Claire Clutterham (Sturt, Australian Labor Party) Share this | Hansard source

I rise today to speak in support of the Copyright Amendment Bill 2025. Like the member for Nicholls, I, too, was in a band in high school, but I'm confident that no-one would have been trying to breach our copyright! This bill operates to amend the Copyright Act 1968 to introduce an Australian orphan works scheme; to clarify the scope of section 28, relating to the performance and communication of copyright material in the course of educational instruction; and to make other minor technical amendments. The two main measures in this bill arose from a series of ministerial copyright roundtables held in 2023 which brought together stakeholders from a range of sectors to identify and discuss copyright priorities and other emerging issues, and this was done with a view to developing practical and achievable copyright reform proposals for consideration by government.

On 4 December 2023, the then attorney-general, the Hon. Mark Dreyfus KC, chaired the fourth and final of the series of roundtables on copyright, where 44 participating organisations from a wide range of sectors with an interest in copyright attended. The purpose of this roundtable was for the then attorney-general to hear from participants on the outcomes of discussions that had been held to date and to discuss potential next steps on five reform issues that had been considered in detail throughout the year. Those related to a scheme for the use of orphan works, quotations from copyright material, the use of copyright material in remote learning environments, the implications of AI for copyright law and the definition of 'broadcast' for the purposes of copyright law. So the reforms we're now being offered by this bill are intended to implement what was agreed as part of the roundtable process in relation to orphan works and section 28.

We start with section 28, which covers the performance and communication of works or other subject matter in the course of educational instruction. This section provides that, where a literary, dramatic or musical work is performed in class or otherwise in the presence of an audience and is being performed by a teacher in the course of giving educational instruction not being instruction given for profit—which does not capture a teacher earning remuneration for his or her teaching work—or by a student in the course of receiving such instruction, then the performance shall, for the purpose of the act, be deemed not to be a performance in public if the audience is limited to persons who are taking part in the instruction or are otherwise directly connected with the place where the instruction is given, like a parent or guardian of a student who is receiving instruction at that place. It covers everyone involved in the educational chain.

The amendments that are being proposed put to rest any suggestion that this section does not apply equally to copyright material regardless of whether the educational instruction is conducted online or in the physical classroom. The amendments also make clear that parents and other persons can assist students in these lessons and that persons other than a teacher, like a member of the local community, a parent or a guardian, can provide educational instruction under that provision without affecting how the relevant use of the material is treated under the act. Any ambiguity as to whether section 28 applies to online or hybrid classroom settings is removed by the proposed amendments, which are not intended to impact existing licensing arrangements that facilitate the provision of support and contribution by the creative and media sector to education.

As to the mechanics required to facilitate this important measure, they are simple. In section 28, subsection 1 (a), the words 'in the presence of' will be substituted by the word 'to' in order to address the potential limitation of the current section 28, which could be read as requiring the physical presence of an audience and to ensure section 28 covers online or hybrid classes. This may mean that the audience to which a performance may be given in the course of educational instruction may include a wholly or partially virtual audience in which some or all audience members are not physically co-located with the teacher or other person or student giving the performance. Section 28 currently applies in a live class context only, and the proposed amendments made by this schedule are not intended to change that position. The amendments are simply intended to clarify that section 28 applies where the educational instruction is given via a videoconference or livestream, which is incredibly important given the prevalence of online learning that has arisen in our educational institutions since the COVID-19 pandemic.

Other amendments to section 28 include a new section 28 subsection 9 to put beyond doubt that, for the purposes of that section, it does not matter whether the educational instruction which meets the other relevant requirements of that section is conducted in person or using technology that allows a person to take part in the educational instruction remotely or a combination of both. The underlying policy intention of this subclause is to put beyond doubt that section 28 covers online or hybrid class settings in the same way that it covers physical class settings, including where the teacher or other person giving instruction and some or all of the students are not physically co-located.

The bill also proposes a new section 28 subsection 10, which operates to clarify that, if a person is taking part in educational instruction using technology of the kind referred to in the previous subclause, for section 28 to apply, that participation must occur at the same or substantially the same time as the educational instruction is given. This means section 28 is intended to cover educational instruction given via a videoconference or live stream and is not intended to apply to a person taking part in educational instruction given via a delayed streaming of a previously recorded session. For clarity, the reference to 'the same or substantially the same time' is intended to capture instantaneous or near instantaneous participation in the educational instruction. It's necessary to include this reference to reflect that there might be a slight technical delay in the transmission of the lesson between technology of the kind referred to in the subsection.

Next—orphan works. Copyright generally requires someone to seek the permission of a copyright owner before using copyright material in a way that engages the copyright owner's rights under the act. This, plainly, cannot occur if the copyright owner cannot be identified or located. If the copyright owner cannot be identified or located in order to seek their permission to legally reutilise the work, the work is an orphan work. So the bill proposes a scheme that guides the use of these orphan works.

Where a reasonably diligent search has been undertaken for the copyright owner within a reasonable time before use of the material and a record of the search is maintained for a reasonable period, the copyright owner cannot be identified or located to obtain permission to reutilise the work and notice is given in a clear and prominent manner that the work is being used for the purposes of the orphan works scheme, then the orphan works scheme will apply. So this is a comprehensive reform that protects the right of the orphan works owner and protects the right of the person wishing to reutilise the work. It strikes the right balance.

The bill also contemplates the rare but possible scenario that the copyright owner of a work that is considered an orphan work for the purposes of the scheme does eventually come forward. Protections are provided for copyright owners under this scenario in that the scheme will allow them to seek reasonable payment for past use and for negotiations to occur in the event continued use is desired. If agreement can't be reached, then a court may set reasonable terms for continued use or provide injunctive relief.

The proposed orphan works scheme will provide prospective users with greater legal certainty and is intended to open up access to a larger collection of cultural, historical and educational works held by our cultural and educational institutions for the benefit of researchers, educators, students, family historians, creators and the wider Australian community. It will also provide copyright owners with the potential to earn new income from their works that may have unintentionally or unknowingly become orphaned—as they should ideally be identified through the requirement for a reasonably diligent search—and protections for them in the event that they are later identified or located. In this way, the scheme is intended to be balanced, proportionate and fair to users and rights holders and deliver benefits for all.

Importantly, the bill contains clarity about how it is to be determined that a reasonably diligent search has been undertaken given the background facts relevant to a work that may fall within the orphan work scheme will be different every time. The bill proposes that the competent court consider whether a reasonably diligent search was conducted for the owner of the copyright material.

Under this requirement, it is intended that the court would consider whether the search that was conducted was sufficiently diligent while having regard to the particular circumstances of use. Higher standards of search would, for example, be reasonably expected for types of material and uses that present a higher level of risk to the interests of rights holders, such as commercial uses, more vulnerable materials—including photographs and images—and culturally sensitive materials. Higher standards of search may also be required if the work is a foreign work and the copyright owner is likely to reside overseas.

The court is also required to consider whether the search was conducted within a reasonable period of time before the copyright material was used. The search should be conducted as close to the time of use as possible to make the most of available up-to-date technologies and the latest information as to the potential identity or location of the copyright owner. In this way, it's intended to lessen any risk that a copyright owner may become identifiable or locatable in the time between the search being conducted and the work being used.

The bill also contains assistance by providing a non-exhaustive list of matters the court may take into account in considering whether a search has been conducted in a reasonably diligent manner and within a reasonable period. These matters include the nature of the copyright material, with higher standards possibly applying to material that contains Indigenous Cultural and Intellectual Property, which reflects the government's commitment as outlined in Revive, to introduce standalone legislation to protect First Nations peoples knowledge and cultural experiences. The matters also include the nature, purpose and character of the infringing use, whether the owner or owners of the copyright are likely to be located in a foreign country, the actual or likely impact of the infringing use on the copyright owner or owners, any relevant industry guidelines and the way and timeframe over which the search was conducted. In essence, was it done quickly in an afternoon or was it done over an appropriate period of time using all reasonably available technological methods so there's clear guidance for those seeking to rely on this section of the act?

This bill quite rightly strengthens and modernises the Copyright Act. I commend the work of both the former attorney-general and the current Attorney-General, the Hon. Michelle Rowland, in bringing this before the parliament. I commend this bill to the House.

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