ASA submits concerns about Copyright Amendment (Access Reforms) Bill 2021

2.03.22

Last week the ASA made a submission on the Exposure Draft of the Copyright Amendment (Access Reforms) Bill 2021 to the Department of Infrastructure, Transport, Regional Development and Communications. Our central concern is that the broad drafting of the Exposure Draft will mean that some uses of copyright works which are currently remunerated under licence arrangements will be instead shifted to free exceptions.

We are concerned that ‘access’ has been conflated with ‘free access’, with potentially alarming economic consequences for creators. 

As you may recall, the Bill comprises five main reform measures (Schedules):

1. Limitation on remedies for use of orphan works
2. New fair dealing exception for non-commercial quotation
3. Update and clarify library and archives exceptions
4. Update and restore education exceptions
5. Streamline the government statutory licensing scheme

There is also a review of the technological protection measure exceptions in the Copyright Regulations.

In summary, our view is that Schedules 1 and 2, regarding orphan works and non-commercial quotation, require substantially narrower drafting. An ‘orphan work’ is a copyright work, where the author is unknown. We are not opposed to a limitation on remedies for use of orphan works but would like to see the scheme include better protections for the copyright owner, should they be later found.  

In relation to a new exception for non-commercial quotation, we want to see the purpose of the new exception better defined, and reassurance that this new exception will not be used to undermine the operation of the educational statutory licence. 

We are particularly concerned about Schedules 3 and 4. As currently drafted, the new libraries exception could disrupt an existing valuable commercial market for publishers and authors, namely the supply of digital books to libraries. Unremunerated digitisation of works must only be permitted in very limited circumstances to avoid undercutting both existing and future markets for authors’ work.

Additionally, we do not support the introduction of the new education exception 113MA which was drafted to address concerns by the education sector that the Copyright Act did not clearly cover the delivery of lessons online during the pandemic. While we agree that the Copyright Act ought to support classroom teaching, whether it be in a physical or virtual classroom, it is our view that the new drafting goes too far and would undermine current licence fees payable to Copyright Agency for distribution to publishers and authors.  

Clearly, if publishers and authors earn reduced income from copying of educational material, the likely result will be the diminishment and decline in quality Australian educational material.

In the context of perilously low author earnings, and given the fundamental importance of authors’ contribution to our education system, their fair recompense must be supported, not undermined, by legislative reform.

Lastly, we do not believe adequate consideration has been given to ICIP (Indigenous Cultural and Intellectual Property) principles in the drafting of the Exposure Draft.  

You can read our submission in full on the Department of Infrastructure, Transport, Regional Development and Communications website.

Our sincere thanks to all the authors who supported our submission with details about how important Copyright Agency payments are to creators.

The ASA will continue to strongly represent your best interests to government. We understand the challenges and complexities of earning a living wage as an author and are committed to speaking up for your fair remuneration.