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Copyright laws make creative careers possible, enabling authors and illustrators to benefit from their creative work. The Copyright Act has been the subject of reform discussions for a decade and the ASA’s role is to represent the interests of authors and illustrators in all copyright policy consultation.

The ASA asks the Government to maintain a robust copyright regime and approach new limitations and exceptions to copyright cautiously, with an appreciation of the precariousness of creators’ ability to earn a living.

We believe licensing (including statutory licensing) is the preferred method of access to copyright works, as it preserves remuneration for creators and facilitates access for users. A licence is simply a permission from the owner of copyright and allows creators to set conditions on use, such as an appropriate fee in exchange for the right to reproduce the work over a certain period of time and in certain territories. In contrast, creating new exceptions to copyright infringement erodes creators’ ability to monetise their work. Access to copyright works, which is essential in our society, must not be conflated with free access.

In recent years, the ASA has made submissions or published statements on the following:

  • Fair Use
  • Safe Harbour Schemes
  • Copyright Access Reforms
  • Internet Archive

Fair Use

Australian law sets out a series of clear exceptions to copyright infringement known as ‘fair dealing’. Fair dealing exceptions allow certain use of copyright material for the purposes of review or criticism, research or study, parody or satire, reporting the news, judicial proceedings, legal advice or providing access to persons with a disability. Meanwhile, under our statutory licensing scheme, schools, universities, businesses and libraries pay a small fee to publishers and authors (via Copyright Agency) to copy sections of their work without seeking permission.

However, in a report published in November 2016, the Productivity Commission recommended to the Australian government that Australia’s Copyright Act should replace Australia’s fair dealing provisions with a US legal principle known as ‘fair use’. The ‘fair use’ principle allows individuals and enterprises to use copyright material without permission, provided that the use is ‘fair’. The legislation sets out four ‘fairness factors’ to guide behaviour.

In the US, ‘fair use’ has enabled large enterprises to use copyright material for free. A PricewaterhouseCoopers audit into the introduction of ‘fair use’ in Australia forecasted the resulting increase in litigation costs to producers and artists at $133m a year.

We believe the introduction of ‘fair use’ in Australia would result in a loss of remuneration and control for creators, huge legal uncertainty given the vagueness of the doctrine and potentially undermine respect for copyright.

Australia’s creative industries, the International Publishers Association, the International Authors Forum, over 250 individual authors, 20 publishers, the ASA, Copyright Agency, the Australian Publishers Association and the Australian Booksellers Association all argued against ‘fair use’ and we are pleased the Government has not taken up the recommendation of the Productivity Commission to adopt ‘fair use’ in our Copyright Act.

Safe Harbour Schemes

The ASA supported the introduction of the Copyright Amendment (Service Providers) Act 2018. It expands the Safe Harbour Scheme to organisations assisting persons with a disability; public or parliamentary libraries; bodies administering archives; key cultural institutions and educational institutions. A safe harbour scheme is intended to provide protection from liability for copyright infringement in certain circumstances.

Along with the creative sector, the ASA objected to the extension of Safe Harbour to commercial platforms such as content aggregators, search engines and social media platforms, and we were pleased the Act did not go this far.

Copyright Access Reforms

In February 2022, the ASA made a submission in response to the Exposure Draft of the Copyright Amendment (Access Reforms) Bill 2021.

Our central concern iss that the broad drafting of the Bill 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.

To ensure the ongoing incentivisation of copyright creation, the quality of educational materials and the health of our creative economy, the ASA submits that efficient licensing regimes are preferable to new free exceptions.

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

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 here.

Internet Archive

The Internet Archive is based in the United States. It purports to be an online library with the stated mission of ‘universal access to all knowledge’. We consider the Internet Archive to facilitate copyright infringement; it operates by scanning physical books (usually donated) and then making those digitised copies freely available for lending to users all around the world, including Australia. By undertaking this activity without either seeking permission or providing fair payment to the creators, Internet Archive is undermining legitimate ebooks sales and standard library practices. (Public libraries pay publishers a retail price for either a print book or ebook licence, a portion of which is on-paid to authors/illustrators.)

We have no objection to the sharing of any out-of-copyright works, for which permission is no longer necessary, but object to the unlicensed reproduction of in-copyright works. Internet Archive has been roundly condemned by international publishers and authors’ groups, and a copyright infringement lawsuit has been brought against them by US publishers Hachette, Penguin Random House, HarperCollins and John Wiley.

Given how tremendously difficult it is to earn a living from writing, the ASA is concerned about any practice which could damage revenue for our creators.

We’d like to remind authors and illustrators that if you find your book freely available on the Internet Archive’s Open Library without the permission of you or your publisher or distributor, you can try to have your books removed by emailing the Internet Archive Copyright Agent at: [email protected] and identifying:

  • your copyrighted work;
  • an exact description of where the material about which you complain is located within the Internet Archive collections;
  • your address, telephone number, and email address;
  • a statement by you that you have a good-faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
  • a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the owner of the copyright interest involved or are authorized to act on behalf of that owner; and
  • your electronic or physical signature.

How you can help

If you haven’t already, consider joining the ASA. The ASA’s lobbying efforts in Canberra would not be possible without our members’ support. The more voters we can show we represent, the clearer our voice will be heard by the politicians with the power to make change.

Alternatively, if you’re already a member or prefer to contribute without joining the ASA, you can donate to our Endowment Fund. Donations to the Endowment Fund go directly towards supporting the ASA to lobby and campaign for the rights and professional interests of authors and illustrators.