02/02/2022

The Australian Publishers Association is encouraging members to make submissions in response to the Federal Government’s latest proposed changes to Copyright.

Following discussions with the Copyright Agency, the Australian Society of Authors, and key bodies in other creative sectors, the APA recommends that members should push back against some of the arguments and detail in the draft copyright reform legislation.

About the Copyright reforms

The Minister for the Arts, the Hon. Paul Fletcher, released an exposure draft of the Copyright Amendment (Access Reforms) Bill 2021 in late December last year, along with a discussion paper on the Department’s website.

The Minister previously indicated that he would only move forward on the basis of a consensus position between copyright owners and copyright users. Accordingly, the APA, the Copyright Agency and our allied interests have been surprised by:

• the process for change
• some of the ‘principles’ that are have been abandoned in the draft
• a host of problematic details

There seems to be a significant distance between the stated aims and realities of the draft, with the Minister Paul Fletcher acknowledging that:

“Australia’s copyright system underpins our creative economy and these reforms seek to provide clear and reasonable access to copyright materials, while maintaining the incentives and protections for content creators.”

Yet it is clear that the current draft – if rendered into law – would likely have significant negative effects on the interests of publishers. This leaves a question mark over the drafters’ understanding of the implications.

With an election due by May 2022, it is unlikely any proposed legislation will reach the House of Representatives in this term. Instead, at this stage the APA aims to raise red flags about the problems in the exposure draft. It is hoped these will give any (new or returning) government pause about proceeding.

There is an interest in ensuring copyright creators will be included in discussions of a further revised draft.  Currently, the draft – particularly with  provisions relating to libraries and archives – suggest some shortcomings in the drafters’ understanding of the publishing industry and its practices. Other sectors – including film and TV, music and new media – make similar observations about a lack of understanding of their creative industries.

Key risks for creators

The Copyright Agency, the ASA and the APA have identified three key risks for creators, centred on proposed new exceptions:

• exceptions for education use, which are drafted very broadly and will possibly undermine licensing arrangements
• exceptions for governments, which seem to be solely related to cost-cutting and not about extending access
• exceptions allowing owners of collections (which include entities in the education, government and private sectors) to make material available on the internet – including appropriating the right to produce electronic versions/editions of materials published elsewhere

Support for the draft

The education lobby approves of the proposed draft and has already begun to advocate for its take-up.

The APA and the ASA will meet with ALIA to gauge library support, and the rationale for the provisions libraries have sought.

Overall, the draft is indicative of a continuing drift in the public discourse about copyright towards greater user “rights”. The language around the draft – describing current copyright law as “outdated”, and the proposed changes as a way of taking advantage of new technologies – suggests the drafters have bought into a pro-user position where additional access should be provided without additional costs to users or to the government as the purchaser.

As the Copyright Agency states, copyright reform is not a cost-cutting exercise. It is about creating a market for content and facilitating priced-access. It should not be not be about making material free for users.

Making a submission

The Department of Communication’s response page takes both short statements from respondents and longer attachments. Responses are due by 5pm (AEDT) Friday 25 February 2022. 

The APA will contact member company CEOs with talking points which can be reworked for your submission.

You are encouraged to use the talking points to reflect any implications the proposed changes would have on your specific publishing enterprise. We believe submissions from trade and education publishers will play a useful role in advising the government.

For further information, please contact Stuart Glover, APA Policy and Government Relations Manager, via [email protected].