Chapter 6: Copyright

The contribution of copyright to Australia

Copyright has a central role in content-based industries as a driver of economic value. Collectively, these industries are sometimes referred to as the ‘creative economy’ – a way of recognising the economic value of creativity and innovation underpinned by IP rights.² Copyright laws incentivise the creation of new cultural material while allowing reasonable and equitable use of copyright material in the public interest.³

The generation of IP, such as copyright, is one of 4 criteria the Australian Government uses to identify what is in scope when measuring the economic contribution of cultural and creative activity.⁴  In 2022–2023, using this methodology, it was estimated ‘cultural and creative activity’ contributed $63.7 billion to the Australian economy and was equivalent to 2.5% of Australia’s GDP.⁵  To put this into context, cultural and creative activity is comparable in size to Australia’s agriculture, forestry and fishing industry, and the accommodation and food services industry.

Cultural and creative activity has grown in absolute terms from $39.4 billion in 2008-2009⁶. Further, in 2021, 281,986 workers were employed in cultural and creative industries. Between 2016 and 2021, the number of workers in these industries increased by 10.7%, slightly lower than the growth in national employment of 12.7%.⁷

Australian Government estimates show that the cultural and creative industries with the greatest economic output include:

• advertising and promotion ($33.9 billion)
• print media and publishing (excluding internet) ($30.5 billion)
• film and television activities ($17.5 billion)
• architecture services ($14 billion).

Research findings commissioned by the Australian Copyright Council in 2020 demonstrated that these industries are supported by copyright to some degree.⁸  The advertising services sub-industry grew the fastest between 2014 and 2018 at an average 2.8% compound annual growth rate.⁹

Looking more closely at a particular copyright-dependent industry, research commissioned by Creative Australia found that in 2021-22 the Australian games industry generated $284.4 million in revenue and employed 2,104 full-time equivalent workers. This was a 59% increase from the previous year, and a 250% increase since 2015.¹⁰  This growth in value was due to the collaboration between Australian game developers and Australian game music workers who are having global critical and commercial success. It demonstrates the importance of interconnectedness across Australian copyright-dependent industries to generate economic value.

Use of copyright content

Copyright law provides mechanisms by which creators and other copyright owners can maintain control over their work. The system is designed to provide creators with adequate incentives to create and disseminate new content. It also facilitates various uses of copyright material. These include collective licensing arrangements that are voluntary or, in some public interest circumstances, mandatory. Public interest exceptions enable some uses of copyright material without the copyright owner’s permission.

The value of licensing through collecting societies

A significant portion of the economic contribution attributable to copyright takes the form of direct licensing arrangements between copyright owners and users.

Australia’s copyright arrangements also include collecting societies. These bodies collect fees from licensing arrangements that allow large volumes of copyright material to be put to various uses and distribute the fees to the owners of the creative works.

Educational institutions, governments and businesses commonly rely on collective licensing to access copyright material.

The annual reports of collecting societies provide insight into the scale at which copyright material is used and the returns provided to creative workers. In 2023–24:

• $630 million in Australian royalties were paid to music industry rights-holders by the Australasian Performing Right Association and Australasian Mechanical Copyright Owners Society, together known as APRA AMCOS.¹¹
• $107 million was allocated to more than 22,000 rights-holders, including writers, artists, publishers and agents by the Copyright Agency. Collective licensing by the Copyright Agency also indirectly benefits other creative industries workers, such as writers and illustrators working in-house or with contractual entitlements to a share of the Copyright Agency’s payments.¹²
• $48.4 million was distributed by the Phonographic Performance Company of Australia to its members, including recording artists and record labels,¹³  and
• $50.1 million was distributed to copyright owners in the audio-visual sector – such as producers, directors, broadcasters and agents – by Screenrights.¹⁴

Copyright Infringement and Enforcement

In general, copyright is infringed when someone:

• does one of the exclusive acts reserved to the copyright owner without that owner's permission, or
• does certain things (such as selling, importing, hiring out or exhibiting) with items that were made in a way that infringed copyright.

Examples of copyright infringement could include downloading music, TV shows or movies from the internet, photocopying a book, or making a recording of a live performance, without permission and/or paying to do so.

Copyright infringement may harm Australia’s creative ecosystem and broader economy by reducing or diverting income that creators of and investors in original material rely on for their financial sustainability.

Copyright owners need to be able to take reasonable steps to protect and enforce their rights as part of a well-functioning copyright system. To this end, the current system includes a range of enforcement mechanisms (including industry-driven and statute-based mechanisms) to address unauthorised uses of copyright material. These include:

• copyright owners (or representatives) approaching alleged infringers directly (e.g. direct communication such as a ‘cease and desist’ letter, seeking the rectification of an alleged infringement)
• copyright owners negotiating with other industry participants to enter into voluntary partnerships or other agreed-upon actions to address particular forms of infringement
• copyright owners taking legal action through the courts, or parties utilising mediation, alternative dispute resolution and other non-court remedies in the first instance to resolve disputes
• the website blocking scheme, which allows for the blocking of overseas websites that are available to Australian consumers, which have the primary purpose or primary effect of infringing or facilitating an infringement of copyright, and
• statutory notice and take-down procedures.

In addition, the Copyright Act also allows copyright owners to take legal action against someone who does things to circumvent technological protection measures (technical tools designed to prevent copyright infringement, such as IP blocking based on location) used to protect their material without being able to rely on a relevant exception.

At the same time, it is important that consumers, service providers and other businesses are clear about when they can use copyright materials and in what circumstances.

Copyright law and artificial intelligence

In 2024, the intersection of copyright law and artificial intelligence was a topical issue both in Australia and internationally. This is because copyright is relevant across the AI value chain. Copyright materials are crucial inputs for the development of much high-quality AI, and there are copyright questions relevant to AI outputs, including when and how materials created with the assistance of AI may be protected by copyright, and who might be liable if AI-generated material infringes copyright.

On 5 December 2023, the Attorney-General announced the establishment of a Copyright and Artificial Intelligence Reference Group (CAIRG) to better prepare for future copyright challenges emerging from AI. The CAIRG is a standing mechanism through which the Attorney-General's Department is engaging with stakeholders across a wide range of sectors, including the creative, media and technology sectors, to consider copyright and AI issues in a careful and consultative way. This engagement is informing the department’s preparation of advice to Government identifying key policy problems, legal uncertainties and/or regulatory ‘gaps’ at the intersection of AI and copyright, along with potential solutions (legislative or non-legislative) to address these issues. Information about the department's work with the CAIRG is available on the department's website.¹⁵

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