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Thursday, 4 May 1989
Page: 1841

Senator MACKLIN(8.31) —I apologise again to the Committee for the lateness of the revised edition of my proposed amendment. The way that we have had to put these amendments together means that we have run into the same problem that Senator Hill had with the first set of amendments, which is that amendments to the same clause end up dealing with two of the matters which we have already discussed in part. That concerns the exercise regarding external students. It appears in my amendments at page 2 and reads: A fair dealing with literary work (other than lecture notes) does not constitute an infringement of the copyright in the work if it is for the purpose of, or associated with, an approved course of study or research by an enrolled external student of an educational institution.

I do not want to mislead the Committee. This is in far narrower terms than that proposed originally by the Opposition. It is tightly worded but, we believe, strikes a reasonable balance between the demands, rights and requirements of the authors of the work and enables those people who are in an approved course of study and are enrolled external students to be able to make use, through the mechanism of asking somebody to make their copies for them, of fair dealing for this purpose. It does not give everything that the institutions originally wanted but, again, does strike that balance.

I seek the guidance of the Chair as to how the Committee wishes to deal with this stage of my amendments. I could move both amendments and we could discuss parts of them, because we have discussed some of them already. I propose to move Nos. 1 and 2 together, because the only other item with which they deal is media monitoring. This has meant that it appears in two sections. The first part appears in the first amendment, dealing with literary works, and the second part is in the second amendment dealing with, essentially, recordings.

As far as media monitoring is concerned, we have again sought a balance. It certainly does not provide everything that everybody sought but it is, essentially, a statutory licence mechanism which would mean that those people who wished to engage commercially in the monitoring of media would be able to enter into an agreement with the owner of that copyright; and, if such an agreement was unable to be reached, one could be achieved by use of the mechanism of the Copyright Tribunal. The other requirement, after the agreement for the payment had been determined by either of those two methods, would be that sufficient acknowledgment of the work would be made. This is not an onerous exercise because the correct designation of where a work comes from and where it was broadcast is an essential element within the business of monitoring the media anyhow. Hence, a sufficient acknowledgment is already made in all the media monitoring activities that take place in Australia.

Parts 3 and 4 come in because it may be, and often is, the case that the owner of the copyright to a work-and this is much more likely to be the case, I am informed, in the electronic media-finds a use for the monitoring services themselves. In the press world, it is well known that the monitoring of newspapers is a very well-developed industry in this country, and many media organisations themselves actually own the companies which provide those types of services. The monitoring of the electronic media is a relatively new field in Australia but probably, I suggest, adds weight to the reason why we should seek to provide a regime under which it can operate fairly and reasonably.

Newspapers are a continuing source of information; so a newspaper published today can be readily available to almost every citizen over a reasonable period throughout the rest of this year. Hence if one's attention is drawn to a particular article in a newspaper, there is no difficulty in getting a copy of it. By the ephemeral nature of broadcasting, when one's attention is drawn to a program, one does not normally have access to it. But I would remind senators in this place that they, in fact, do have access to broadcasts. They can find a copy of a news item or a current affairs item in our own library in this building. I am sure that every senator in this place has availed himself or herself of that monitoring facility carried out by our own library. I find it a bit odd that we should condone the exercise within our own premises, yet not seek to regularise it in the wider world.

Many citizens seek this facility. I will give the Minister an example which probably he will find interesting, both ideologically and factually. The Queensland Teachers Union, in my own State, has been running a very long and rigorous campaign with regard to class sizes. The union has a contract with an electronic monitoring service to provide it with instances when the issue of class sizes is debated, whether or not the Queensland Teachers Union is linked to such debate. In other words, if the Minister is broadcast on radio and makes claims about class sizes, the Queensland Teachers Union wants to know as part of its ongoing campaign to try to get the Government to lower the high numbers in many classes. That seems to me to be a perfectly reasonable means to use. After all, people who speak on radio or television, which are broadcast to everybody, cannot have any objection to the fact that what they say may be repeated. They have said it to everybody to start off with, and I fail to see why sensitivity should exist to their remarks being repeated. I find the Opposition's amendment far too broad. It does not recognise the countervailing pressure, which is that the owners of the copyright still own it and that one should not, as it were, be allowed with impunity, to copy, and make money out of, somebody else's property.

Seeking a balance-having freedom of information and the provision of information generally in the community, while trying to retain proper notions of copyright and ownership-led us to the notion, which, of course, is already partly embedded in other areas within these amendments, of a statutory licence. I know that it does not meet the position that the Opposition is mounting and that it does not meet the Government's position. However, I hope that it might be seen as an attempted rational and reasonable compromise, given the fact that the industries do exist-I refer to the electronic area and the press area-that they should exist because they offer a service, and that, indeed, the points that I have made are not made simply by me. I draw the Minister's attention to a speech made by the Attorney-General, Mr Lionel Bowen, in March 1987. It is entitled `Keeping up with Copyright'. Amongst other things regarding this matter, the Attorney-General said:

I can give you one example from my own personal experience. Like most people in public life, I need to know what other people are saying about me and about the policies I am responsible for. As well as the ideas and opinions, I need to know the words used and the context of the comment. And I want to know quickly, while an issue is current.

If someone is able to monitor the media for me, at a reasonable price, they're providing a service which no broadcaster, for example, currently wants to provide. Yet, I understand, there is concern by some that these services breach copyright because they cannot obtain licences from relevant copyright owners.

The owners' reticence is hard to understand, particularly as it seems the services are used by broadcasting stations to monitor one another. I urge copyright owners to look hard at the private licensing route. If this is not feasible, a simple, narrowly drafted, free exemption for monitoring may be necessary, or a statutory licence.

In this Bill, which the Attorney-General brought in, the Government failed to go either of those ways. The Opposition, I think, has sought to take the route of free exemption for monitoring, while we have sought to go by the route of a statutory licence. Whichever method is chosen, some method should be chosen. I believe that if the statutory licence is not available, the words of the Attorney make it sufficiently clear that the Opposition's amendment, which goes the way of the `narrowly drafted free exemption for monitoring' unfortunately will be the only other avenue. I do not think that it is the best. I believe that the statutory licence is the moderate form, and it probably meets the objections of most of the people in the area, while not necessarily satisfying everybody.

The TEMPORARY CHAIRMAN (Senator Giles) —Is the honourable senator moving his amendments 1 and 2?

Senator MACKLIN —I seek leave to move Nos. 1 and 2 together, unless the Committee objects. They deal with the same matter.

The TEMPORARY CHAIRMAN —So the honourable senator is seeking leave?

Senator Tate —I am sorry, but I do not quite understand. Perhaps I have the wrong copy in front of me, but it seems to me that No. 2 embraces two different topics-external students, and media monitoring of what might be called the new technology.

Senator MACKLIN —I indicated at the beginning of my remarks that the first new clause does, indeed, do that, but that the second embraces half of what the first one is about, though in the alternative area of the electronic media. The unfortunate thing is that, as both amendments refer to a section in the principal Act, the drafting was necessitated. I am happy, however, if the Committee so wishes, to split them in such a way that the first amendment deals only with media monitoring, stopping before clause 5b, which then becomes a separate amendment. In view of the distress that the Minister seems to be showing, that might be a reasonable way of going. Therefore, I seek to move amendment No. 1, excluding that part dealing with the new clause 5b, and amendment No. 2.

Senator Tate —I suggest that, of the honourable senator's amendment No. 1, it would be convenient to take that part dealing with new clause 5a, and all of his amendment No. 2. Is that correct?

Senator MACKLIN —No. The situation is that new clause 5b deals with the external student problem, which we have already discussed.

Senator Hill —Why do we not get that out of the way?

Senator MACKLIN —Why do we not deal with that as a separate amendment? I am happy to do that. In terms of drafting, it would probably have been easier if we had done it that way, but the suggested amendment is to the principal Act. The Opposition had the same difficulty with one of its amendments. In that case, I move:

Page 2, after clause 5, insert the following new clause:

``5b. After subsection 40 (1) of the Principal Act the following new subsections are inserted:

`(1a) A fair dealing with a literary work (other than lecture notes) does not constitute an infringement of the copyright in the work if it is for the purpose of, or associated with, an approved course of study or research by an enrolled external student of an educational institution.

(1b) In subsection (1a) the expression `lecture notes' means any literary work produced for the purpose of the course of study or research by a person lecturing or teaching in or in connection with the course of study or research.'.''.