volume of copying done, or the ways in which governments may use copyright material. It also provides some protection against actions for copyright infringement and reduces the administrative costs involved in locating copyright holders. When, however, governments use copyright materials outside the scope of the two declared collecting societies, they are effectively in the same position as non-government copyright users. 
In recent years technical and other developments have had an impact on the practices of government employees using third party materials protected by copyright. These include:
•	the increased use of media portals to source press clips
•	reliance on library subscriptions to journals in electronic form
•	the adoption of the Australian Governments Open Access Licensing Framework (AusGOAL). 
Books, journals, press clips and similar material are increasingly being delivered online to government departments, under agreements that also license the recipients to copy copyright material. Digital technology and the advance of ebooks have changed the shape of the publishing industry, and major publishers have absorbed many smaller publishing houses. 
Government employees who copy third party material in the course of their work are increasingly likely to access the material online under a licence granted by the publisher, and to download or print out copies, if they make hard copies at all. These specific arrangements are reducing the reliance of governments on agreements with collecting societies to ensure that their use of third party material is lawful.
Agreements made by governments directly with publishers to use their copyright materials now cover a significant proportion of the publications used by government staff and the copying of hard copy originals is becoming less usual. As a result, there is a risk that owners of copyright materials may be receiving double payments for the use of the same material by governments – both under agreements between governments and collecting societies and under agreements made directly with publishers. The cost and difficulty of estimating the number of copies being made is likely to increase as the number and proportion of copies made under the statutory scheme decrease.
Digital technology is making it easier for government copyright users to deal directly with publishers and copyright owners and make their own agreements to use copyright materials. There is less need for governments and copyright owners to rely on collecting societies as intermediaries, as users can identify owners of copyright material directly through electronic means. 
It is reasonable to suppose that the level of copying of material done in reliance upon the statutory scheme may have fallen since the last survey. There is also a growing risk of governments paying twice to copy the same copyright material, for example, where they have broad agreements with collecting societies as well as specific agreements with publishers.
However, it has become more difficult to design a survey to measure the volume of copies made, as copying activities are no longer concentrated in libraries, or designated copying areas. 
National survey of government copying
The statutory scheme under section 183A has limitations in the current environment because of problems in calculating the volume and type of usage of third party copyright materials by the Crown. The design of a national survey of copying in State and Territory Governments has been a particularly difficult issue. Governments are concerned that surveys should be as unobtrusive and inexpensive as possible and measure only remunerable copying. 
More clarity in the Act about the scope and design of the national survey would be useful. The Act should also specify that non-remunerable, confidential or sensitive material must be excluded from any survey process.  
Despite years of negotiation over the survey design, no survey related to FTE rate calculation for the use of print works has been conducted in the States and Territories since 2002-03. As a result, interim agreements and retrospective payments have been necessary to enable States and Territories to meet their responsibility to pay for Crown use of material protected by copyright.
The lack of survey data has meant that it is unlikely that copyright owners have been receiving equitable remuneration for the use of their work under the statutory scheme, despite substantial payments having been made to CAL by governments. 
The section 183A statutory obligation to enter into agreements with the declared collecting societies exists even where a government agency does little or no copying.  It is therefore important to ensure that the rate of payment required from governments by the declared collecting societies is based on recent, accurate surveys of copying activity. 
In addition, it is often impossible to determine whether or not a copy has been made under a free exception in favour of the Crown. It is likely that a proportion of the copying done by governments, for which payments are made to collecting societies, falls under free exceptions.  A number of those exceptions are listed in the table below.
It would be useful if the description of the statutory scheme in section 183A could be rewritten to include a practical method of working out equitable remuneration payable and a definition of ‘excluded copies’ that included free exceptions in favour of governments. 
Copying to meet a statutory obligation
There is a specific problem that sometimes arises under section 183A, whereby part of the copying for which government agencies are obliged to pay a collecting society may include copying done in meeting a statutory obligation under other legislation. For example, remuneration for the provision of copies of surveyors’ plans has been the subject of legal action commenced by CAL against New South Wales in 2003.  This case highlights a situation in which a collecting society required a government agency to pay for carrying out its statutory functions.  
The High Court decision in relation to survey plans could be read as requiring governments to pay for their use of websites, even where the copyright owner has intentionally made the material available for such use, and does not expect or want payment. 
As a policy position, government agencies should have a free licence to use copyright material in meeting their legislative requirements under a statute. 
Government access to and use of specific types of non-government information 
Specifying the kinds of information public bodies may use in particular circumstances without paying a fee would be a desirable development in the Act. Examples might include:
•	records of parliamentary and judicial proceedings
•	records of royal commissions and statutory inquiries
•	material open to public inspection or on official register
•	material communicated to the Crown in the course of public business
•	public records
•	acts done under statutory authority.
Suggested amendments to the Act for greater clarity
•	It would be beneficial to provide clear directions about when governments are entitled to rely upon existing exceptions, and to include further exceptions to copyright infringement in favour of the Crown. The collecting societies have on some occasions argued that governments should not be entitled to rely on exceptions such as the fair dealing exceptions in Division 3 of Part III, and Division 6 of Part IV. To avoid any doubt, it would be preferable to make the legislation explicit on this point. 
•	Users would benefit from more clarity in the Act about when governments can make free use of copyright material on websites where there is a no “rights reserved” statement. It may be possible to introduce a presumption of a free licence for educational and government entities to view, download and print out material published on a website for non-commercial purposes, unless this is expressly prohibited by the terms and conditions attached to the website.
•	More generally, the Act should clarify what constitutes an implied licence for any users of copyright material to copy a website. Many internet websites grant implied licences to users. The most common examples are the use of icons often accompanied by words such as “print”, “email”, “download” or “share”, which are understood to authorise users to do the act indicated. To avoid any doubt it would be preferable to make the legislation explicit on this point.
Table 1: Exceptions of importance to governments in relation to their use of “works” (and by extension “subject-matter other than works”)
1. Copying/communication of insubstantial parts of works (section 14)	
2. Copying/communication under section 40 (research or study)	
3. Copying/communication under section 41 (criticism or review)	
4. Copying/communication under section 42 (reporting news)	
5. Copying/communication under section 43 (judicial proceedings or professional advice)	
6. Copying/communication under section 44 (inclusion of works in collections for use by places of education)	
7. Copying/communication under section 44B (labels for containers of chemical products)	
8. Copying/communication under section 47C (back up copy of computer programs)	
9. Copying/communication under section 47D (reproducing computer programs to make interoperable products)	
10. Copying/communication under section 48A (Parliamentary libraries for members of Parliament)	
11. Copying/communication under section 49 (libraries and archives for users)	
12. Copying/communication under section 50 (libraries and archives for other libraries and archives)	
13. Copying/communication under section 51 (unpublished works in libraries and archives)	
14. Copying/communication under section 51A (libraries and archives for preservation etc)	
15. Copying/communication under section 51B (preservation copies of significant works in key cultural institutions’ collections)	
16. Copying/communication under section 53 (illustrations accompanying articles and other works)	
17. Copying Australian legislation and judgements under section 182A