Use under an implied licence

14.42 Government use of material open to public inspection or on official registers, incoming correspondence, free websites and of other governments’ material are all uses where it might have been thought that a licence for government use could be implied. However, in Copyright Agency Limited v New South Wales (‘CAL v NSW’), concerning the registration and dissemination of surveyors’ plans, the High Court held that no implied licence to use the plans existed. A licence ‘will only be implied where there is a necessity to do so … such necessity does not arise in the circumstances that the statutory licence scheme excepts the State from infringement’.^[61] It is not clear how far this judgment affects uses beyond the particular uses discussed in the case. Gilchrist has commented

It is dangerous to generalize from the circumstances surrounding the lodgement of these survey plans … more broadly to copyright works received by government in other circumstances, although the decision of the High Court has wider implications for the digitalisation of registration systems and the wider needs of government to disseminate such information.^[62]

14.43 The following discussion considers government uses of material open to public inspection, incoming correspondence, free websites and other government material, and how these uses might be treated under a fair use exception.

Material open to public inspection

14.44 Some statutes require the registration or deposit of documents with the purpose of making those documents publicly available. For example, planning and environmental protection laws often require the proponent of a development to submit a development application, which may include plans by surveyors and architects and environmental impact statements.^[63] The purpose of the laws is to facilitate public participation in planning processes,^[64] with the expectation that this will improve decision making.

14.45 Material open to public inspection often contains third party copyright material, and copying this material or making it available online raises similar issues to disclosure under FOI laws. Commonwealth statutes requiring documents to be made available can create immunity for Australian Government agencies. However, state and territory governments cannot take advantage of immunity and may be liable for payment under the statutory licence. Local governments have no immunity and no statutory licence, and risk copyright infringement when providing public access to documents.^[65]

14.46 Several government agencies submitted that government agencies should not have to remunerate copyright owners when using material as required by a statute.^[66] The Department of Defence was particularly concerned about ‘the potential for the Commonwealth to incur significant costs in performing its legislated or regulation required tasks’. It suggested that there should be an exception to allow governments to use material ‘for the purpose for which it was provided’, but should exclude any commercial uses of the material.^[67] IP Australia called for an exception that would allow it to publish the literature relied upon in its patent decisions (including journal articles, books and other technical material) on eDossier. This use is not required by statute, but IP Australia suggested that this would enhance transparency as ‘the documents help explain the reasons for IP Australia’s decisions, and contain the evidence on which decisions to grant or refuse rights are based’.^[68]

14.47 Copyright Agency/Viscopy took a slightly different approach, suggesting that all government uses of copyright material should be by way of the government statutory licence (rather than by way of an exception). The extent to which remuneration is required for government uses of material open to public inspection would be a matter for negotiation between the parties.^[69]

14.48 The guiding principle identified for this Inquiry regarding wide dissemination of material has particular weight regarding government activities that are intended to serve the public benefit. However, the principle regarding maintaining incentives to the creation of works appears to have less application in relation to material open to public inspection. Ordinarily, the owner of the copyright in the plan or report has been remunerated by the client, and is not motivated by remuneration for government use. Requiring payment for government use does not seem likely to have any impact on the creation of these materials.^[70]

14.49 The ALRC considers that the proposed exception for fair use is the appropriate way of dealing with government uses of copyright material pursuant to a statutory obligation. Uses that are not fair should be dealt with by way of voluntary licensing arrangements. The fairness factors would assist governments and copyright owners in determining whether the particular use is fair. This approach creates a flexible and principled framework that can properly balance the interests of open government and the rights of copyright owners.

Use of incoming correspondence

14.50 Correspondence to government may be scanned into an electronic file for efficient storage and to provide access to government officers at distant locations. These copies are treated as remunerable by collecting societies, despite the likelihood that the author of the letter has given implied consent for the copying.^[71] The Victorian and Tasmanian Governments suggested that such uses should fall within a fair dealing or fair use exception or otherwise be excluded from payment.^[72] Other government submissions said the Copyright Act should be amended to reverse CAL v NSW by including a definition of an implied licence,^[73] or clearly indicating that the existence of the statutory licence should not be taken into account when determining whether an implied licence exists.

14.51 The ALRC considers that government use of incoming correspondence would be likely to fall under a fair use exception.

Freely available content

14.52 Some material is made available on websites with a Creative Commons licence (a licence allowing copying and distribution on liberal terms) or with an invitation to print the material. In these cases, the owner’s purpose is to share the material and no remuneration is expected.^[74] A number of government submissions were concerned that the effect of CAL v NSW is that the Crown cannot rely on the implied licence to use material that is evident on some websites.^[75]

14.53 Governments argued that ‘use of copyright material … offered freely by copyright owners, particularly on websites, should not be remunerated under the statutory licensing scheme’.^[76] The Tasmanian Government suggested that the Act should be amended to clarify that there is an implied licence for use of freely available material on websites ‘to be used for personal, non-commercial purposes, or for use by government for the public benefit’.^[77]

14.54 Copyright Agency/Viscopy acknowledges exclusions for ‘government material made available under licences such as Creative Commons licences’.^[78] Copyright Agency’s Distribution Rules indicate that payment will not be made to rightsholders where ‘an “open” licence such as a Creative Commons licence’ has been used.^[79] As payment is not required from the education sector for this material,^[80] it may be that payment is not required from governments.

14.55 The ALRC considers that governments should be able to freely use material placed on websites where the owner has no commercial purpose. This would place governments in the same situation as individuals and businesses, and would respect the intentions of the copyright owner.

14.56 However, Screenrights pointed out that audio-visual material made freely available on the internet is often there for a commercial purpose, for example, in order to attract advertising or for cross promotional reasons.^[81]

14.57 If governments are to use free material without remuneration, it will be necessary to distinguish between material that is made freely available for a commercial purpose and material that is made available purely for communication and dissemination. Where there is a Creative Commons licence or other express statement that remuneration is not required, then this distinction will be more easily drawn. In other cases, implications are necessary. These distinctions would be best made via a fair use exception and consideration of fairness factors, rather than by attempting to define in the statute what ‘free’ material may be used.

Government use of government material

14.58 A final form of use that may be affected by CAL v NSW is government use of other government content. The Tasmanian Government has advised, for example, that:

fees have been collected from the Tasmanian Department of Education for copying brochures from the Tasmanian Department of Health in relation to control of head lice.^[82]

14.59 This is unsatisfactory as the government owner of the copyright did not expect or require remuneration for the use of the material, and the transaction costs of moving money from one arm of the government to another do not appear to be warranted. In the absence of the statutory licence, an implied licence for a government agency to use another government agency’s material might be recognised, but CAL v NSW may exclude this approach.

14.60 The Tasmanian Government called for legislative change to ensure that these fees are not levied. Alternatively, government material could be published under Creative Commons licences, which would mean that they would be excluded from the calculation of licence fees.^[83]

14.61 If the Copyright Act contained a fair use exception, most government use of other government material would fall within these exceptions.