Australian Law Reform Commission



ALAA Australian Literary Agents’ Association

342 St Georges Road, North Fitzroy, Victoria, 3068

Phone: 0424 505 608 or 03 9489 4030

Email:jacintadimase@.au _____________________________________________________________________

To:

The Executive Director

Australian Law Reform Commission

info@.au

ALAA response to ALRC Discussion Paper:

The Australian Literary Agents’ Association founded in 2003, is a voluntary body, which provides a public presence and point of contact for Australian literary agencies. Currently ALAA has 17 members representing more than 1000 published and emerging Australian writers.

It is ALAA’s position that the existing exceptions and statutory licences in the Copyright Act 1968 are adequate and appropriate and that they serve the intent and purpose of the Act:

‘to promote creativity and innovation by providing exclusive economic rights to copyright owners and to promote the social benefits that arise from a free flow of knowledge and expression’.[1]

ALAA rejects the repeal of the current effective and fair Australian educational statutory licence system and the proposed broadening of the Fair Use exceptions.

The primary purpose of copyright is to provide an incentive for people to produce new works for the benefit of society as a whole. The incentive is created by the opportunity to be paid when other people use and disseminate those works and by the works being afforded attribution and protection from copying and derivation without the permission of the copyright owner.

In order to achieve this objective, provisions and exceptions to the Copyright Act such as statutory licence and the limitations on “fair use” should be preserved. These protections should not be viewed as “additional rights” for copyright owners, they should be regarded as necessary refinements that allow the Copyright Act to serve its purpose.

Challenges to strong copyright protections

In copyright law, the objective of encouraging the creation of new works is constantly challenged by those with the objective of making material available for socially desirable purposes such as research and education as well as by those who regard strong copyright protection as anti-competitive.

Finding the balance between competition (possibly delivering greater choice to the market and driving prices down) and encouraging investment and innovation (in the case of Australian publishing, creating incentives for, and encouraging a healthy local market for Australian authors and their works) is a constant challenge.

However, ALAA believes that the current statutory licence system meets these challenges – it’s a system that is fair for educators and fair for content creators

Our statutory licence system is unique in the world. For a minimal cost, teachers can source, copy and share an incredible range of material without worrying about copyright permissions. This means Australian students have unparalleled access to high quality educational resources – and at the same time, our creators earn income which helps to drive the creation of innovative, quality educational content.

Potential repercussions of a repeal of the statutory licence

The repeal of the statutory licence will mean a higher administrative burden for teachers and schools, which currently do not have to check whether what they are copying and sharing requires copyright permission or payments. It will also create an environment of litigation as authors, publishers, artists, photographers and others are forced to pursue copyright breaches.

Without the statutory licence the industry will shrink, incomes will be eroded and the education system will be faced with diminished access to quality local content, which will be increasingly replaced by foreign material of a more generic nature.

Potential repercussions of a broadening of the Fair Use exceptions

Just because a use falls into one of the categories of illustrative purpose does not mean that such a use will necessarily be fair… In every case, the fairness factors must be explored, and the results weighed together, in light of the purposes of copyright.



What is not fair is shifting the burden of assessing whether a use is fair to teachers, government employees, students, people with disabilities, and copyright owners.

Most Fair Use provisions around the world list the same four fairness factors. These are also factors that appear in the current Australian exceptions for fair dealing for the purpose of research or study.[1] The four fairness factors are:

(1) The purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes;

(2) The nature of the copyrighted work;

(3) The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) The effect of the use upon the potential market for or value of the copyrighted work.

Despite the fact that many copyright cases are the subject of lengthy judgements and expert reasoning by copyright professionals and lawyers in the Federal and higher courts, the ALRC is proposing that other illustrative Fair Use provisions be introduced to the Copyright Act. In addition, these changes will require copyright users and owners to be the “judges” of what constitutes fair use including the most the most debated and contentious fairness factor: The amount and substantiality of the portion used in relation to the copyrighted work as a whole.

Content users would need to assess whether their use of the work falls under ‘Fair Use’ (and is thus free), or whether they needed to negotiate a separate permission or licence from the rights holder.

 

For content creators and publishers, it would mean attempting to monitor and/or deal with infringements as well as negotiate and administer any licensable uses.

A repeal of the statutory licences for education and government, and people with disabilities will result in the following implications and consequences:

reduction in licence fees to authors, artists and publishers

increased administrative burden for teachers

increased administrative burden for government employees

reduction in content available to teachers

reduction in content available to government employees

increased administrative burden for people assisting the disabled

reduction in content available to be converted to accessible formats

increased administrative burden for content creators to manage licensing arrangements

Further, the adoption of (additional) Fair Use exceptions that allow the use of copyright content for any purpose, if the use is “fair” will result in the following implications and consequences:

Unfair advantage to potential licensees with greater bargaining power than content creators

Uncertainty that will require litigation to resolve

Uncertainty that will discourage legitimate use of content

The current system works very efficiently and quietly with very little administrative requirement from literary agents and even less from the creators we represent.

However, should the proposed changes be adopted many creators and the small businesses that represent and publish their work will be crushed under the weight of the additional administrative burden and potential legal costs. There will be no compensation for loss of income; or for the time it takes me, for example, to administer licensing arrangements or to track and deal with licensing breaches.

Australian authors, journalists, artists and publishers are using their skill, time, money, and effort to produce creative works of a high standard that are recognised throughout the world.

Without the statutory licence and the limitations on Fair Use exceptions, the Australian publishing industry will shrink, incomes will be eroded and the education system will be faced with local content of diminished quality, which will be increasingly replaced by foreign material of a more generic nature.

The Australian Literary Agents’ Association and the authors we represent urge the ALRC to preserve the existing exceptions and statutory licencing in the Copyright Act.

Yours sincerely,

Jacinta di Mase

Secretary, Australian Literary Agents’ Association

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[1] Attorney-General ‘s Department, ‘Fair Use and Other Copyright Exceptions: An examination of fair use, fair dealing and other exceptions in the Digital Age’, Issues Paper, (May 2005).

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