The Copyright Agency Ltd dished out $6 million last week to 1600 Australian writers and other copyright owners. That was the takings for all the photo-copying done in Australia’s educational institutions. It was a triumph of pragmatism over artificial legalism. The result, by and large, was justice for Australian writers. They got a financial return for the use of their work.
It has taken a long time, but at last Australian law and administration has caught up with the photocopier. The system works as follows. Australian educational institutions have a right to copy whatever writings they like. But they must pay. It is clearly idiotic to expect each institution to count up precisely which authors were copied and pay them three cents a page. So, authors allow the Copyright Agency Ltd to collect it for them. CAL does this by sampling. It took 60,000 samples from 179 educational institutions last year. Educational institutions must allow the sampling and they must make note of the total amount of copying done. Based on the sample and the totals, CAL pays the authors.
It is a very effective administrative scheme, and a very unusual one for a legal system that equates justice with individual rights. A similar collectivism scheme was proposed more than a decade ago for records. A levy on audio tapes was proposed and the money would go to copyright owners of recorded music based on record sales.
Everyone knows that most audio tapes are bought with the sole purpose of ripping off music on records and now CDs. But the proposal initially failed. What about the clergyman who used audio tape to record his sermons; why should he (and now she) have to pay a copyright fee which would end up in the hands of purveyors of the often irreligious electronic cacophony that the youth of the day called pop music? Thus the individual rights of the few were defeated the justice of a scheme that would reward the producers of music for their intellectual effort.
The black-letter law of the Copyright Act, with its emphasis on individuals suing for infringement, is a pitiful weapon against the onslaught of copying technology.
Enter the photocopier. Educational institutions were given the right to copy in 1984, but there was no sampling scheme, and the record-keeping required by educational institutions make the thing a fiasco as predicted by all sensible commentators at the time.
In 1989 (by the time smart photocopiers could copy and collate whole books in superb quality in minutes and double-decked audio and video machines with excellent sound had made a mockery of copyright) the law was changed to permit the sampling technique outlined above. It provided also for a levy on audio tapes so royalties for domestic taping could be levied and paid, according to sampling to copyright owners. The tape manufacturers have challenged the scheme in the High Court and we await judgment.
Meanwhile, video and computer-program copying goes on unabated. Computer programs are excluded from the scheme under which educational institutions have a right to copy provided they pay a fee. The exclusion is dumb in a country that aspires to be clever and teach its kids lots of things about computers. Of course, the schools should get computer programs at a reasonable fee which is lower than the market rate.
Two sorts of photocopying, however, remain unrecompensed: government and media monitoring. They are closely related because a lot of government photocopying is from newspapers and magazines.
Government departments have a right to copy, but they must pay. Media-monitoring companies have no right to copy without permission. The Attorney-General’s department and CAL are at an advanced stage in negotiating a rate and sampling method for all government departments, but for several years departments have been breaching the law by copying without payment.
Media copying is tricking. A section in the 1968 Act (long made inappropriate by new technology) gives media owners copyright of the work of journalists they employ for the purposes of publication in periodicals, but for all other purposes the copyright remains with the journalist. Clearly in 1968 “”all other purposes” meant books. Thus a journalist could compile a book of his or her collected columns (yawn). But a literal reading of the section means journalists probably have at least partial copyright when media monitoring companies copy newspapers.
It is a richly undeserved copyright given that the employer provides a salary anyway and the costly wherewithal to create the work. No other class of employee gets this special right, nor do journalists in most other English-speaking countries.
It is another example of how inappropriate the individualist approach to copyright is in the face of mass copying. It is being fought in the courts, and the argument will centre around a section of the Act drafted before photocopiers and fax machines were invented.