Universities in dispute over copyright fees legal action

Australia’s 39 universities could face a huge increase in their copyright fees following legal action by the Copyright Agency (CA) to claim a bigger return for their copying and sharing of material in published work.

The agency launched action in the Copyright Tribunal on 12 November on behalf of its 40,000 members.

The tribunal has been asked to determine the value of the licence Australian universities rely on to copy and share extensive amounts of educational content.

The action follows a breakdown in negotiations with Universities Australia for a new licensing agreement, due to begin in 2019.

The licence covers copyright material that CA says is “a core input” into teaching at Australia’s 39 universities.

More than 10 million pages in digital and hard copy annually is covered by the licence, which the universities use for their 1.4 million students, 60,000 academics and 70,000 professional staff.

The annual total cost to the universities for the licence is currently AU$32.5 million (US$23.4 million). The agency calculates that this is equivalent to 9 cents per student each day.

But CA Chief Executive Adam Suckling said the fee had been decreasing in real terms because of inflation and the rapid growth in student numbers.

More significant, however, was the huge increase in the platforms available for copying and sharing material, Suckling said.

“The current copyright fee represents 0.11% of total universities’ expenditure of AU$28.6 billion (in 2016). But that sum is actually much higher today.

“The explosion of digital content has radically changed the way universities provide educational content to students.”

The Copyright Agency administers the educational statutory licence which, as Suckling said, provides access to an enormous amount of material.

This includes work that is printed, digitally stored and communicated to students across multiple digital platforms.

Licence fees support the Australian educational publishing industry, enabling it to continue to produce high-quality material, he said.

“Not paying a fair rate undermines the ability of publishers, authors and artists to invest, innovate and develop more Australian content.

“We’ll be asking the tribunal to assess the value of these licences in the digital age; the best method of pricing the licence, and to revisit the ways we monitor how much material is being accessed under the licence,” Suckling said.

Paying a 'fair price'

Universities Australia Chief Executive Catriona Jackson rejected the claims, saying universities paid a fair price for the content they used and would continue to do so.

“Universities pay hundreds of millions of dollars directly each year to publishers and copyright owners and that amount continues to grow,” Jackson said.

But Suckling said there were better ways of capturing usage than the current approach – such as via the provision of full digital records.

This would ensure more accurate payments to copyright creators, including the academics themselves in Australian universities.

“We will also be asking the tribunal to rule on the interim rate that Universities Australia should pay in licence fees until such time as the tribunal makes a ruling,” he said.

“We want to ensure that we are in a position to provide members with continuity of payment during the proceedings. The actual interim rate and associated terms are subject to the tribunal’s decision.”

Recent simplification amendments to the Copyright Act provided an opportunity for the tribunal to simplify and enhance the licensing arrangements with the universities.

“Unfortunately, Universities Australia has not engaged in discussions. Our action in the Copyright Tribunal will redefine the value of copyright material to the higher education sector in the digital age,” Suckling said.

But Jackson said that ‘content creators’ and copyright owners could be assured that universities would continue to pay for the use of their content.

“We have negotiated in good faith with the Copyright Agency, [whereas its] proposal is akin to saying that universities should pay twice for the content they are using.

“Universities are publicly funded institutions that have an obligation to ensure that public money is spent wisely.”