Fair dealing exceptions

14.20 There is currently disagreement and uncertainty about whether governments can rely on the exceptions in the Copyright Act.^[20] For government, perhaps the most important exception is the fair dealing exception for the purpose of research or study.^[21] The Tasmanian Government told this Inquiry that ‘a large part of government copying of third party works is undoubtedly for the purpose of research for policy development and good governance’.^[22] Government agencies indicated that there are other exceptions of importance to governments, such as: labels for containers of chemicals (s 44B) and back-up copies of computer programs (s 47C). Clarification is required as to their availability.^[23]

14.21 John Gilchrist has explained that two views are possible.^[24] One construction of the statutory licence scheme in pt VII div 2 is that governments cannot rely upon fair dealing exceptions and must instead adhere to the requirements of the licence.^[25] Governments have advised that the declared collecting societies have taken this view,^[26] and that government arrangements with collecting societies do not exclude payment for copying that could be fair dealing under pt III div 3.^[27]

14.22 The Victorian Government said that this approach ‘puts the State at a disadvantage compared to most non-government copyright users, such as corporations and individuals, who are entitled to rely on the exceptions to infringement by not remunerating copyright owners for specified copyright acts’.^[28]

14.23 An alternative construction is that governments, like individuals and corporations, can rely on the fair dealing exceptions. In this case the statutory provisions only come into play when government use goes beyond that permitted by the fair dealing exceptions.^[29] Gilchrist suggested that this is ‘the better view’ of the relationship between the fair dealing and the government statutory licensing provisions.^[30] This approach is supported by Professors Enid Campbell and Ann Monotti, by government agencies and by rights holder SAI Global.^[31]

14.24 Copyright Agency/Viscopy submitted that all government copying is covered by the statutory licence, but some of it is ‘zero rated’ or not remunerable. It said that when considering whether governments should be able to rely on the fair dealing exceptions, compliance costs should be taken into account: ‘reliance on “free” exceptions necessarily requires closer attention to the requirements of the exception, with associated compliance costs’.^[32] Copyright Agency/Viscopy appears to consider that uses that would be free to a non-government user are remunerable for government, but that, overall, the statutory licence is a less expensive option. It also proposes that fair dealing exceptions should not be available to government (other institutional and corporate users) unless the use is ‘for a socially desirable purpose’ that is ‘not covered by a licensing solution’.^[33]

14.25 Gilchrist points out that the Australian Government’s 2003 agreement with Copyright Agency Limited exempted material copied for judicial proceedings and giving professional advice, but expressly excluded reliance on the other exemptions, such as research or study.^[34]

14.26 The Copyright Act should be clear on whether governments can rely on the same fair dealing exceptions as individuals and non-government organisations. The disagreement between governments and the collecting agencies about reliance on fair dealing exceptions has been a major barrier to an agreement on a survey method and equitable remuneration, as is discussed in Chapter 7.

14.27 The fair dealing exceptions are intended to serve the public interest by ensuring that socially beneficial uses, such as research and study, are not impeded. It can be argued that this reasoning applies to government in the same way as it does to individuals. While governments are seen as having ‘deep pockets’, requiring remuneration for all uses could result in governments limiting their uses in a way that would not be in the public interest.

14.28 The Franki Committee said that governments ‘should be entitled to copy a work in the circumstances where a private individual would be entitled to copy it without obligation to the copyright owners’.^[35] The ALRC agrees that governments should not be required to pay for uses that are free to others. If the statutory licence for government use is abolished, as proposed in Chapter 6, there should be no doubt that any exceptions in the Copyright Act that are available to individuals are also available to governments.