Universities Australia Supplementary Submission to ALRC

May 15, 2013

Universities Australia (UA) has made a supplementary submission to the Australian Law Reform Commission (ALRC) inquiry into copyright and the digital economy.

The primary purpose of the submission is to ‘elaborate’ UA’s argument that the statutory licence for education should be repealed. It sets out four models which it says are alternatives to the statutory licence, one of which is specific to broadcast content. The other three are:

  1. A ‘blanket’  licence that covers all works that the rights management organisation is authorised to license, together with a list of excluded works and some form of indemnity (licensee must check exclusions)
  2. A ‘blanket’ licence that covers all works  the rights management organisation is authorised to license (licensee must check works covered)
  3. Transactional pay-per-use licences.

Copyright Agency offers licences to the corporate and other sectors under all three of these models. Even under the first model, however, the licences are more limited in a range of respects than the statutory licence. For example, in accordance with the mandate from members, the licences prohibit making any changes to the content, and systematic storage of content; exclude ‘standalone’ images; and require ‘marking’ of certain copies.

Similarly, licences based on this model offered in other countries are more limited in scope than the statutory licence. Common differences include: exclusion of workbooks, worksheets and standalone images; exclusion of digital content; prohibition on making changes or adaptations; requirement to mark copies; and requirement to own purchased source copy.

RISK OF INFRINGEMENT

UA argues that its proposals would not increase the risk of infringement. Universities would, however, need to manage their risk differently. Their proposals would require more complex copyright decisions being made by staff at all times (not just the small proportion of staff involved in surveys of usage from time to time).

While copyright management is increasingly centralised in universities, this is not so in the school sector. Repeal of the statutory licence would require all school teachers (not only those participating in surveys) to make more complex copyright decisions.

WHICH USES MADE UNDER STATUTORY LICENCES ARE ‘REMUNERABLE’?

UA argues that ‘all uses are potentially remunerable’. It argument seems to misunderstand both the determinations of the Copyright Tribunal and Copyright Agency’s approach.

The statutory licences require ‘equitable remuneration’ for uses made in reliance on them. They allow uses for which ‘equitable remuneration’ is zero, such as intermediate or temporary uses that are not directly related to the ‘consumption’ of content.

Equitable remuneration is determined by the Copyright Tribunal if not agreed between the parties, and the Tribunal has provided useful guidance on what factors influence ‘equity’. You look at the value of the use to the licensee (including the value of not having to get a clearance), and the value to the content creator (the lost opportunity to license on commercial terms, or refuse a licence). You also take into account the objectives of the statutory licence to facilitate access to content for education: content creators do not receive the remuneration they would receive in a commercial market.

By contrast, while Copyright Agency’s ‘voluntary’ licences are reviewable by the Copyright Tribunal, there is no legal requirement that a licensee’s special status be taken into account.

Universities currently pay an annual flat rate. While negotiations for the rate are influenced by the extent of past uses made in reliance on the statutory licence (as recorded in surveys), universities do not pay on a use-by-use basis. The flat rate is negotiated taking into account a large range of issues.

REPEAL OF STATUTORY LICENCE NOT CONTINGENT UPON FAIR USE

Consistently with the position taken by the school sector, UA says its call for repeal of the statutory licence is not contingent upon the introduction of a new ‘flexible exception’ applicable to the education sector.

CONTINUING ‘RELEVANCE’ OF STATUTORY LICENCES

UA repeats the argument from its initial submission that statutory licences are ill-suited for the digital environment, citing developments such as increased direct licensing with publishers, open access publishing and student-based learning.

Statutory licences are available to the education sector should they choose to use them. The licences expressly allow educational institutions to make other arrangements with content creators, such as direct licensing arrangements. The Part VB statutory licence, which is technology-neutral, continues to allow the education sector to make uses of text and images that fall outside of these other arrangements.

CAN A USE COVERED BY A LICENSING SOLUTION BE ‘FAIR USE’?

UA argues that a use could be allowed (for free) under a new ‘flexible’ exception (such as ‘fair use’), even if the user can make that use under a licensing solution: the licensing solution should be taken into account but not determinative.

Exceptions such as ‘fair dealing’ and ‘fair use’ were initially introduced to enable the use of content for socially desirable purposes, in an era when getting copyright clearances could be cumbersome. The question now is whether exceptions are primarily about access or about price. If it’s about access, then it is difficult to see why a use that is already allowed under a licensing solution should also be allowed under a free exception. If it’s about price, there needs to be a clearer articulation of why and when the government should deem the price to be zero. This is particularly so where there is a licensing solution overseen by an independent arbiter such as the Copyright Tribunal.

MORE ON ALRC INQUIRY

See our ALRC webpage for more information and links.

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