The Government is proposing reforms that will simplify and update Australia's copyright laws to better support the needs of Australians and public institutions to access material in an increasingly digital environment.
While these issues are not new, the need for change has been highlighted during COVID-19, with schools, universities, cultural institutions and governments having to deliver essential services online.
These reforms to the Copyright Act 1968 follow two years of extensive stakeholder consultation and will finalise the Government's response to copyright recommendations in the Productivity Commission's 2016 Intellectual Property Arrangements report.
The Government expects to release exposure draft legislation, which will provide further details of reforms and provide an opportunity for stakeholder consualtation.
The proposed copyright access reforms will include the following five main measures:
Introduce a limited liability scheme for use of orphan works
Establish a scheme to allow the use of copyright material where:
- a reasonably diligent search has been undertaken, but the copyright owner cannot be identified or located (known as an 'orphan work'), and
- as far as reasonably possible, the work has been clearly attributed to the author.
Relevant sectors (for example, the cultural, educational and broadcasting sectors) and creative industries will be encouraged to develop guidelines around conducting diligent searches.
If the copyright owner later comes forward, the user will not be liable for past use of the orphan work, and will be permitted to continue to use the work upon reasonable terms as agreed with the copyright owner (or, failing agreement, as fixed by the Copyright Tribunal).
If reasonable terms are not met, the copyright owner will be able to seek an injunction against future use of the orphan work.
The scheme will have the dual benefit of opening up 'orphaned' copyright material to be used in modern creative endeavours, as well as providing richer access to a larger collection of works in our public collecting institutions.
New fair dealing exception for non-commercial quotation
Introduce a new fair dealing exception for quoting copyright material, subject to:
- quotation occurring for non-commercial purposes, or if the use is of immaterial commercial value to the product or service in which it is used
- use only by cultural and educational institutions, governments and other persons engaged in public interest or personal research, and
- the making of the quotation must be compatible with fair practice having regard to standard fairness factors.
The new exception will reduce uncertainty and administrative burden for schools, universities, libraries, museums, government agencies, academics and researchers when they quote words from a book, a passage from a piece of music or a visual image taken from a work of art.
Amend library and archives exceptions
Simplify and update provisions to apply equally to all copyright materials and be technologically neutral so that cultural institutions can undertake their core activities without unnecessary administrative burden and meet the expectations of digital access by users.
This will mean that materials held in the collections of institutions will be available online for browsing, including through digitisation of physical materials, as long as reasonable steps are taken to ensure that the person accessing the material does so in a way that does not infringe copyright in the material.
The changes will also allow the supply of copies of collection materials for personal use as well as for research or study, subject to commercial availability if more than a reasonable portion is requested.
These updates will enhance access by Australians to the diverse range of collection materials held by our cultural institutions, particularly for those that live in rural or remote communities and in times of regional or national crisis (such as the present COVID-19 pandemic) when they cannot attend the premises of the institution in person.
Amend education exceptions
Remove the current limitations and uncertainties around the use of copyright material in classroom teaching and ensure that learning activities which can be undertaken on school, TAFE or university premises can also take place outside the premises.
This includes online lessons, provided reasonable steps are taken to limit wider access to copyright materials than that reasonably necessary.
It will also allow educational institutions, libraries and archives to rely on the 'special cases' exception, if necessary, to cover other reasonable uses of copyright material that will not impact the creator's commercial market, including in times of regional or national crisis.
Restore the exception in section 106 which, following amendments in 2012, had the unintended consequence that public schools (unlike independent schools) could no longer rely upon the exception to play sound recordings for non-curricular activities such as schools concerts.
These changes will enable educational institutions to take advantage of contemporary teaching practices and better support remote and online learning, and improve administrative efficiencies.
Streamline the government statutory licensing scheme
Update the government statutory licensing scheme to:
- extend the collective licensing arrangements with declared collecting societies to cover not only government copying but also the communication and performance (display) of copyright material
- simplify the method of determining fees payable to collecting societies and how this is paid, including removing the requirement for a sampling system (survey) to be used, and
- provide for a new exception permitting use by governments of correspondence and other material sent to government, if the use is for non-commercial purposes.
These updates will better capture the increased reliance on digital materials by federal, state and territory governments and provide for a simpler, more efficient and flexible licensing model.