ADA response to claims made by copyright rights owner groups

A statement issued by copyright rights owner groups makes incorrect claims about the Government’s proposed copyright access reforms.

A joint statement issued by copyright rights owner groups makes incorrect claims about the Australian Digital Alliance (ADA) and the Government’s proposed copyright access reforms. The ADA wishes to make clear these proposed reforms in no way seek to undermine creator rights.

This document outlines why the ADA supports the proposed reforms which will benefit both users and creators. We urge the Government to release an exposure draft for consultation. 

The proposed reforms will not impact the commercial markets of authors, illustrators or artists. 

The ADA and its members are greatly sympathetic to the difficulties faced by creators, but it is incorrect that the proposed reforms will undermine creator rights. The proposed reforms will have no impact on the commercial markets of authors, illustrators or artists. 

A major plank of the proposed reforms is to provide much-needed flexibility for cultural institutions and libraries to provide online access to users who are unable to attend the institution in person. This has long been an issue for remote users, but the COVID-19 pandemic has further highlighted the inequity, as users in areas subject to stay-at-home orders are blocked from physically attending a library to access content. The proposed reforms will clarify the legality of providing online access to these users while ensuring that rightsholder interests are protected.   

The copyright access reforms will not impact on royalties that are paid to creators by schools, universities or cultural institutions.

While it is true that the reforms would enable schools and universities to use ‘orphan works’ (e.g. works where no copyright owner can be found) and freely available internet material, without having to pay collecting societies, it is incorrect that this would cause any reduction in the amount of royalties paid to rightsholders. 

That’s because Copyright Agency does not pay this money to rightsholders. Previously, Copyright Agency had a policy of retaining this money – which amounts to millions of dollars – in a “Future Fund” which it uses to fund lobbying against fair and equitable copyright reform and to build a war-chest to fight future litigation in the event that reforms are enacted. The current balance of the ‘Future Fund’ is $11.57 million. That money has been collected from publicly funded schools and universities and used to fund Copyright Agency’s lobbying and litigation. 

In 2017, following media reports about the existence of the Future Fund, Copyright Agency decided not to continue topping up the Future Fund with unallocated licence fees. Instead, these unallocated fees are now used to “meet expenses” and “offset operating costs”. In 2019-20, Copyright Agency used $1.3m in unallocated fees to upgrade its IT system.

Clearly, no rightsholder would be harmed if schools and universities were no longer required to pay for these uses. 

Copyright access reforms will benefit the education and cultural sectors, not ‘big tech’. 

The majority of the reforms proposed by the Government will apply only to schools, universities and cultural institutions such as libraries and archives. Where exceptions apply to other users, these include individuals conducting personal research such as family historians, film makers or creators. Indeed these creators stand to benefit from the copyright access reforms by allowing them to use orphan works in their creations. 

As the Department of Infrastructure, Transport and Regional Development outlines in a summary of key parts of the reforms: “quotation in commercially driven activities, such as deriving advertising income from search snippets, is not intended to fall within this exception”. It is disingenuous to suggest that the reforms proposed by the Government will benefit ‘big tech’. 

Local content creators agree there are important steps to modernise copyright in Australia. 

Creators stand to benefit from the copyright reforms proposed by the Government. These reforms will not reduce the protections currently in place for authors, artists or creators. The reforms are narrow in scope and simply standardise the rules for offline and online access. 

The copyright access reforms proposed by the Government are exactly the type of reforms that rights owners have been calling for. Below are some of the statements made by rights owners endorsing this type of narrowly drafted, purpose-based copyright reform: 

Copyright Agency: Copyright Agency and its members are not averse to change. There are definitely aspects of the current system that could work better to deliver community well-being…. Improvements will be best delivered by sensible, iterative, practical enhancements rather than radical overhauls that inevitably result in unintended consequences. They will be delivered by technological developments and business practices that are supported by a sensible, fair regulatory environment. (CA response to Productivity Commission’s Intellectual Property draft report, 2016 – page 3)

ARIA: It is our view that a range of specific exceptions, drafted in a technology neutral fashion and consistent with the three-step test, provide much needed certainty to rights owners and content users alike and provide a superior solution to an open ended ‘fair use’ regime. (ARIA submission, Productivity Commission’s Intellectual Property issues paper, 2015 – page 12)

APRA AMCOS: It is to be hoped that with respect to this current review all parties will be able to engage productively with suggestions for reasonable and balanced reform, rather than to simply restate entrenched positions. (APRA AMCOS submission, Copyright Modernisation Review, 2018 – page 1)

The evidence is clear. The proposed reforms will not negatively impact copyright owner markets. Instead the reforms support the wider use of orphan works in the education and cultural sectors. However, delaying the reforms will cause significant uncertainty for the education and cultural sectors.