Copyright Agency Annual Report 2022

Download Annual Report as PDF here.

Introduction

Some key results

In 2021–22 Copyright Agency:

• enabled copying and sharing of content by millions of Australians without the individual copyright clearances otherwise required, including:
• nearly 300,000 teaching staff in more than 9,500 schools for more than 4 million students[1]
• 130,000 university staff for 1.4 million university students[2]
• 650,000 students in 24 TAFEs in 2,300 locations[3]
• teachers in more than 1,200 other education institutions, such as registered training providers
• more than 900,000 government employees[4]
• staff in nearly 900 licensed businesses
• allocated $95 million to more than 22,000 recipients, indirectly benefitting many others involved in the creative industries such as in-house writers and illustrators, and writers and illustrators with contractual entitlements to a share of Copyright Agency payments that we do not pay directly[5]
• collected $1.2 million in artists’ resale royalties , and celebrated $11 million generated by the scheme since 2010
• licensed nearly 900 businesses with blanket licences, including 64 new clients
• continued work on new data collection methodologies for the school sector, using modern technologies to reduce the administrative burden on teachers, with the assistance of the Copyright Tribunal
• achieved a good outcome for members from the proceedings in the Copyright Tribunal to establish fair compensation for writers, artists and publishers for the copying and sharing of their works in the university sector[6]
• licensed, under individual agreements, nearly 1,200 other education institutions (such as registered training organisations), including 61 newly licensed institutions
• continued the development and deployment of FLEX for Education: at 30 June 2022 there were 32 licensees (some comprising multiple colleges), a further 34 were running a trial, and 69 had expressed an interest in a trial
• welcomed 857 new members
• represented our members in government inquiries and reform proposals, including on proposals for amendments to the Copyright Act and measures to assist First Nations artists
• approved nearly $1.8 million for 83 projects from the Cultural Fund (members’ contribution of 1.5% of licence revenue)
• increased Reading Australia subscribers by 7% to more than 23,000, and added 28 new teaching resources for schools

Effects of COVID-19

Licences for the education sector

We have a four-year agreement for the school sector, from 2019 to 2022, that sets a fixed price per full-time equivalent (FTE) student per year.[7] There is no provision for review of the licence fees during the period of the agreement, which means that there is no provision to increase the fee for increased copying and sharing of content under the education statutory licence during lockdown periods.

Licence fees payable by the university sector for 2019–22 were determined by the Copyright Tribunal in May 2022, following a hearing in September 2020, having regarding to processed data from the university sector available at the time of the hearing (up to 2019).[8]

We also have licences with more than 1,200 other education institutions. They are listed on our website.[9] Some of the licensees in that sector have been affected by COVID-19, particularly those with significant proportions of overseas students.

Data collection from the education sector

In March 2020, data collection from the school sector was paused due to COVID-19. The pause has continued as we work to develop new data collection arrangements using modern technologies, with the assistance of the Copyright Tribunal.

The university sector has continued to provide some data on electronic use.

Licences for other sectors

Our licences for other sectors include the statutory licence for the Commonwealth, State and Territory governments,[10] and licences for the business, not for profit and local government sectors.[11]

The licences for the government sector have not been affected by COVID-19. Some of the other licences have been affected, however, where COVID-19 has had an impact on a licensee’s revenue and/or staff numbers.

Our members

While the impact of COVID-19 on the copyright fees we collect for members has so far been relatively small, COVID-19 affected other sources of revenue for our members. This includes sources of revenue for creators from public interactions such as appearances at literary festivals, speaker fees and school visits.

Additional information about Copyright Agency

Apart from the information in this annual report, there is additional information about Copyright Agency:

• from the links from our Governance and Policy webpage,[12] which include:
• corporate documents: Constitution; Corporate Governance Statement
• government appointments and guidelines: Declaration as collecting society for education statutory licence; Declaration as collecting society for government statutory licence; Guidelines for declared Collecting Societies
• Annual reports and Annual Reviews
• Annual General Meetings: notices and minutes
• Code of Conduct for Australian collecting societies
• International codes of conduct: IFRRO Code of Conduct; CISAC Professional Rules
• Policies and procedures: Distribution Policy; Client Service Charter; Complaints procedure; Dispute resolution procedure; Whistleblowing Disclosure Form
• Data processing protocols agreed with licensees
• from the information sheets about distributions from our Distribution Schedule and past distributions

We have also included references to further relevant information on the topics covered in each section of the report.

Copyright Agency at a glance

More information

• About Us webpage[18] including links to:
• What we do
• Staff, board and international affiliates
• Governance and policies

About copyright

The objective of copyright law is ‘to give to the author of a creative work his just reward for the benefit he has bestowed on the community and also to encourage the making of further creative works’.[19]

Copyright rights are granted by the Copyright Act.[20] Copyright applies to designated ‘forms of expression’ such as writing, music and images. The ‘owner’ of a copyright has exclusive rights to do certain things such as copying, making available online, broadcasting and public performance. No registration is required for copyright: rights are granted ‘automatically’ on creation of a designated form of expression.

Copyright is a form of ‘intellectual property’: it is ‘owned’ and can be licensed and transferred to others.[21]  The Copyright Act determines the first owner of copyright (usually the creator). Creators also have ‘moral rights’ in their work (relating to attribution and the ‘integrity’ of their work), even if they do not own copyright.[22]

The artists’ resale royalty right (artists’ entitlement to a share of the resale price for artworks) is often regarded as a copyright-related right, though it differs from copyright rights in a number of respects, and in Australia is granted by stand-alone legislation.[23]

Rights usually last for 70 years after the creator’s death.[24]

The Copyright Act contains a range of ‘exceptions’: activities that can be done without the copyright permissions usually required. The Act also contains a number of ‘statutory licences’ that allow copying and sharing of content (e.g. for education) without permission, but subject to fair compensation.[25]

The copyright system is international, involving national legislation that conforms with standards in international treaties.[26]

About statutory licences

Statutory licences have been introduced for situations in which it was assumed ‘that, if left to themselves, the parties will be unable to reach a satisfactory resolution of the terms for the access desired’ for reasons that include ‘unacceptably high transaction costs in cases where individual uses would be too difficult to identify and control’ and ‘the user is in a powerful initial position and has been able to obtain a statutory solution in its favour’.[27]

Statutory licences are compulsory for content creators but not for licensees: users can choose to make alternative arrangements with copyright owners for uses covered by statutory licences, rather than relying on the statutory licence provisions.[28] Content creators have adjusted to the statutory licences, which were introduced a long time ago and enable efficient licensing solutions.

Copyright Agency is appointed (‘declared’) by the Australian Government to manage statutory licences for the use of text, images and print music by the educational and government sectors.[29]

A statutory licence for education was introduced in 1980 following the recommendations of an expert committee,[30] extensively amended in 2000 to enable digital uses of content (such as making content available on an intranet and emailing),[31] and simplified in 2017 following a joint proposal from Copyright Agency, Screenrights and education sector representatives.  In 1990, the Attorney-General’s Department produced guidelines for ‘declared’ collecting societies, which are reflected in Copyright Agency’s Constitution.[32]

A statutory licence for governments was introduced in 1968 as part of the current Copyright Act, following the recommendation of an expert committee,[33] and was amended in 1998 to facilitate collective management.[34]

Statutory licences are consistent with Australia’s international treaty obligations, and exist in other countries, but are more prevalent in Australia than elsewhere.[35]

The Copyright Tribunal has power to determine a range of matters associated with statutory licensing, including the compensation payable, data collection, and distribution of compensation to content creators.

More information

• Australian Copyright Council information sheets and copyright guides[36]

Our business: an overview

Revenue by category

These figures are for revenue recognised for the 2021–22 financial year, rather than received in that period.[37]

Revenue and distributions at a glance

Some licence fees received in one financial year are distributed in the following financial year. For more on allocations to content creators in 2021–22, and funds received in 2021–22 for allocation in 2022–23, see Parts 9 and 11. For Expenses, see Part 12.

Revenue and distributions 2018–22

Education sector licensing

The statutory licence scheme for education in the Copyright Act allows copying and sharing of text and images for education, by educational institutions, provided there is fair compensation to content creators.[41] Copyright Agency was appointed by the Australian Attorney General in 1990 to manage the scheme.

There is a similar scheme for broadcast content (e.g. documentaries, films and current affairs), managed by Screenrights.[42]

The schemes apply to both not-for-profit and for-profit educational institutions. The amount of fair compensation can be determined by the Copyright Tribunal if it cannot be agreed.

Most schools (all government schools, and most Catholic and independent schools) are represented by the Copyright Advisory Group (CAG Schools)[43] in negotiations for fair compensation and data collection arrangements. All Technical and Further Education (TAFE) colleges (apart from those in Victoria)[44] are represented by CAG TAFE. Australian universities are represented by Universities Australia.[45]

Copyright Agency also negotiates individual agreements with more than 1,200 other educational institutions, such as registered training organisations. Some of these agreements cover activities in other countries, based on authorisation from our members rather than the statutory licence. We also offer a joint licence, with music licensing bodies, to the early childhood sector, which is based on authorisation from our members rather than the statutory licence.

For total revenue from the education sector, see 4.1 Revenue by category.

Developments in 2021–22

• continued work on new data collection methodologies for the school sector, using modern technologies to reduce the administrative burden on teachers, with the assistance of the Copyright Tribunal
• a good outcome for members from the proceedings in the Copyright Tribunal to establish fair compensation for writers, artists and publishers for the copying and sharing of their works in the university sector[46]
• licensed, under individual agreements, nearly 1,200 other education institutions (such as registered training organisations), including 61 newly licensed institutions
• continued the development and deployment of FLEX for Education: at 30 June 2022 there were 32 licensees (some comprising multiple colleges), a further 34 were running a trial, and 69 had expressed an interest in a trial
• customer satisfaction surveys of individually licensed education institutions

Licence fees for school sector

Four-year agreement for 2019–22

The current four-year agreement for the school sector (2019–22) was negotiated between us and the Copyright Advisory Group for the (then) Education Council (CAG) in 2018. The agreement sets an amount per student per year.

Under the agreement, the rates are fixed irrespective of external developments. That includes COVID-19, even though copying and sharing of content may increase while schools are doing online teaching during lockdown periods.[47]

The negotiations that led to the current agreement took account of a large range of matters, as is common in any large commercial negotiation.

These included:

• uses recorded in surveys in schools that were excluded in accordance with the data processing protocols agreed with CAG;[48]
• overall discounts for certain classes of use;
• content used by schools under direct licences from rightsholders; and
• terms of use for content available online.

New agreement from 2023

Copyright Agency and CAG have reached a new agreement for 2023–25, with an option to extend to 2026. Under the new agreement, the school sector will continue to pay the fixed, flat rate of $13 per student per year. The agreement means that teachers can continue to copy, adapt and share text and images from anywhere in the world for their students, including for remote learning. The rate for 2023 for 2026 will not be affected by any usage data that may be collected during the licence period.

Copyright Agency looks forward to working with the school sector to help teachers get maximum value from the licence agreement, including via simple, clear guidelines.

Total cost of education for school students

According to the Australian Curriculum and Assessment Authority, the recurrent government funding for school education in 2019–20 was $70.6 billion: about $17,800 per student.[49]

Compensation to content creators under the statutory licence is less than 0.1% of this funding.

Data collection from school sector

There is information on our website about pre-pandemic data collection arrangements from schools and universities, via surveys.[50]

In March 2020, data collection from the school sector was paused due to COVID-19. The pause has continued as we work with the school sector on new data collection arrangements, with the assistance of the Copyright Tribunal.

Australia’s education statutory licence compared

Australia’s education statutory licence is broader than licensing arrangements in other territories such as the UK and New Zealand. For example, key points of difference between Australia and the UK are:

Educational publishing in Australia

The other key difference between Australia and the UK is that Australian markets are much smaller: often state-based due to variations in state and territory curricula. In addition to the textbooks and other materials published by the Australian offices of large publishing companies, there are many medium, small and micro businesses publishing Australian educational resources.

One of the factors for determining the licence fees payable by the education sector under the education statutory licence is the ongoing production of education resources in Australia.[63] This reflects the clear benefit to all Australians of adequate investment in the sustainability of quality Australian educational resources.

What teachers copy under the educational statutory licence

The education statutory licence allows teachers to copy, adapt and share content that they would otherwise need permission for. They do not need permission for content that has been published for free use in schools, such as material published by governments or with a Creative Commons licence, or for copying and sharing in accordance with the terms of use of content that they have purchased, such as an online subscription.

In 2019, about 70% of copying and sharing in schools under the education statutory licence was from books. Most were textbooks, and many were workbooks (activity books), particularly in primary schools. There is a list of commonly copied titles on our website.[64]

Teachers also copied and shared from newspapers and magazines (about 2% of copying), from online sources (about 17%), and from other sources (about 12%). The material that teachers copied and shared from online and other sources included worksheets, activity sheets, student resources, fact sheets, practice tests, lesson plans and images.

Universities

In June 2022, the Copyright Tribunal issued its determination regarding licence fees payable by the university sector for 2019–22. It was a good outcome for members, in particular its recognition of the higher relative value of digital content and use. An appeal against the determination by the university sector is scheduled for hearing in November 2022. Pending the outcome of the appeal, the university sector is continuing to pay annual licence fees at about the same rate as the 2018 fee, but only half of the licence fees are available for distribution.

Individually licensed institutions

As at 30 June 2022, we had 1,228 individual agreements in place with education institutions (293 are joint childcare licensees with One Music), 61 of which are newly licensed institutions (45 commercial institutions, and 16 non-commercial institutions).

Roughly 58% of the individually licensed institutions are not-for-profit, and the remainder for-profit. The institutions include pre-schools, schools and colleges offering higher education degrees, as well as Vocational Education and Training (VET) level diplomas and certificates 1–4. Some offer specialist education, such as theological studies, business studies and English language training.

The for-profit institutions are mostly very large private colleges and registered training organisations (RTOs) offering tertiary education. The not-for-profit institutions include training arms of government bodies, private or community kindergartens, community colleges, smaller RTOs and charitable RTOs.

While we enter into agreements with these institutions individually, we liaise with peak bodies for various classes of institution with a view to:

• increasing understanding of copyright and licensing issues;
• providing licensing information to their members; and
• designing licences that are appropriate to the needs of their members.

FLEX for tertiary education

We have developed an online product called FLEX, which makes the preparation of course reading material simpler and faster for librarians and educators in tertiary institutions.

Among other features, FLEX customers get access to participating publishers’ digital content, get to share scan copies and can order high-quality scans from the British Library. FLEX also enables management of course material from other sources, such as content in the licensed institution’s library, open access content, and content available online like images or articles.

FLEX allows visibility of reading list content at a course level, which (among other things) assists us with distribution of licence fees, and enables easy digital assignment of content to students.

As at 30 June 2022, we had deployed FLEX with 32 licensees, a further 34 were running a trial, and 69 had expressed an interest in a trial. The volume of student views of content served from the platform has grown 40% year on year.

Participating publishers that provide digital content currently Allen & Unwin, Australian Academic Press, Aspire Learning Resources, Education, ACER, Bloomsbury Publishing, Cengage, CSIRO, Currency Press, Elsevier US, Emerald Publishing, HarperCollins, Kilbaha Education, McGraw-Hill, MIT Press, NewSouth Publishing, Oxford University Press, Pearson, Penguin Random House, PETAA, PsychOz, Taylor & Francis, Thomson Reuters, Wiley and Wolters Kluwer.

Early Childhood Licence

We offer a joint licence, with music licensing bodies, to cater for the needs of early childhood education and care providers.[65]

Engagement with education sector

Our licensing staff engage with the education sector in a variety of ways, including participation in education conferences and other events, webinars, and individual training sessions. These activities were more limited in 2021–22 due to COVID-19. Engagement included:

• VELG National VET Conference –In person and online, November 2022
• Australian Copyright Council – Webinar series for educational institutions May 2022 and September 2022

In addition to this, many general copyright and FLEX training sessions were delivered to individual education providers.

More information

• webpages on Copying Under the Education Licence[66] and Online Teaching in Lockdown[67]
• top 50 books teachers copied in 2018–19[68]
• our FLEX webpage[69] with links to:
• ‘Introducing FLEX’ animation
• key features for FLEX
• FAQs about FLEX

Government sector licensing

The statutory licence for governments allows Commonwealth, State and Territory government departments and agencies to make any use of any copyright content for the services of the government.[70] Copyright Agency has been ‘declared’ by the Copyright Tribunal as the collecting society authorised to collect and distribute ‘equitable remuneration’ for government copying of text images and print music.[71] Copyright Agency also licenses, as agent for its members, the communication of text, images and print music.[72]

There are arrangements with State and Territory governments for payment of royalties from sales of survey plans that are separate to the arrangements for other activities done by governments under the statutory licence.

The statutory licence does not apply to government-related entities that are not ‘the Crown’, or to local governments, but Copyright Agency offers other licences for them (based on authorisation from members).

Licence fees paid by the Commonwealth, State and Territory governments are based on a per-employee (full-time equivalent) rate of $7.30 per year.

Developments in 2021–22

• Agreements finalised:
• Commonwealth (to June 2022)
• ACT (to June 2024)
• New South Wales (to June 2023)
• Northern Territory (to June 2024)
• Queensland (to June 2022)
• South Australia (to June 2022)
• Victoria (to June 2024)
• Western Australia (to June 2024)
• Renewals in progress for Northern Territory, Queensland, Tasmania and South Australia all until 2024.

Number of government employees

The table below indicates the number of employees (full-time equivalent: FTE), according to the most recent reports we have received.

More information

• what is covered by our agreements with the Commonwealth, State and Territory governments for copyright sharing by their staff[74]
• which departments and agencies are covered by those agreements[75]
• sales of survey plans by governments[76]

Commercial licensing

Members, including copyright management organisations in other countries, can appoint us as their agent to include their works in various licence schemes we offer. Licensees include corporations and not-for-profit organisations.

We offer ‘blanket’ annual licences, which cover uses of all works we represent. We also offer ‘pay-per-use’ (transactional) licences, including through an online automated facility.[77]

The licences do not cover works that are listed on Copyright Agency’s website as excluded works,[78] but do include an indemnity for uses of other works not represented by us.

Licence fees reflect the value of the licences (e.g. compared to other commercial licensing arrangements).

For total revenue from commercial and other voluntary licences, see 4.1 Licence fees by sector.

Developments in 2021–22

• annual licences for the business sector:
• 64 new clients resulting in about $454,000 of new business in licence fees from the corporate sector
• 885 existing clients valued at $6.6m of retained licences
• continuation of monitoring program for corporate websites with infringing newspaper content, with a view to increased uptake of licences in the corporate sector
• Copyright Tribunal determination relating to licence fees payable by media monitoring organisations[79]
• $2.3m in licence fees for artwork licences, including for:
• ranges for Linda Puna x Unreal Fur, Magpie Goose fabrics, Manning Cartell x John Coburn, MAARA Collective x Lexie Michael and Alison Lionel resort wear
• building interiors and fit-out for Newman Hospital, ANZ head office, Gordonvale Woolworths, Mabu Mabu restaurant and the Australian Embassy
• touring exhibitions such as NMA’s Songlines international tour, National Gallery of Australia (NGA) Ever Present touring show to Art Gallery of Western Australia (AGWA) and National Gallery Singapore
• other artwork licensing developments included:
• new licensing models for digital immersive exhibition experiences including Grande Exhibitions Connections show at NMA and Inside Dali by Crossmedia touring New Zealand
• packaging and marketing campaigns for ASUS, Jurlique and other companies
• taking on the management of copyright licensing for Brett Whiteley’s estate.

Licences for the corporate sector

In addition to our general licence for corporations, we have licences covering the specific requirements of:

• pharmaceutical companies
• public relations (PR) companies
• law firms
• Australian-based firms with offices in other countries

Other licence schemes include:

• media monitoring (as agent for newspaper and magazine publishers)
• inclusion of journal articles and other works in commercial subscription services

Not-for-profit sector

We offer licences for a range of not-for-profit entities, including incorporated associations, unincorporated associations, societies and unions. We have specific sector licences for:

• local governments;
• religious organisations; and
• civil celebrants

Transactional (pay per use) licences for text

We offer transactional (pay per use) licences for text in two ways:

• an automated online service (RightsPortal);[80] and
• a manual clearance service.

The automated service currently applies to newspaper content (text, but not images), and articles from scholarly journals.

For content not yet covered by the online facility, we offer a manual clearance service. Licensees make a request via the RightsPortal, and we respond within 48 hours. We liaise with the rightsholder, who decides whether or not to license and sets a price, and manage the licence arrangements, invoicing and payment.

Most of the users of these services are publishers.

Artwork licences

Copyright Agency licenses the use of artwork to a huge variety of clients in Australia and New Zealand representing over 60,000 visual artist members from across the world.

Our pay-per-use licences cover the reproduction and communication of images for many uses including books, catalogues and websites, through to individually tailored agreements for projects such as architecture, merchandise and fashion.  We also have agreements with licensees such as public galleries, auction houses and media companies that cover the use of a large number of artworks for a fixed annual fee.

We work with clients and artists to ensure best practice agreements that benefit both parties and encourage the appreciation of art.

Engagement with licensees

The Commercial Licensing team engages with current and potential licensees in a variety of ways. In 2021–22, this continued to be affected by COVID-19. The team conducted 74 training sessions with a range of organisations around Australia.

And the team participated in the following conferences Industry events:

• Public Relations Institute of Australia (PRIA) – Online Annual conference October 2021
• LG Professional, Victoria –Corporate Partners – Online February 2021
• LGNSW – Conference – November 2021
• Association of Corporate Counsel – Online November 2021
• Association of Regulatory and Clinical Scientists – Conference May 2022

More information

• webpage on commercial licensing[81] with links to:
• guides on annual licences for different sorts of businesses
• guides to pay-per-use licences
• information for clients of media monitoring licences
• visual arts licensing webpage[82] including links to:
• Visual Arts Licensing Portal
• Image Bank of a curated selection of images of our Australian and New Zealand members’ works[83]
• price guide
• examples of products with images we have licensed, such as clothing, homewares and books

Artists’ resale royalty scheme

The artists’ resale royalty scheme commenced on 9 June 2010. Copyright Agency was appointed by the Minister for the Arts to manage the scheme in May 2010.

The scheme requires payment of a 5% royalty of the sale price for certain resales of artworks by Australian artists.[84] It also requires the reporting of all resales with a sales value of $1,000 or more to Copyright Agency, with sufficient information to determine if a royalty is payable. A royalty is not payable if the seller acquired the work before the scheme commenced.

There is a dedicated website – resaleroyalty.org.au – which has an online reporting facility, and online registration for artists and art market professionals to provide contact details.

Developments in 2021–22

• as at 30 June 2022, the scheme had generated over $11.5m in royalties from nearly 24,000 resales benefitting over 2,400 artists[85]
• over $1.4 million in royalties was generated in 2021–22, 11% less than for 2020–21
• artists who receive royalties includes artists at all stages of their careers, from emerging to senior, living all around Australia, including in remote communities
• 65% of artists receiving royalties are Aboriginal and Torres Strait Islander artists
• over 200 artists received a royalty for the first time in 2021–22
• our engagement activities continue to show a high level of awareness and understanding of the scheme amongst art market professionals
• our monitoring activities identified some missed or inaccurately reported resales that were subsequently confirmed as royalty due
• we adjusted aspects of our services (in particular, stakeholder engagement, research and monitoring activities) in early 2020 due to the impact of COVID-19, and this has continued for 2021–22
• as a result of the Australia­–United Kingdom Free Trade Agreement, we are expecting to enter into reciprocal arrangements with the UK, which has had a scheme in place since 2006
• series of communications to celebrate the generation of $11 million in royalties from the artists resale royalty scheme[86]

Summary of resales

The following shows the percentage of resales reported to Copyright Agency that met the eligibility criteria for payment of a royalty, by payment range.[89]

Payments by state/territory

The following shows payments by state and territory, from the commencement of the scheme in June 2010.

Stakeholder engagement

While the continued present of COVID-19, meant the majority of activities were delivered online in 2021–22, toward the latter part of the year we were able to recommence face-to-face activities.

Key activities included:

• information sessions and meetings to discuss resale royalty at or in conjunction with key events included AACHWA Business Forum, Melbourne Art Fair, South Australian Biennial, the Sydney Biennale, the Flying Arts 2022 Webinar and the Umi Arts: Big Talk One Fire Cultural Festival
• communications to improve compliance, provide clarity on eligibility criteria and support efficient administration of the scheme
• providing content for the DFAT case study in support of the preparations for commencement of reciprocity with the UK: The Resale Royalty Right: Scheme Performance 2010 to 2022
• social media campaign featuring four Australian artists – Wendy Sharp, Jasper Knight, Abdul Abdulla, Joel Rea – acknowledging the $11 million royalty milestone
• information to artists and art market professionals via email alerts and through our visual arts eNewsletter, CANVAS – Copyright Agency News for Visual Artists, which has a distribution to nearly 11,000 recipients
• advocacy and policy representation of artists’ interests including a submission to the Productivity Commission study to examine the value, nature and structure of the markets for Aboriginal and Torres Strait Islander arts and crafts and policies to address deficiencies in the markets

More information

• Artists Resale Royalty website[90]
• Office of Arts Resale Royalty Scheme webpage[91]
• Australian Government Post-Implementation Review of resale royalty scheme[92]

Payments to content creators

We acquire data for distribution from a variety of sources, including surveys of usage by licensees and data that indicates content available to licensees. There are a series of processes involved in allocating payments to content creators based on the best data available at a reasonable cost within the relevant time period. These include analysing the available data and identifying recipients. The processes are sometimes complex, accounting for the time between receipt of licence fees, allocation, and payment.

Distribution policy is overseen by the Board, and published on our website.[93] The Copyright Tribunal has power to review distribution arrangements for statutory licence fees.

In 2021–22, we allocated $95 million to more than 22,000 unique recipients, indirectly benefitting many others involved in the creative industries such as in-house writers and illustrators, and writers with contractual entitlements to a share of Copyright Agency payments that we do not pay directly.[94]

The term ‘content creators’ includes all the people involved in the development, creation and production of content, including staff of publishing companies as well as freelance contributors such as writers and illustrators.

Payments to content creators by licence sector and publication type

The following table show estimates of allocations to content creators according to the type of publication the content was copied from, where relevant, and licence sector. It also shows the amounts for the annual artists’ and writers’ distributions. These are amount set aside from licence fees for artists and writers where there is limited usage data, and are in addition to allocations from other sources, such as to writers and illustrators with contractual entitlements to shares of allocations to books.

Payments and recipients by state and territory

The following table represents estimates, based on payees for whom we have information about the state in which they operate or live.

For artists’ resale royalty recipients, see the section on the Artists’ Resale Royalty Scheme.

Allocation recipients for 2021–22

The following tables show amounts allocated in 2021–22, some of which may be paid in subsequent financial years.

Categories

Schools

For the June 2022 distribution, we made some changes to our approach, having regard to factors such as the ongoing pause in surveys in samples of schools from March 2020.[97] We obtained some updated data about materials that teachers copy and share from a short high-level questionnaire completed by teachers, and some data about recently published textbooks.

The licence fees for separate distribution are for primarily for writers and artists who do not have arrangements with publishers for a share of Copyright Agency allocations. We combine the licence fees from the school sector with similar amounts set aside from other licence fees, and do a single annual distribution for artists and writers respectively from the combined pool of fees. The number of recipients in the table is for the combined pool.

The remaining licence fees are distributed to recipients who include people working in publishing companies, writers and artists. Some writers and artists receive payments directly from us, where we have information about their arrangements with publishers for sharing Copyright Agency allocations for books.

In 2021–22, there were about 15,000 allocations totalling $5.8 million, from the main distribution of licence fees from the school sector, to writers and illustrators with registered book shares.

There were about 7,000 allocations totalling $7.4 million to publishers with registered book shares.

Other writers and illustrators without registered book shares received payments from their publishers. We do not currently have information about how many recipients, or the total amount on-paid.

Recipients of Copyright Agency payments also have writers and artists on staff, or are self-publishers of content that they create. Copyright Agency payments support those businesses and jobs.

Universities

The amount available for distribution to members continued to be less than the amounts available before 2019, because of proceedings in the Copyright Tribunal to determine future licence fees and data collection arrangements. In May 2019, the Tribunal ordered that, pending the final determination, the universities would continue to pay the amount payable under its previous remuneration agreement that expired in December 2018 with half going to Copyright Agency (for distribution to members) and the other half going into escrow. The Tribunal issued its determination in May 2022, but the escrow arrangement is continuing pending resolution of an appeal by the university sector (scheduled for hearing in November 2022).

TAFEs

Other education providers (individually licensed education institutions)

Governments

The allocation of licence fees from governments in 2020–21 was (apart from that from survey plans) mostly based on data from various sources indicating content that was available to governments to copy and share during the licence period (rather than information about actual use). We used different data sources for different types of content (such as books, journals, newspapers and images), based on the best data available to us at the time at a reasonable cost.

Payments to individual creators

All content is created by individuals. They do so in a large variety of scenarios, which include:

1. it is part of their salaried employment: for example, they are on the staff of a publishing company as a writer, illustrator, editor or software developer
2. they are commissioned to create specific content (e.g. that a publisher requires for a textbook) for a payment
3. they create content, then look for a publisher
4. they create work that they choose to license for free because they are not dependent on income from their content

In educational publishing, (1) and (2) are more common than (3). In trade publishing, (3) is common for fiction, and (2) more common for non-fiction.

Payment options for (2) and (3) include:

1. an upfront fee that includes a copyright buyout;
2. an upfront fee and royalties from sales; and
3. an advance against future royalties, then royalties once the advance is recouped.

In (b) and (c), publishing contracts commonly provide that the creators will receive all Copyright Agency payments (rather than sharing them) when a book is out of print.

We have partial information about Copyright Agency payments for individual creators who are contracted by publishers to create content in return for a fee. This is where members have provided us with information about how payments are to be shared among rightsholders.

Our information about the following is very limited:

• how many individual creators are on the staff of organisations that receive Copyright Agency payments;
• the components of upfront fees that relate to buyout of future Copyright Agency allocations;
• the sharing arrangements for Copyright Agency payments for books that we do not yet have registered shares for.

In 2021–22, we made more than 94,000 allocations to writers and artists, totalling $18.8m.

These included 46,000 allocations for registered writers’ and artists’ shares of allocations to books, totalling $7.3 million.

Of these, there were more than 2,500 allocations, totalling nearly $700,000, to authors who receive 100% of allocations to their books because rights have ‘reverted’ to them under their publishing contract (usually when a book goes out of print).

There were about 23,000 allocations to publishers with registered shares, totalling $9.3 million.

The range of shares for freelance writers and illustrators is set out in the table below. Titles with small shares for freelance writers and illustrators usually involve other creative input from writers and illustrators on staff, and/or an upfront fee that that covered entitlement to Copyright Agency payments.

More information

• distribution policy[98]
• deductions from licence fees (fees)[99]
• distribution schedule, including links to infosheets[100]
• unpaid allocations[101]

Cultural Fund

Copyright Agency’s Constitution allows the Board to allocate up to 1.5% of income to support writers, visual artists, publishers, creative organisations and Reading Australia through the Cultural Fund.[102] With an annual budget of approximately $1.7 million the Cultural Fund supports a wide variety of projects each year.

In 2021–22, $1,776,529 was approved through the Cultural Fund for 83 projects, including five Create Grants, three Copyright Agency Fellowships including Reading Australia.[103] 18 multiyear projects funded previously were also paid in 2021-22 and are included here for the first time to present an overall summary of Cultural Fund support.

Recipients by category 2021–22

Some of the amounts paid were approved in previous years.

Projects supported by the Cultural Fund in 2021–22

The following projects were approved for funding in 2021–22. These, and projects supported in previous years, are described in more detail on our website.[104] In some cases, the funding was approved for a project spanning up to three years.

Fellowships 2021–22

The following applicants were successful for Fellowships in 2021–22.

CREATE grants 2021–22

The following applicants were successful for Create Grants in 2021–22.

Promoting projects supported by the Cultural Fund

We promote many of the projects supported by the Cultural Fund in a variety of ways, including media releases, news items on our website, e-newsletters (Creative Licence and CANVAS) and social media. For projects that involve author or artist participation (e.g. writers’ festivals,  events), one of our objectives is to increase awareness of, attendance and  participation, and we do this through our various communication channels, to complement  the supported organisation’s own promotion.

Reading Australia

Reading Australia (readingaustralia.com.au) is a Copyright Agency initiative that supports the teaching – and, by extension, the reading – of Australian literature in Australian schools. The Cultural Fund allocates approximately $100,000 a year to Reading Australia for:

• commissioning new resources and material for teachers;
• partnerships with education bodies, libraries, publishers, and writers’ organisations;
• conferences, stakeholder engagement, and website development; and
• the Reading Australia Fellowship for Teachers of English and Literacy.

Since 2013, Reading Australia has been developed in partnership with the Australian Literacy Educators’ Association (ALEA), the Australian Association for the Teaching of English (AATE), the Primary English Teaching Association Australia (PETAA), and the Association for the Study of Australian Literature (ASAL).

Reading Australia began as a list of 200 books chosen by a panel from the Australian Society of Authors (ASA) to celebrate the work of leading Australian writers and illustrators. Recently its focus has been to publish resources for books that are being taught in schools, and for important literary titles that should be taught in classrooms.

As of 30 June 2021, a further 267 titles covering all genres and periods of Australia’s literary history have been added to Reading Australia.

There are currently 259 resources covering all year levels from Foundation to Senior Secondary. These units of work are designed to help teachers navigate Australian texts within the framework of the Australian Curriculum. Additionally:

• there are 100 essays for secondary-level titles written by eminent authors, academics and critics;
• 26 resources have been written for episodes of The Garret: Writers on Writing featuring Reading Australia authors and illustrators; and
• 19 titles feature AustLit information trails: curated collections of information covering the title’s context, themes and more, plus links to academic research and publications.

Reading Australia Developments in 2021–22

• Recorded the following:
• 23,487 total subscribers (up 7% from 21,951)
• 236,284 downloads of resources (and a total 1,463,901 downloads over their lifetime)
• 439,215 active sessions on the website (and a total 2,456,503 sessions over its lifetime)
• Published 28 new resources, including:
• 14 for primary teachers (107 in total)
• 14 for secondary teachers (152 in total)
• 8 resources for books by Aboriginal or Torres Strait Islander authors (64 in total)
• Awarded the third Reading Australia Fellowship for Teachers of English and Literacy to Edwina West (Oakhill College, NSW)
• Published two guest posts by Edwina on Reading Australia’s website
• Presented at the 2021 AATE/ALEA National Conference (online) with ALEA Fellow and education consultant Wendy Bean, and 2020 Reading Australia Fellow Karen Yager
• Received 150 entries to the 2021 NAIDOC Week Colouring Competition, with exclusive designs by Charmaine Ledden-Lewis (Magabala Books)
• Partnered with ABC Education to present the Books That Made Us Youth Fiction Prize, plus complementary video content from the Books That Made Us TV show
• Partnered with 12 leading literature-focused organisations, led by the Foundation for Learning and Literacy, to present a free Literature Symposium between June and November 2022
• Ongoing support for the Australian Children’s Laureate Foundation, including free monthly audiobooks by diverse authors (especially those on Reading Australia)
• Ongoing support for Red Room Poetry initiatives, including the POEM FOREST nature writing prize for students and teachers
• Ongoing engagement with Australian publishers to create resources and promote Reading Australia authors and titles

More information

• Cultural Fund webpage[105] including links to:
• how to apply for funding
• projects and people supported by the fund

Money held for payment to rightsholders and reserves

At any given time, we are holding money for payment to rightsholders and reserves. The amount of money for payment to rightsholders changes significantly over the course of a year, increasing with the receipt of licence fees, and decreasing with the payments to rightsholders.

The reasons that licence fees may not have been paid at a given date include:

• the licence fees were only recently received;
• we have not yet received the information needed to allocate to rightsholders; and
• fees have been allocated, but not yet paid, to rightsholders.

Money held at 30 June 2022 for payment to rightsholders

As at 30 June 2022, there was $22.25m for payment to members representing:

Licence fees received but not yet allocated

The table below shows licence fees we are holding that have not yet been allocated. We make a deduction for anticipated operating costs and for the Cultural Fund before we allocate to rightsholders.

Time between invoice and distribution of licence fees from schools and universities

Licence fees were due from the school sector in April 2022 for January to December 2022, and allocated to rightsholders in June 2022. Most allocations were paid to rightsholders by 30 June.

Licence fees payable under the interim arrangements with Universities Australia set by the Copyright Tribunal are invoiced quarterly and paid to members twice a year, in December and June. The fees for January to June 2022 were due in April 2022, allocated to rightsholders in June 2022, and mostly paid to rightsholders by 30 June 2022.

Number of allocations

Each year we make hundreds of thousands of allocations to rightsholders from a variety of sources, for a range of amounts.

In 2021–22, we made nearly 940,000 allocations. The following table shows allocations by licence sector:

The table below indicates the range of allocations. For each allocation, we make the best use of the information available to us, and resources proportionate to the amount allocated, to allocate the amount to the correct rightsholder.

Many recipients receive multiple allocations, so the aggregate amounts are greater than those listed above.

Steps taken to locate rightsholders

When we allocate an amount to a non-member rightsholder, we create a non-member account in our membership database, with any contact details available to us at the time. Our steps for locating rightsholders include researching contact details, direct contact by email or phone, and indirect contact via relevant professional associations, such as associations for writers, artists, publishers and surveying firms. These rightsholders include members who have not updated their contact and bank details with us, as well as non-members. In order to keep our operating costs at a reasonable level, our application of resources to locating a rightsholder needs to be proportionate to the amount allocated to the rightsholder. In 2021–22, we admitted more than 850 new members (membership is free), which included rightsholders with allocated amounts.

Why allocated funds have not yet been paid

The government guidelines for declared collecting societies refer to the following as reasons for a collecting society holding unpaid allocations:

• the society has lost contact with the member concerned;
• the qualified person entitled is not currently a member;
• the relevant copyright owner or agent entitled to the amount is not finally ascertained;
• there is a dispute as to entitlement;
• the accumulated aggregate amount due to a member would be uneconomic to distribute, ie, is below a threshold limit;
• a portion of funds collected cannot be allocated immediately as there is presently inadequate data for apportionment;
• monies are required, under mutual arrangements, to be held pending acquittal with a foreign society; and
• it is desired to set aside a specific sum to meet ex gratia claims which might later arise in respect of the current period[108]

The following is a breakdown of allocations that we were holding at 30 June 2022, that have not yet been paid.

Unpaid allocations for return to members

We are required to hold allocations from statutory licence fees for at least four years. Under our current distribution policy, allocations from non-statutory licence fees can be released after 12 months. The Board determines how unpaid allocations that are no longer held for specific rightsholders (‘rollovers’) will be applied.

The table shows the sources of licence fees that remained unpaid in 2021–22 from statutory licence allocations in 2017–18, that we are no longer holding for the rightsholders to whom the allocations were originally made. The table also shows allocations from non-statutory licence fees that we are no longer holding for the rightsholders for whom the allocations were originally made. We used to hold these allocations for four years, but now hold them for 12 months.

Reasons allocations were not paid

In some cases, an allocation does not end up being paid to the rightsholder it was initially allocated to. The table below summarises the reasons for allocations remaining unpaid and being ‘rolled over’ in 2021–22.

In Part 12 (Expenses), we have set out how rollovers were applied from FY14 to FY22. From 1 July 2022, we are including rollovers in distributions.

Relationship to licence fees

Most of the licence fees that Copyright Agency receives are from annual ‘blanket’ licences that allow licensees to copy, adapt and share content on an ‘all-you-can-eat’ basis for a fixed fee, like a subscription. Part of the value of the licence is that licensees do not have to identify rightsholders, seek permissions, or find alternative content if a permission is not available.

For example, in 2021–22, the Australian school sector paid a fixed amount representing $13 per student. The fixed fee allowed Australian teachers to copy, adapt and share as much of the content available to them under the education statutory licence as they wanted to. The licence fees for 2021–22 were allocated in June 2022, using a number of sources of data, including data from surveys in small samples of schools that were conducted up to March 2020.[111] There were more than 49,000 allocations to rightsholders of varying amounts (with some rightsholders receiving multiple allocations). There may be a small proportion of those allocations that remain unpaid in four years’ time. If there is, the value of the licence to teachers and others in the school sector in 2021–22 is unchanged.

Reserves as at 30 June 2022

As at 30 June 2022, we were holding the following reserves:

Reservation of amounts for continued operations and contingencies

The Australian government guidelines for collecting societies that are appointed to manage statutory licences allow us to reserve amounts from allocation and distribution for continued operation and contingencies.[112]

Costs associated with continued operation include ‘day to day’ costs, such as staff salaries, leasing costs and data collection for distribution of licence fees. They also include costs associated with the long-term sustainability of our services to members, such as investment in the information technology that supports those services, advocacy to maintain or improve the regulatory settings that underpin those services, and proceedings in the Copyright Tribunal to determine future licence fees and data collection arrangements.

We have funds available for distribution from three sources: licence fees, interest on licence fees, and amounts allocated to rightsholders that we were unable to pay after a period of time (rollovers).

Our current practice is that amounts available for distribution principally comprise licence fees received. We distribute the balance of licence fees we receive, after a deduction for anticipated operating costs for the financial year and a deduction for our Cultural Fund. There is information about those deductions on our website.[113] In 2021–22, the deduction for anticipated operating costs for most licence fees was 13.8%. There was also a deduction of 1.5% for the Cultural Fund.

We currently include interest on licence fees in our calculations of the deductions from licence fees for anticipated operating costs: that is, the interest effectively reduces the deduction.

In 2021–22, we applied some unpaid allocations (rollovers) to meet expenses.[114] This also has the effect of reducing the deductions for anticipated operating costs.

In the past, the Board has decided to hold interest and rollovers for potential future expenses, in the light of external circumstances at the time and the best interests of members in those circumstances. It regularly reviews these amounts in the light of changing circumstances, to assess the company’s need for reserves for future expenses and whether funds should be released from reserves to meet expenses associated with long-term member benefits.

Establishment of Future Fund in 2013

In 2013, the Board considered the best interests of members, and potential costs associated with continued operation, in the light of the following external circumstances:

• the decision of Canadian education institutions to not renew their licensing arrangements with the copyright management organisation, Access Copyright; and
• recommendations by the Australian Law Reform Commission (ALRC) to both introduce a US-style ‘fair use’ exception and repeal the education statutory licence.

The Board considered that there was a real risk that developments similar to those in Canada could eventuate if the ALRC recommendations were implemented.[115] It therefore decided to hold interest and rollovers in reserve to meet potential future expenses associated with continued operation in the event of developments such as had occurred in Canada.

The Board has reviewed the reserve periodically since it was established, as noted in previous annual reports and Directors’ Reports.

In 2017, the Board reported that it had determined to maintain the Fund but that it would periodically review the need for it and any amounts no longer required for safeguarding members’ interests will be returned to members.

Indemnity Fund

Copyright Agency has an Indemnity Fund to compensate rightsholders for use of their content in connection with licences managed by Copyright Agency. For example, Copyright Agency’s Distribution Policy provides for an ex gratia payment to a rightsholder who can establish that their work was substantially copied under a licence, but who received little or no payment for that use (for example, because the use occurred in a school that did not participate in the surveys of copying that were used for distribution).

Funds for distribution and reserves at 30 June 2014–22

More information

• distribution policy[116]
• unpaid allocations[117]

Expenses

Copyright Agency’s Board must approve the company’s annual operating budget. There is a breakdown of expenses, with notes on some items, on page 15 of the Directors’ Report and Financial Report for the year ended 30 June 2022, annexed.

Most expenses were met from deductions for operating costs from licence fees distributed in 2021–22 (totalling $18.13 million). Some expenses were met from reserves (totalling $2.34 million), and some were met from allocations in previous years that remained unpaid and were ‘rolled over’ ($3.3 million). The funds rolled over comprised $2 million from allocations in 2016–17, and $1.3 million from previous years.

Deductions for anticipated operating costs

There is information about our deductions from licence fees for anticipated operating costs on our Fees webpage.[118] In 2021–22, our fixed deductions for anticipated operating costs were as follows:

• pay-per-use licences for text(e.g. through RightsPortal): 13.5%
• licence fees from media monitoring licences: 8.5%
• artists’ resale royalty scheme: 15%

The deduction for all other licence fees was $13.8%.

In addition to the deduction for anticipated operating costs, we deduct 1.5% from most licence fees for the Cultural Fund.[119]

From 1 July 2022 we made two changes:

• a fixed fee for pay-per-use licences for artworksissued by the Visual Arts team: 13.8%
• an increase in the deduction for licence fees without a fixed deduction to 17.4%.

The increase was partly due to a change in the way we apply ‘rollovers’ (allocations to content creators that remain unpaid). From 1 July 2022, we are adding these amounts to distribution pools rather than using them to pay expenses. The change to the rollover policy does not affect the overall net amounts for distribution.

Ratio of Costs met from deductions from licence fees in 2021–22 to revenue

In 2021–22, recognised revenue was $127,427,549, and total expenses met from deductions from licence fees during 2021–22 were $18,130,340.

The following represents our operating costs, met from deductions from licence fees, as a proportion of our total revenue.

In 2022–23, the ratio will increase. This is partly because we are adding rollovers to distributions from July 2022, rather than using rollovers to pay expenses.

Reserves (Future Fund) retained and spent to 30 June 2022

Application of rollovers over time

Before FY14, unpaid allocations (rollovers) were included in funds for distribution. From FY14 to FY16, rollovers were held in reserve, in the Future Fund (as shown above). From 1 July 2022, rollovers will be included in funds for distribution.

The following table shows how rollovers were applied from FY16 to FY22. There was a ‘backlog’ of rollovers in FY19 due to some limitations in our systems that were resolved in FY19.

Staff remuneration and performance

All employees have a position description outlining the responsibilities and key competencies required for their role. Key Performance Indicators (KPIs) are set each financial year and cascaded down from the senior management team to ensure alignment with the business requirements. They are then reviewed and agreed upon by employees with their manager, and performance objectives and targets are determined.

Our employees have one formal performance review each year, during which an individual’s performance is reviewed against the agreed objectives. Recommendations for annual remuneration are based on:

• the assessment of each employee’s performance against those objectives;
• benchmarking against similar positions in comparable organisations;
• overall company performance; and
• market and economic conditions.

Final decisions regarding remuneration are made after considering managers’ recommendations, external benchmarks and environment, salary relativities within the company and our financial capacity.

• In 2021–22, employee benefits expense was 9.1% of total revenue (64% of our operating costs)
• Staffing levels vary from time to time in accordance with requirements
• Staff include full-time employees, part-time employees and contractors
• In 2021–22, staffing levels ranged from 72.49 full-time equivalent (FTE) to 61.59 FTE
• At 30 June 2022, there were 61.59 FTE staff
• As at 30 June 2022, the median remuneration (including superannuation exclude bonus and commission) for all staff was $132,000

Staff remuneration greater than $158,500 as follows:

More information

• Fees webpage[121]
• Our People webpage[122]

Members

Membership of Copyright Agency is free.  Anyone with a copyright interest in a text work or image can apply for membership.[123]

Until November 2017, there were three classes of membership: ‘author’, ‘publisher’ and ‘collecting society’.[124] Since then, there has been an additional class of member – visual artist – as a result of the merger with Viscopy.

People can choose to be a member solely for entitlement to any statutory licence compensation allocated for use of their works, or they can choose to also authorise Copyright Agency to license reproduction and communication of their works. This authorisation is non-exclusive; they can also license these uses themselves.

For a number of reasons, we only make payments to members, but our systems enable payment to new members for past usage. Some members who receive payments share them with others. For example, many authors receive Copyright Agency payments indirectly via their publisher rather directly from Copyright Agency.

Developments in 2021–22

• short pulse survey of members using the Member Portal during June 2021 showed that the majority of members were satisfied with the process, and identified some ways that members’ experiences could be improved
• webinar for members providing digital content for FLEX
• briefings and other communications with members on key developments including proceedings in the Copyright Tribunal

Members at 30 June 2022

In 2021–22, 857 new members were admitted to membership. Some memberships also ceased for various reasons (e.g. a company ceased trading).

Many rightsholders are not direct members of Copyright Agency, but are represented by (and receive payments from) our members. For example, there are nearly 1,300 writers represented by literary agents who are members, and nearly 7,300 artists represented by artists’ agents and Indigenous art centres.

Thousands of writers and illustrators also receive payments via their publishers, rather than directly as members.

Members by profile

Member enquiries

The Member Services team answered more than 12,000 enquiries in 2021–22, mostly from members.

Many members are now getting the information they need from the online Help Centre: there were more than 35,400 views of information on the Help Centre in 2021–22.

Of the customers who provided feedback on the response to their enquiry, 96.9% were satisfied with the response.

The Member Services team responded to more than 95% of enquiries within four hours.

Copyright management organisations in other countries

We have about 70 members that are copyright management organisations (CMOs) in other countries. Our agreements with them enable us to include foreign content in the non-statutory licences we offer, and to receive payments for the use of Australian content in other countries.

We are a member of the International Federation of Reproduction Rights Organisations (IFRRO),[126] the International Confederation of Societies of Authors and Composers (CISAC),[127] and the Press Database and Licensing Network (PDLN)[128].

More information

• Member webpage[129] including links to:
• How to apply
• Licence participation
• Payments to members
• International affiliations:
• International affiliates[130]
• IFRRO[131]
• CISAC[132]
• PDLN[133]

Policy and advocacy

We monitor and seek to influence policy developments that affect copyright-based licence fees and other income for content creators. We form policy positions in consultation with a range of stakeholders, including industry and professional bodies representing content creators.

The objects in Copyright Agency’s Constitution include:

• to promote and foster the interests of owners of copyrights and neighbouring rights; and
• to support or oppose any legislation which might affect the Company’s interests.[134]

Members expect us to represent their interests, and that we will retain an appropriate proportion of licence fees in order to do so. The extent of that representation is affected by external developments, including recommendations for changes to legislation that adversely affect content creators.

We encourage and facilitate the copying and sharing of content on fair terms. In particular, we want teachers to be able to focus on their critical teaching role, knowing that they can copy, adapt and share the best teaching resources for their students. Teachers support a copyright framework and simple guidelines that enable them to do this. They also support fair payments to the creators of the content they copy, adapt and share, many of whom are current or former teachers. The system works best when those responsible for copying and sharing by teachers and others recognise that fair payments support the long-term sustainability of quality content, particularly Australian content.

Developments in 2021–22

In December 2021, the Government released an ‘exposure draft’ of proposed changes to the Copyright Act, for feedback and consultation. The changes related to ‘orphan works’ (where a potential user is unable to identify or locate a rightsholder after a ‘diligent search’), quotations for purposes other than those already provided for in the Copyright Act (like criticism, review and reporting news), provision and publication of material by libraries, government use, and educational use.[135]

Many aspects of the draft would have applied much more broadly than content creators had been led to expect, and the content sector expressed its strong opposition to those proposals in its submissions and representations to the Government. Many aspects of the draft were contrary to reassurances from the Minister that any changes would not undermine income for people involved in Australia’s creative industries.

The current Government has indicated that it is interested in proposals that have consensus support, and we are working with other stakeholders to identify issues that could be taken forward on this basis.

The Government is also seeking submissions on a new Cultural Policy. Copyright Agency has made a submission, along with submissions from members and key stakeholder organisations.[136]

Other developments in 2021–22 were:

• Report from the Parliamentary inquiry into Australia’s creative and cultural institutions;[137]
• Report from the Parliamentary inquiry into the Aboriginal flag;[138]
• Productivity Commission inquiry into Aboriginal and Torres Strait Islander Visual Arts;[139]
• Renewal of the ‘Storytime’ arrangement for schools, by the Australian Society of Authors and Australian Publishers Association[140]

Submissions and representations in 2021–22

Engagement in policy and advocacy included:

• submission on the exposure draft of proposed changes to the Copyright Act
• submissions to the Productivity Commission inquiry into Aboriginal and Torres Strait Islander Visual Arts

International developments

Developments included:

• ‘reconsideration’ by the National Library of New Zealand of its proposal to supply books to the Internet Archive for digitization, following opposition from Australian authors and others;[141]
• announcement by UK Intellectual Property Office that there will be no immediate changes to the UK ‘parallel importation’ provisions;[142] and
• attempts by some US State Governments to force publishers to grant e-lending licences to US libraries.[143]

Stakeholder engagement

Copyright Agency’s stakeholders include content creators, content users (licensees) and the Australian government.

Content creator stakeholders include members of Copyright Agency; potential members; artists entitled to royalties under the artists resale royalty scheme; and professional organisations for content creators (such as Australian Society of Authors, Australian Publishers Association, Media Entertainment and Arts Alliance and National Association for the Visual Arts).

Content user stakeholders include people who use content under licences (e.g. teachers, government employees, businesses), professional associations for those users (such as teacher associations and unions), and people who negotiate licence fees and other arrangements for their sector (such as Copyright Advisory Group and Universities Australia). They also include art market professionals and art purchasers covered by the artists resale royalty scheme.

Copyright Agency has a stakeholder relationship with the Australian government in four areas:

• the government’s appointments of Copyright Agency to manage the statutory licence schemes for the education and government sectors, and the artists’ resale royalty scheme (which include tabling of annual reports in Parliament);
• reviews of, and proposed changes to, legislation affecting copyright payments and royalties (principally the legislation relating to copyright and to the artists resale royalty scheme);
• as a licensee; and
• as an owner of copyright.

Copyright Agency also has stakeholder relationships with State and Territory governments, in their capacity as licensees, and as owners of copyright.

We have ongoing engagement with these key stakeholder sectors, including via face-to-face and online meetings and email. We have outlined engagement on policy issues in the previous section.

News and information via e-newsletters (EDMs)

We send emails of curated links to content on our website to different stakeholder groups:

• CANVAS: for artists, art market professionals and others interested in the visual arts
• Creative Licence: for all members and anyone else interested in the information (people can subscribe on our website)
• Education Plus: for individually licensed education institutions such as registered training organisations
• FLEX: for individually licensed education institutions that are using FLEX
• Licence Plus: for businesses with annual business licences

Reconciliation Action Plan

We have had a Reconciliation Action Plan (RAP) since 2015.[144] In May 2022, we launched our third plan, for 2022–24. Our vision is to build a platform that champions First Nations voices and forms of cultural expression. Our implementation includes a partnership with Indigenous publisher Magabala Books to create and publish 23 resources for Reading Australia on books by First Nations writers; support for an emerging First Nations critic with a major masthead; grants to organisations and publishers to commission and publish new works by First Nations writers and artists; promotion of First Nations writers at literary festivals; procurement via Supply Nation; and cultural competency training for staff. We have a RAP working committee of 13 staff representing all areas of the business.

Governance and accountability

Copyright Agency is a signatory to the Code of Conduct for Copyright Collecting Societies.[145] Matters covered in the Code include governance and accountability, education and awareness, and complaints and disputes.

We report annually to the Code Reviewer on our compliance with the requirements of the Code, and the Code Reviewer’s report is published on our website.

In conjunction with the Government’s appointment of Copyright Agency to manage the statutory licence for education in 1990, the Attorney-General’s Department developed guidelines for collecting societies.[146]

Our Constitution (which reflects some of the requirements in the guidelines) is available from our website, as is our Corporate Governance Statement, Client Service Charter, Privacy Policy and profiles of board directors.

Our Complaints Procedure and Disputes Resolution Procedure are available on our website.

The Copyright Tribunal has powers to determine aspects of licensing arrangements, including compensation fees payable under statutory licences, and distribution arrangements.

Developments in 2021–22

• Code Reviewer’s report on collecting societies’ compliance with the Code of Conduct in 2020–21 published (available on Code of Conduct website)
• report to Code Reviewer on compliance with the Code of Conduct 2021–22 (available on Code of Conduct website)
• Triennial Review of Code (report available on Code of Conduct website)[147]

More information

• Code of Conduct website[148]
• Report by Bureau of Communications and the Arts from Review of Code of Conduct for Australian Collecting Societies[149]

[1] abs.gov.au/ausstats/abs@.nsf/mf/4221.0.

[2] https://www.universitiesaustralia.edu.au/stats-publications/

[3] https://www.ncver.edu.au/__data/assets/pdf_file/0041/9673493/Government-funded-students-and-courses-2021.pdf

[4] Number of employees covered by Copyright Agency’s licensing agreements.

[5] This year, using reporting functionality provided by our new systems, we have included ultimate recipients for whom we have made payments to agents such as literary agents and art centres.

[6] An appeal against the determination by the university sector is due to be heard in November 2022.

[7] See 5.2 Licence fees from the school sector.

[8] An appeal against the determination by the university sector is due to be heard in November 2022.

[9] copyright.com.au/licences-permission/educational-licences/private-education-providers/search-australian-educational-copyright-licence/

[10] https://www.copyright.com.au/licences-permission/government-licences/

[11] Summary at https://www.copyright.com.au/membership/licence-participation/

[12] copyright.com.au/about-us/governance/

[13] https://www.copyright.com.au/about-us/our-people/our-board/

[14] The term ‘content creators’ includes all the people involved in the development, creation and production of content, including staff of publishing companies as well as freelance contributors such as writers and illustrators.

[15] From statutory and voluntary licences, but not the artists’ resale royalty scheme or payments from Screenrights for artists.

[16] Principally Screenrights (broadcast content), APRA AMCOS (music compositions), and PPCA (recorded music).

[17] copyrighttribunal.gov.au

[18] https://www.copyright.com.au/about-us/

[19] Report to Consider what Alterations are Desirable in the Copyright Law of the Commonwealth (the Spicer Report) (1959): this report preceded the introduction of the current Copyright Act 1968.

[20] Copyright Act 1968 (Cth), available at jade.io/article/218245.

[21] Other forms of intellectual property include patents, trade marks and designs: see ipaustralia.gov.au/understanding-intellectual-property

[22] Creators have these rights in their work even if they do not own copyright.

[23] The primary copyright treaty, the Berne Convention, provides that parties are not required to have an artists’ resale right, but that if they do they must provide reciprocity to nationals of other countries that have the right. In Australia, the right is granted by the Resale Royalty Right for Visual Artists Act 2009 (Cth), overseen by the Minister for the Arts. One of the key arguments for the right is that it benefits ‘fine artists’ who receive fewer benefits from the copyright system than other creators (such as writers and composers) whose work is primarily created for copying and communication rather than the value of the ‘original’ version.

[24] copyright.com.au/duration

[25] For an overview of all the statutory licences, see Ricketson & Creswell, The Law of Intellectual Property: Copyright Designs & Confidential Information at [12.0]ff.

[26] Australia is party to a number of treaties, such as the Berne Convention administered by the World Intellectual Property Organization (WIPO) and the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS), administered by the World Trade Organization (WTO). Australia is also party to a number of bilateral and other agreements that affect copyright, such as the Australia–US Free Trade Agreement.

[27] Ricketson & Creswell, The Law of Intellectual Property: Copyright Designs & Confidential Information at [12.0].

[28] For example, the use of print music in schools is mostly done under the AMCOS print music licence rather than the statutory licence, because it allows the copying of entire works that are available for purchase (provided the school purchases the requisite number of originals), though the statutory licence remains available to schools for uses not covered by the AMCOS agreement.

[29] Copyright Agency was ‘declared’ by the Attorney General in 1990 as the collecting society for the statutory licence for education, and by the Copyright Tribunal in 1998 as the collecting society for government copies of ‘works’ and ‘published editions’.

[30] Report of the Copyright Law Committee on Reprographic Reproduction (AGPS, Canberra, 1976), known as the Franki Report.

[31] By the Copyright Amendment (Digital Agenda) Act 2000 (Cth).

[32] The Guidelines and Constitution are available at copyright.com.au/governance.

[33] Report of the Committee Appointed by the Attorney-General of the Commonwealth to Consider what Alterations are Desirable in the Copyright Law of the Commonwealth (1959), known as the Spicer Report, at [404]

[34] The statutory licence in section 183 of the Act allows the Commonwealth, States and Territories to use any copyright material for the services of the Crown. The amendments empowered the Copyright Tribunal to appoint (‘declare’) collecting societies to manage ‘government copies’. Copyright Agency was declared as the collecting society in relation to ‘works’ (other than those embodied in films and sound recordings) and ‘published editions’ in 1998. Screenrights is the declared society for broadcast content. For uses that are not ‘government copies’ managed by a declared collecting society, the government must (unless it is contrary to the public interest) notify the copyright owner and either agree terms with the copyright owner, or have terms determined by the Copyright Tribunal. The legislation does not empower the Tribunal to declare a collecting society in relation to ‘communications’ made under the statutory licence, but Copyright Agency operates as agent for its members by accepting notification and negotiating terms.

[35] Some other countries have provision for ‘extended collective licensing’, which is similar to statutory licensing but allows a copyright owner to ‘opt out’. This form of licensing originated in Scandinavian countries, and has recently been introduced in the UK.

[36] copyright.org.au

[37] See further Directors’ Report under ‘Likely developments’, particularly in relation to licence fees from the university sector and from media monitoring organisations, and investment income.

[38] Revenue includes one-off ‘retrospective’ payments for past sales of survey plans in some years.

[39] LearningField ceased operation at the end of 2019.

[40] These are allocations made in 2021–22 rather than payments. In some cases, an allocation made in one financial year is paid in a subsequent financial year.

[41] The statutory licence was first introduced in 1980 and has been amended numerous times, including in 2000 to cover digital content and communication, and in 2017 to simplify the legislative framework.

[42] There are also arrangements for use of music in schools and universities through the music collecting societies, APRA AMCOS and PPCA.

[43] CAG (Schools) reports to the Australian Education Senior Officials Committee, the National Catholic Education Commission and Independent Schools Australia. CAG is assisted by the National Copyright Unit (NCU), the specialist copyright team responsible for copyright policy and administration for Australian schools and TAFE, based in the NSW Department of Education.

[44] Since 2006, Victorian TAFEs have been represented by their own self-funded association, Victorian TAFE Association (VTA).

[45] There are 42 Australian Universities registered by TEQSA. UA represents 39. The remaining three – Torrens University Australia, University of Divinity and Avondale University – are individually licensed.

[46] An appeal against the determination by the university sector is due to be heard in November 2022.

[47] The surveys in schools were paused in March 2020 due to COVID-19, and have remained paused due to ongoing uncertainties. In accordance with their agreement for 2019–22, Copyright Agency and the Copyright Advisory Group to the Education Sector (CAG) began discussions about new data collection arrangements in 2019. Copyright Agency applied to the Copyright Tribunal for assistance with new data collection arrangements in May 2021.

[48] https://www.copyright.com.au/data-processing-protocols/

[49] https://www.acara.edu.au/reporting/national-report-on-schooling-in-australia-data-portal/school-funding/government-recurrent-expenditure-on-government-and-non-government-schools

[50] https://static-copyright-com-au.s3.amazonaws.com/uploads/2019/12/R02345-CA-surveys-in-schools-and-unis-Dec-2019.pdf

[51] Summary of licence scope at https://www.copyright.com.au/licences-permission/educational-licences/copying-under-education-licence/

[52] Summary of licence scope at https://www.cla.co.uk/licencetocopy

[53] https://www.cla.co.uk/excluded-works

[54] CLA’s online search tool enables licensees to check which publications, including online content, are covered by their licences

[55] These are a significant proportion of copying done under the Australian education statutory licence, particularly in primary schools.

[56] Copyright Licensing Agency (CLA) acts as an agent for Newspaper Licensing Agency (NLA) in education and sells the NLA licence to schools and universities on their behalf: https://www.cla.co.uk/nla-schools-licence

[57] Most schools are also covered by a licence from APRA AMCOS that allows copying of entire pieces of sheet music that the school has purchased: see https://www.apraamcos.com.au/music-licences/select-a-licence/educational-institutions

[58] As licensed (separately to the CLA licence) by Printed Music Licensing Limited https://www.cla.co.uk/schools-printed-music-licence.

[59] That would otherwise require permission from copyright owner.

[60] Where the publisher has expressly opted in to Copyright Licensing Agency’s licences.

[61] e.g. theses, dissertations, assignments, company reports, catalogues, brochures: the Australian education statutory licence allows the copying of all this material (i.e.  teacher does not have to worry about permissions requirements), but the nature of the material is taken into account when assessing the value (if any) for licensing fees.

[62] Can sometimes be an entire publication.

[63] Regulation 73(2)(c): ‘the need to ensure adequate incentive for the production of educational works, educational sound recordings and educational cinematograph films in Australia.

[64] https://www.copyright.com.au/licences-permission/educational-licences/schools/top-50-books-teachers-chose-to-copy/

[65] https://www.copyright.com.au/licences-permission/educational-licences/early-childhood-education-licence

[66] https://www.copyright.com.au/licences-permission/educational-licences/

[67] https://www.copyright.com.au/licences-permission/educational-licences/online-teaching-in-lockdown/

[68] https://www.copyright.com.au/licences-permission/educational-licences/schools/top-50-books-teachers-chose-to-copy/

[69] https://www.copyright.com.au/licences-permission/educational-licences/flex/

[70] The statutory licence is in Part VII Division 2 of the Copyright Act

[71] Screenrights is similarly declared for broadcast content.

[72] The legislation does not enable the Tribunal to ‘declare’ Copyright Agency for communication, only for ‘government copies’.

[73] Since 2018, FTEs have not been reported due to agreement on a lump sum payment. The licence fees are based on the 2017 FTEs, with provision for invoicing for additional FTEs.

[74] https://www.copyright.com.au/licences-permission/government-licences/

[75] Links from https://www.copyright.com.au/licences-permission/government-licences/

[76] https://www.copyright.com.au/licences-permission/government-licences/sales-of-survey-plans-by-governments/

[77] rightsportal.copyright.com.au/

[78] copyright.com.au/excluded-works

[79] Copyright Agency and Isentia, one of the two applicants to the Tribunal proceedings, entered into a licensing in October 2022. The Federal Court rejected Copyright Agency’s appeal against aspects of the Tribunal’s determination in October 2022.

[80] rightsportal.copyright.com.au/

[81] https://www.copyright.com.au/licences-permission/commercial-licences/

[82] https://www.copyright.com.au/licences-permission/visual-art-licences/

[83] https://copyrightagency.imagegallery.me/

[84] Royalties are paid to successors in title after an artist’s death. The legislation allows for the scheme to be extended to artists and successors in title from other countries with similar schemes, by listing those countries in regulations. At the time of writing, no countries were listed.

[85] This includes some royalties due to artists that have not yet been collected by us, and some royalties paid direct to artists.

[86] https://www.copyright.com.au/2022/04/resale-royalty-scheme-hits-11-million-milestone/

[87] Resales for $1,000 or more.

[88] All resales must be reported, and Copyright Agency determines which resales are subject to a royalty. A royalty is not payable if the artwork was acquired by the vendor before the commencement of the scheme. Other reasons for a royalty not being payable are: the artist is not an Australian national or resident, and (if the artist has died), there are no beneficiaries with the requisite connection to Australia.

[89] In some cases, artists elect to receive payment directly from the art market professional and, in some cases, artists decline payment for particular resales (e.g. charity auctions).

[90] https://www.resaleroyalty.org.au/

[91] https://www.arts.gov.au/funding-and-support/resale-royalty-scheme

[92] https://www.arts.gov.au/documents/post-implementation-review-resale-royalty-right-visual-artists-act-2009-and-resale-royalty-scheme

[93] copyright.com.au/distribution-policy

[94] This year, using reporting functionality provided by our new systems, we have included ultimate recipients for whom we have made payments to agents such as literary agents and art centres.

[95] Includes educational resources such as worksheets, activity sheets, practice tests and lesson plans.

[96] https://www.copyright.com.au/about-us/international-affiliates/

[97] The changes are explained in the information sheet available from our website.

[98] https://www.copyright.com.au/membership/payments/distribution-policy/

[99] https://www.copyright.com.au/membership/administration-fees/

[100] https://www.copyright.com.au/membership/payments/distribution-schedule/

[101] https://www.copyright.com.au/membership/payments/unpaid-allocations/

[102] copyright.com.au/culturalfund. The deduction does not apply to artists’ resale royalties or payments from Screenrights for artists.

[103] Some approvals for payment in 2022–23.

[104]copyright.com.au/culturalfund/projects-supported-by-the-cultural-fund/

[105] https://www.copyright.com.au/culturalfund/

[106] This includes amounts that will be deducted for operating costs.

[107] Based on current deduction of 17.4% for anticipated operating costs and 1.5% for Cultural Fund.

[108] Clause 17.

[109] We initially allocated to a rightsholder who advised they were not entitled to the allocation, and we are in the process of identifying another rightsholder.

[110] We initially allocated to a rightsholder who advised they were not entitled to the allocation, and we have been unable to identify another rightsholder.

[111] Surveys in schools were paused in March 2020, and have not been resumed. Copyright Agency is continuing to work on developing new methods of data collection from schools, using modern technologies, with the assistance of the Copyright Tribunal.

[112] https://static-copyright-com-au.s3.amazonaws.com/uploads/2015/04/R00561-Guidelines-for-declaring-Collecting-Societies-2001-1.pdf at Article 10.

[113] https://www.copyright.com.au/membership/administration-fees/

[114] We add some amounts rolled over to distribution pools. In 2020–21, we included unpaid allocations from foreign collecting societies in distributions for writers and artists.

[115] Access Copyright’s attempts to restore licensing revenue for its members via the Copyright Board and the courts have recently ended, after 10 years, with an adverse decision of the Supreme Court. Canadian writers and publishers now require legislative change to restore licensing arrangements.

[116] https://www.copyright.com.au/membership/payments/distribution-policy/

[117] https://www.copyright.com.au/membership/payments/unpaid-allocations/

[118] https://www.copyright.com.au/membership/administration-fees/

[119] This does not apply to artists’ resale royalties or to copyright fees for artworks in broadcasts, collected by Screenrights and distributed by Copyright Agency.

[120] This included some amounts rolled over from distributions before FY12.

[121] https://www.copyright.com.au/membership/administration-fees/

[122] https://www.copyright.com.au/about-us/our-people/

[123] Membership is open to owners of copyright and their agents.

[124] A member can be both an author and a publisher member. The class of membership determines voting entitlements for the two elected members of the board: the elected ‘author’ and the elected ‘publisher’ director.

[125] Includes: agents for artists, writers and publishers; beneficiaries of writers’ and artists’ estates; executors, administrators and trustees; surveying firms.

[126] www.ifrro.org

[127] www.cisac.org

[128] www.pdln.info

[129] https://www.copyright.com.au/membership/

[130] https://www.copyright.com.au/about-us/international-affiliates/

[131] https://www.ifrro.org/

[132] https://www.cisac.org/

[133] https://www.pdln.info/

[134] https://static-copyright-com-au.s3.amazonaws.com/uploads/2015/04/Copyright-Agency-Constitution-2017-.pdf

[135] https://www.infrastructure.gov.au/have-your-say/have-your-say-draft-copyright-reform-legislation

[136] https://www.arts.gov.au/have-your-say/new-national-cultural-policy

[137] https://www.aph.gov.au/Parliamentary_Business/Committees/House/Communications/Arts/Report

[138] https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Aboriginal_Flag/AboriginalFlag

[139] https://www.pc.gov.au/inquiries/current/indigenous-arts#report

[140] https://www.asauthors.org/news/an-update-on-the-school-storytime-agreement

[141] https://natlib.govt.nz/about-us/media/national-library-reconsiders-agreement-with-internet-archive

[142] https://publishingperspectives.com/2022/01/cautious-optimism-the-uks-copyright-exhaustion-decision-for-now/

[143] https://copyrightalliance.org/follow-new-yorks-rejection-mandatory-ebook-licensing/

[144] https://www.copyright.com.au/about-us/reconciliation-action-plan/

[145] The Code is available at copyright.com.au.

[146] There are links to the declaration and guidelines at copyright.com.au/governance

[147] https://www.copyrightcodeofconduct.org.au/triennial-reviews

[148] https://www.copyrightcodeofconduct.org.au/

[149] https://www.communications.gov.au/documents/review-code-conduct-australian-copyright-collecting-societies