The stated objectives of the Code of Conduct include “promoting confidence in Collecting Societies and the effective administration of copyright”. It is the view of Universities Australia that this objective will not be achieved until the regulatory regime governing collecting societies is reformed to impose effective oversight of the activities of these bodies. Asking whether declared statutory collecting societies, which operate with monopoly status, have complied with their own, non-mandatory Code of Conduct, does not create a framework of ensuring accountability. Rather, it asks whether they played by their own rules or not.
In its 2017 submission to the Government’s review of the Code of Conduct for Copyright Collecting Societies, Universities Australia raised concerns regarding the lack of actual oversight of declared collecting societies. There is an absence of an effective check on the ability of these organisations – Copyright Agency in particular – to exploit their monopoly positions to engage in what amounts to ‘rent seeking’ from publicly funded entities. Events since 2017, including Copyright Tribunal proceedings initiated by Copyright Agency against the university sector, have only heightened those concerns, and Universities Australia will continue to advocate for appropriate reform.
We do not consider that the existing regulatory regime, including the voluntary Code of Conduct, is capable of ensuring the requisite degree of accountability, transparency and fair conduct on the part of declared collecting societies. Nevertheless, we use this opportunity to highlight the following ways in which Copyright Agency has, in our view, failed to fully comply with both the letter and the spirit of the Code of Conduct in the 12 months to 30 June 2021.
- Failure to adopt fair and reasonable policies, procedures and conduct in connection with the setting of licence fees;
- Failure to ensure that its dealings with licensees are transparent; and
- Lack of transparency and inappropriate dealings in respect to the use of statutory monies to fund advocacy.
We urge the Code of Conduct Reviewer to have regard to these concerns when considering whether Copyright Agency has carried out its statutory role as declared collecting society conscionably, transparently, and in good faith.