By Paul Armarego, Special Counsel and Siobhan Ingall, Associate 

The Minister for Communications, Cyber Safety and the Arts, the Hon Paul Fletcher MP announced on 13 August 2020 copyright reforms to provide a more flexible and adaptable framework to better support the needs of Australians to access content in an increasingly digital environment.

The proposed changes follow two years of extensive industry consultation and finalise the Government’s response to the copyright recommendations made in the Productivity Commission’s 2016 Intellectual Property Arrangements Report.

Copyright law seeks to create an appropriate balance between competing interests. It is concerned with encouraging the creation and dissemination of works of art and intellect, but it also acknowledges that there are appropriate limits to the rights of copyright holders. Maintaining the correct balance is always a difficult task and this is even more so in the digital age. The reforms seek to maintain this balance and are very welcome given the increasing importance of the digital society.

The proposed copyright access reforms include five main measures:

1. introduction of a limited liability scheme for the use of orphan works;
2. a new fair dealing exception for non-commercial quotations;
3. to simplify and update the library and archives exemptions;
4. to amend the education exceptions; and
5. to streamline the Government’s Statutory Licensing Scheme.

Introduction of a limited liability scheme for use of orphan works

The reforms will allow for the use of copyright material where:

1. a reasonably diligent search has been undertaken, but the copyright owner cannot be identified or located (orphan works); and
2. as far as is reasonably possible, the work has been clearly attributed to the author.

There will be more work relating to what may be considered to be a reasonably diligent search and it is expected that relevant sectors, such as the cultural educational and broadcasting sectors, and creative industries will develop guidelines around what would amount to a reasonably diligent search.

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. If it is not possible to reach an agreement the terms will be as determined by the Copyright Tribunal.

If reasonable terms are not complied with the copyright owner will be able to seek an injunction against future use of the orphan work.

The benefits of these reforms are that orphaned copyright material will be opened up to be used in modern creative endeavours and there will be access to a larger collection of works in public collecting institutions.

New Fair Dealing Exception for Non-Commercial Quotations

The reforms will introduce a new fair dealing exception for quoting copyright material where:

1. the quotation is for non-commercial purposes, or the use is of immaterial commercial value to the product or service in which it is being used;
2. the use is by cultural and educational institutions, Governments and other persons engaged in public interest or personal research; and
3. the quotation is compatible with fair practice having regard to standard fairness factors.

This new exception will reduce uncertainty and administrative burden for educational institutions, museums, Government agencies, researchers and academics when they quote words from a book, a part of a piece of music or use a visual image taken from a work of art.

Amendment of  the Library and Archives Exceptions

The library and archives exceptions will be simplified and updated to apply equally to all copyright materials and to be technologically neutral. Cultural institutions will be able to undertake their core activities without unnecessary administrative burdens while meeting the increasing expectations for digital access by users.

Materials held in the collections of institutions will be available online for browsing, including through digitisation of physical materials provided that reasonable steps are taken to ensure that the person accessing the material does so in a way that does not infringe copyright in that material.

The reforms will allow the supply of copies of collection materials for personal use and for research or study, subject to commercial availability, if more than a reasonable proportion of the work is requested.

This will enhance access to the materials held in cultural institutions for Australians living in rural or remote communities or those who are otherwise unable to attend in person due to COVID 19.

Amendment of the Education Exceptions

The current limitations and uncertainties relating to the use of copyright material in classroom teaching will be clarified to ensure that learning activities which can be undertaken in an education premises can now also take place outside the premises. This has particular application to online lessons provided reasonable steps are taken to limit wider access to copyright materials.

It will allow educational institutions, libraries and archives to rely on the “special cases” exception to cover other reasonable uses of copyright material that do not impact on the creator’s commercial market, including in times of national or regional crisis such as COVID 19 when adapting to contemporary teaching practices for remote or online learning becomes paramount.

The reforms will restore the exception in section 106 of the Copyright Act which, following the amendments in 2012, had the unintended consequence that public schools (but not independent schools) could no longer rely upon the exception to play sounds recordings for non-curricular activities such as school concerts.

Streamline the Government’s Statutory Licensing Regime

The reforms will update the Statutory Licensing Regime to extend the collective licensing arrangements with declared collecting societies to cover not only Government copying but also their communication and performance (display) of copyright material. The reforms will also simplify the method of determining fees payable to collecting societies and how these are paid, including removing the requirement for a sampling system (survey) to be used. The reforms will also provide for a new exception permitting use by Governments of correspondence and other materials sent to Government if the use is for non-commercial purposes.

These reforms will better capture the increased reliance on digital materials by all levels of Government and provide for a simpler, more efficient and flexible licensing model.

The Government expects to release the draft legislation and further details of the reforms and later this year and will provide further opportunity for stakeholder consultation.

This article is not legal advice, please contact us for more specific information or advice in this area as required.