Author: Government recordkeeping

The Australian Law Reform Commission has released a discussion paper on Copyright reform. It is available here.

This discussion paper makes concrete recommendations as to how Copyright should be reformed. In this blog post we describe how the changes proposed are intended to affect recordkeeping in government agencies.

All government exceptions for the use of copyright material would be abolished. Instead, government use would be judged under a general 'fair use' provision. The ALRC proposes four non-exclusive fairness factors that are to be used to judge if a use is 'fair use'. These are:

  • purpose and character of use
  • the nature of the copyright material used
  • the amount of the material used
  • the effect on a potential market for (or value of) the material.

The ALRC then defines a set of illustrative uses or purposes that may (or may not) be fair use (these are broadly equivalent to the exemptions in the current Copyright act). Two that are specifically relevant to government use are:

  • research or study
  • public administration.

The paper states that 'uses essential for the proper conduct of administration [...] should be fair use', and that the purpose and character of the use would be most relevant when determining if a specific government use was fair use. Uses that contribute to efficient and open government are more likely to be fair, while those that engaged in for commercial purposes or have a significant impact on the market for a commercial purpose are less likely to be fair.

The public administration use would apply to all three tiers of government (Commonwealth, State, and local), unlike the present situation where local government is not protected by the Crown exemption, and State and local governments are not protected for FOI purposes or for other situations where they are required to publish information.

It is also proposed that the government would be able to use other fair use illustrative purposes. Notably it may be fair use to use copyright material for research or study, as it would be for an individual or a corporation. Under the current copyright law, it is not clear if the government can use the other copyright exemptions.

For uses that are not 'fair use', the ALRC proposes that 'extended collective licensing' would be available. Under this model, the government would be able to license copyright material from a collecting agency even if the copyright holder was not a member of the collecting agency. However, copyright holders would be able to exclude themselves from this extended collective license.

To come down to tin-tacks, the following recordkeeping/governance uses are likely to be fair use under the proposed changes:

  • normal recordkeeping/administration actions (e.g. digitising incoming correspondence and electronically filing it)
  • copying a reasonable amount of material for the purposes of researching or developing policy
  • publishing material required by statute (or good governance) provided there was a public good, the use was non-commercial, and the market for the material was not affected
  • releasing information under FOI, again provided the market for the material was not affected.

Of course, this is just a discussion paper. The eventual ALRC recommendations may be considerably different, and any changes to the law may differ yet further.