The statutory licences provide guaranteed access to content, without the copyright clearances otherwise required, for socially desirable purposes such as education. Initially introduced in the early 1980s, and updated for the digital environment in 2000, they have enabled use of content with minimal compliance requirements and provided financial support for the production of new content.
Copyright Agency is appointed by the Australian Government to manage statutory licences for the education sector, government sector, and people with a disability.
Reading the Discussion Paper, it seems that the ALRC has fundamentally misunderstood some aspects of how things works currently, and some of the likely consequences of its proposals.
The case for repeal
The ALRC anticipates that the statutory licences would be replaced with voluntary licensing arrangements offered by individual content creators and/or by rights management organisations such as Copyright Agency. It says that voluntary licences ‘whether direct or collective – are less prescriptive, more efficient and better suited to a digital age’.
Repeal of the statutory licences has to be considered together with other ALRC proposals that affect voluntary licensing. In particular, new exceptions allowing ‘free’ use of content will reduce the scope for licensing solutions.
‘Better suited to a digital age’
The ALRC seems to have accepted at face value some of the ‘rhetorical’ statements made by the education sector. In particular, it says that the ‘technical’ copies allowed by statutory licences must be ‘strictly accounted for and paid for’. They don’t, as a matter of both law and practice. As a matter of law valueless copies do not create a payment liability, and they are not ‘accounted for’ as a matter of practice.
The statutory licences managed by Copyright Agency are ‘technology neutral’: they apply to all forms of reproduction and communication of content acquired from any accessible source.
The ALRC’s recommendation would apply to offline as well as online use content, including printing, scanning and photocopying. Most of the educational use of content is still non-digital. This is not addressed at all by the ALRC.
The ALRC asserts that repeal of the statutory licences would result in more ‘efficient’ arrangements, without saying what it thinks this means. It seems to have both over-estimated the benefits and under-estimated the costs of its proposal compared to other options.
In particular, it is not clear that the ALRC understands that:
- Some content may not be available at all under a voluntary licence (e.g. the UK licence for schools excludes all workbooks, workcards, assignment sheets, maps and charts, as well as specific works excluded by the rights holder);
- Some content may be available under licence only if certain conditions are met, such as purchase of a specified number of originals (e.g. this is a requirement of the AMCOS licence for copying of sheet music in schools);
- An increase in the number of licensing arrangements means managing a variety of different licence conditions and reporting obligations (for all licensees, not just those participating in sample surveys under the statutory licences);
- Other new compliance requirements would likely include checking excluded/included content and uses, checking that the source content is non-infringing, and including acknowledgement of the source of the content and the licence on all copies and communications; and
- The uncertainty arising from the proposals may require litigation to resolve (as it has in Canada).
Who asked for repeal of the statutory licences?
There was a clear and united call for repeal of the education statutory licence by those who negotiate licence fees with collecting societies on behalf of the education sector.
The views of teachers, the primary beneficiaries of the education licence, are absent from the Discussion Paper. Current teaching practices in Australia encourage the use of a wide variety of content from an array of sources, print and digital. Teachers spend significant time finding and assessing content, a task made even more complex by changes to the curriculum. Repeal of the statutory licence would seem to only add to the challenges they already face.
Also absent was a clear call for repeal of the statutory licences for governments and for people with a disability (visual impairment or intellectual disability).
Some governments sought some changes to the way the government statutory licence is currently administered, but none asked for removal of the privilege that entitles them to use any content for government purposes. That entitlement applies even if the content is available for purchase, or the use is otherwise not ‘fair’.
It was widely assumed that the ALRC was not reviewing the statutory licence for the visually impaired, because the terms of reference expressly exclude duplication of work being undertaken on ‘increased access to copyright works for persons with a print disability’. The licence allows for equitable remuneration, but content owners have never sought it. On the contrary, they have sought to enhance the provisions of the statutory licence by establishing a ‘masters catalogue’, and arrangements for the delivery of accessible-format files.