Copyright changes will make it easier for governments to provide online services

COVID-19 has highlighted a challenge for governments wanting to provide online services. Governments receive all manner of material, and some of that material needs to be made available to the public as part of open and transparent government decision-making. For example, local councils are required by law to make building approvals available for inspection. The obvious solution would be to make these documents available online. However, building plans and most correspondence are protected by copyright, so a local council cannot copy them or make them publicly available online without permission from the copyright owner. There are practical difficulties in getting express permission, and relying on implied permission is fraught with problems. There is a statutory licensing scheme, but it involves paying a licence fee for each reproduction and most councils don't use it. This means the safest option for local councils (from a copyright perspective) is to require people to attend the council's premises to physically inspect the documents. Even before COVID-19, this was an unsatisfactory situation.

The Commonwealth recently announced it will proceed with changes to the Copyright Act to add a new exception for use of copyright material sent to government, provided the use is for non-commercial purposes. These changes were recommended in the 2013 Australian Law Reform Commission report into Copyright and the Digital Economy, and again as part of a possible broad "fair use" copyright exception in the 2016 Productivity Commission Inquiry Report into Intellectual Property Arrangements. The Commonwealth Government is not intending into introduce a fair use copyright exception, but is proposing to add an exception that will allow governments to use copyright material (including putting it online) for non-commercial purposes.

The change to the Copyright Act will bring Australian copyright law into line with countries such as the UK and New Zealand, which already have similar exceptions. Based on the law in those countries and the ALRC recommendation, a government will not be able to make previously published material publicly available. This carve-out is intended to avoid damaging the market for published work that is sent to government. It is unlikely to apply to most of the documents governments receive, so should not be an impediment to online services.

The Commonwealth is expected to release draft legislation for stakeholder consultation later in 2020.