NSW Government Submission to ALRC
The NSW Government has made a submission to the Australian Law Reform Commission (ALRC), in connection with its inquiry into copyright and the digital economy.
SUMMARY OF NSW POSITION ON GOVERNMENT STATUTORY LICENCE
In relation to the government statutory licence, the NSW government asks the ALRC to:
- ‘clarify that Governments can rely on fair dealing and other free licences where applicable’, and that the government statutory licence ‘is relevant only where no other exception is applicable’.
- ‘introduce new free exceptions for Governments to use copyright material for specified public interest purposes’.
- ‘introduce a new free exception for Governments to use copyright material on websites, where the uploading of the material did not infringe copyright and the copyright owner has not expressly stated its intention to commercialise the material’.
- ‘amend s. 183A such that Governments will no longer be compelled to make agreements with collecting societies (but may choose to do so)’
- repeal the provision that which enables a collecting society to carry out ‘sampling’ of usage
Copyright Agency is ‘declared’ by the Copyright Tribunal as the collecting society for government copies of text and images.
While there is currently no provision for Copyright Agency to be declared in relation to communications, we offer a voluntary licence for communications as part of our agreements with governments, based on the mandate from our members.
The NSW government has paid Copyright Agency for its use of content in reliance on the statutory licence for many years. It last provided data about its usage of content in reliance on the licence in 2007, and provided some (but limited) data before that.
The Copyright Tribunal is in the process of making a determination about the equitable remuneration payment for the NSW government’s sale of survey plans, directly and via brokers. In those proceedings, the parties have agreed that the following copying and communication of survey plans by NSW Land and Property Information, for the purposes of the State, are covered by the statutory licence for governments but do not result in payment:
- internal copying and communication, both for the purposes registration and other purposes; and
- copying and communication to third parties:
- for purposes of registration; and
- for purposes other than registration, for no fee.
ABOUT THE OPERATION OF STATUTORY LICENCES
The government statutory licence is available to governments for uses not covered by other arrangements, such as direct licensing arrangements with content creators. Before 1998, governments relying on the notice were required to notify the copyright owner in relation to each use under the licence, unless it was contrary to the public interest. The copyright owner was entitled to agree terms, or ask for a determination from the Copyright Tribunal.
Since 1998, governments have been relieved of the administrative burden of notifying the content creator in each case. The declared collecting society can notify a government that it wishes to do ‘sampling’ of usage, but only after a method for determining equitable remuneration has been agreed or determined by the Copyright Tribunal.
As noted above, the statutory licence can allow uses for which equitable remuneration is zero.
The NSW submission makes a number of references to being ‘compelled’ to make agreements with collecting societies. If a government chooses to use content in reliance on the statutory licence, it must reach agreement with the collecting society on the method for working out equitable remuneration for uses made in reliance on the statutory licence, or seek a determination from the Copyright Tribunal.
If a government ‘does no copying under s 183’, it is not required to enter into an agreement with the collecting society. Governments can negotiate directly with copyright owners, and do not need to rely on the statutory licence for any uses made under direct arrangements.
BODIES NOT COVERED BY THE STATUTORY LICENCE
Copyright Agency offers licences for bodies that are not covered by the statutory licence because they are not the ‘Crown’ (i.e. local councils).
RELATIONSHIP BETWEEN STATUTORY LICENCE AND ‘FREE’ EXCEPTIONS
The statutory licence allows governments to do anything for the services of the government. Unlike the education statutory licence, the government statutory licence allows the use of an entire work that is available for purchase. The compliance requirements are minimal. As noted above, some uses can be made in reliance on the statutory licence, where equitable remuneration is zero.
The relationship between the government statutory licence and other exceptions is largely governed by the purpose of the use. Copying by a government employee for their personal study may be ‘fair dealing’ if the use is ‘fair’ according to the criteria in the Copyright Act. If the use is for the services of the government, then the government statutory licence is the relevant provision. New exceptions to assist governments would appear unnecessary, given the breadth of the ‘services of the government’.