In its final report on Copyright and the Digital Economy, the Australian Law Reform Commission (ALRC) has made some recommendations to retain, but simplify, the statutory licensing scheme.
Statutory licences allow for certain uses of copyright material, without the permission of the rights holder, subject to the payment of reasonable remuneration. When applicable, it is compulsory for the rights holders to license their material.
Currently, the copyright legislation provides for regime applies statutory licensing schemes that are applicable to for the government, educational institutions and institutions assisting people with disabilities. Under these schemes, equitable remuneration is paid to collecting societies that distribute royalties to their members, being rights holders.
In its earlier report, the ALRC had recommended that the statutory licensing scheme be repealed. This had followed strong calls, particularly from the education sector, for statutory licences to be repealed on the basis that that they are inefficient and complex. The licences had also been criticised by some rights holders who emphasised that they should have control of their own work and be able to negotiate the licensing of their rights on the free market.
The ALRC’s earlier recommendation was, however, met with widespread opposition, with many rights holders arguing that the current system provides ease, flexibility, economies of scale, transparency and certainty. It also provides fair remuneration to rights holders, who in the absence of a compulsory system may be unable to negotiate a commercially viable arrangement with government and education institutions.
In response to this opposition, the ALRC has concluded that there is, at least for now, a continued role for current statutory licences for education and government, with certain 'clarifications' and simplifications.
Recommendations for amendments to the Copyright Act – statutory licensing
Whilst the ALRC has moved back from its earlier recommendation on repealing the statutory licensing scheme, it flags that if the fair use and new exceptions for government use are not introduced, there would be reason to revisit repealing the statutory licensing scheme.
The ARLC also recommends a number of reforms to address specific criticisms of the statutory licensing scheme, including:
- clarification that the statutory licences do not apply where use of material falls within an exception to copyright - this will be particularly important if the ALRC’s recommendations to introduce a fair use exception or expand the existing fair dealing exceptions are accepted
- clarification that statutory licences do not apply where an alternative licence is negotiated – a clarification that is recommended as a check on the market power of collecting societies
- removal of requirement that governments must notify or pay equitable remuneration to a declared collecting society, so that governments have the option to deal directly with rights holders
- making statutory licences less prescriptive and more flexible - detailed provisions concerning the setting of equitable remuneration, remuneration notices, records notices, record keeping, sampling notices and survey requirements should be removed and terms should be agreed between the relevant parties, or by the Copyright Tribunal
Recommendations for amendments to the Copyright Act – specific government exceptions
The ALRC recommends retaining the current exceptions for parliamentary libraries and judicial proceedings. It also recommends clarifying that governments may rely on the other exceptions in the Copyright Act (including the ‘fair use’ exception if introduced), and making further specific exceptions for:
- use for the purpose of the proceedings of royal commissions, public inquires and tribunal proceedings, and reporting of those proceedings. Note that the ALRC does not consider that all inquiries need to be explicitly covered by this exception, as some may be covered by the new fair use exception, or under the statutory licence
- use where a statute requires public access to be given to copyright material by local, state or Commonwealth governments. For example, the reproduction of material in order to satisfy a freedom of information request, or to display a development application), and
- internal copying and use of correspondence and other material sent to governments in the course of public business (that is not otherwise available to the public as published material).