BUCKINGHAM, Dr Louise, Chief Executive Officer and Principal Lawyer, Arts Law Centre of Australia CAMILLERI, Ms Eileen, Chief Executive Officer, Australian Copyright Council CARTER, Mr Jonathan, Chief Operating Officer, Australasian Performing Right Association and Australasian Mechanical Copyright Owners Society JOHNSTON, Ms Josephine, Chief Executive Officer, Copyright Agency CHAIR: I'd like to welcome representatives of APRA AMCOS, the Copyright Agency, the Copyright Council and the Arts Law Centre of Australia. I understand the information on parliamentary privilege and the protection of witnesses giving evidence to this committee has been provided to you. I'm now going to invite you to make a very short opening statement. If there's additional content that you want to provide as part of that, please submit a written statement to the secretariat. Ms Camilleri : Representing Australian copyright owners through its peak body members for artists and creators, the council supports the fair, transparent and ethical development of AI systems. To the extent that these systems need copyright material—the most vital component of AI products—this should be by way of licensing, just like any other use of copyright material. The principles of credit, consent and remuneration must underwrite the use of copyright material in any AI process, training or otherwise. There's no public policy reason to allow AI developers to insist that creative material that they need be assigned a zero value and be used without permission. This undermines Australia's working licensing systems, posing an existential threat to Australia's creative sector. Any attempt to change the copyright to facilitate the onshore training without consent and remuneration, rendering Australia an international outlier in breach of our treaty obligations, is to be resisted. Increasing litigation across the world shows that assertions that the scraping of content is permissible under copyright laws in other jurisdictions is misleading. The push by AI developers to weaken Australian copyright law is not a call for Australia to follow copyright arrangements in other countries but rather for Australia to become a template to leverage weaker protection of copyright material worldwide. The council, of course, applauds the government explicitly ruling out a TDM and the Prime Minister clearly articulating that no company should use Australian creative material to build or train AI without the artist's control, including the artist's control of price and value, and anything less is theft. Thank you. Ms Johnston : Copyright Agency is a not-for-profit organisation representing over 40,000 authors, visual artists and publishers. Those members span all forms of text and images from educational, academic and trade publishers, traditional and digital-only news media, and individual creators, including authors, journalists, illustrators, cartoonists, photographers and visual artists. The primary role of Copyright Agency is to ensure that there is fair payment when rights holders' work is copied or shared, and to provide simple, efficient licensing solutions to support this. We do this at scale by aggregating the rights from thousands of rights holders into blanket agreements, negotiating and collecting payment on their behalf, and distributing the revenue to the rights holders and creators whose works have been used. We also administer two statutory licence schemes in education and for the government. These licences enable teachers, lecturers and those working in government to copy and share a vast array of content from anywhere in the world without the need to negotiate individual permissions that would normally be required. At all times, this is subject to the payment of equitable remuneration or fair payment to the rights holders and creators. Those licences exist to support clear public interest outcomes. We were established over 50 years ago to address the significant threat to creators' livelihoods arising from the photocopier, a device which could copy works at scale. Over time, our licences and distributions have evolved to address new technologies, moving seamlessly to a digital environment. For example, we now administer licences which provide a legal way for media monitoring companies to scrape masses of news media content from the internet every day, and they provide millions of lines of usage data to us every year. While the technology has evolved over time, the underlying principle has always remained the same: there must be fair remuneration for the use of other people's work. Copying works for the purposes of generative AI is no different. Copyright Agency wishes to continue working with the government to ensure that any framework adopted to secure investment from major AI companies does not bypass or circumvent available licensing pathways, where the many different types of publishers, authors and artists that we represent all receive reward and remuneration for any use of their copyright-protected work. A framework that rewards only some creators and leaves others with nothing is not acceptable. In addition, we must ensure that Australian creators are able to participate in an emerging AI licensing market, and voluntary collective licensing has an important role to play in that way. The government should be looking at ways to ensure that it succeeds. We believe there is no binary choice between copyright and innovation. Ensuring that people are properly paid for the use of their work certainly rewards their intellectual and artistic endeavours, supporting a thriving cultural sector where Australian stories can continue to be told. However, it also provides ongoing investment in the ongoing creation of new material. Ultimately, this will be the high-quality data that drives future innovation. Thank you. Mr Carter : Good morning. APRA AMCOS is the music rights organisation that represents the underlying songs and lyrics in the recordings of music that Ms Herd was speaking to you about this morning. Effectively, we represent the world's commercially released repertoire of music here in Australia. This is not only the 128,000-odd Australian songwriters, composers and music publishers but also the hundreds and thousands of songwriters, composers and music publishers from around the world. They, by virtue of our reciprocal arrangements with equivalent organisations in other territories, give us their rights to represent here in Australia. As well as my role at APRA AMCOS, I'm honoured to be the chair of the global legal and policy committee of an organisation called CISAC, which is the International Confederation of Societies of Authors and Composers, which the Copyright Agency and APRA AMCOS belong to, so hopefully I can bring an international perspective to this hearing. My CEO, Dean Ormston, sends his apologies. He would have attended today, but he's attending a conference in Europe. There, he's speaking to an international community of music publishers who have expressed a significant amount of concern regarding the copyright and artificial intelligence policy debate that's currently occurring in Australia. The reason they're concerned is reporting that the government is considering amending the Australian Copyright Act to essentially allow AI companies to train here, not only on Australian copyright protected material but also on the whole world's copyright protected material. They would train here in Australia with fewer obligations to rightsholders and less risk than currently exists in the United States, where, as recently as last week, and as we heard this morning, another appellate court has found that fair use does not apply to the training of large language models. We echo ARIA's comments this morning that that question is very far from legally resolved overseas. Our position in this debate is quite simple. It is the international norm established by the Berne Convention, TRIPS and the WIPO treaties. That is, permission from, and payment to, rightsholders by way of copyright licence is required for AI companies to train on copyright protected material here in Australia. That's the position under the Copyright Act as it exists today. We advocate that it should remain so and that licensing solutions will become available. One of the reasons I say that is that, over my 20-plus years as a music copyright licensing executive, I've seen—a number of times—digital services emerge in the US where the initial position of the US firm is that copyright licence isn't required either because of fair use or because it's technologically impossible. There's then a flurry of litigation in the US and emerging from that litigation comes, essentially, a global licensing framework whereby licences are entered into initially in the US and then in territories outside of the US, like Australia. We saw that happen with Google and YouTube. We saw it happen with Meta and Facebook. I'm confident that a licensing framework will also emerge for AI firms that wish to offer their services here in Australia and train here in Australia, provided that the Australian Copyright Act is not undermined prior to that market evolving here. We're certainly not opposed to foreign investment by AI companies in Australia per se, but we do say that foreign investment by AI companies here should be on Australian terms. By that we mean the Australian government should—please—not cave in to pressure from some very significant US companies that wish to water down the current legal requirements under the Australian Copyright Act. Thank you for allowing me to appear today and I'm very happy to take any questions. CHAIR: Thanks very much. Do you have a very brief— Dr Buckingham : Yes, I'll be very brief— CHAIR: Thank you. Dr Buckingham : and not repeat what my colleagues have said. However, I want to add Arts Law's voice to emphasise the importance of creators' rights as embodied in copyright. While we have perhaps heard a little less of this so far, we'd also like to see at the forefront of discussions around moral rights what we call Indigenous cultural and intellectual property, including traditional knowledge and traditional cultural expressions and so on for our First Nations artists. Arts Law's perspective is sort of at the other end of the spectrum, certainly, from big tech's, and it's a little different to that of my colleagues in the collecting society world as well, in the sense that lots of our artists who aren't members and who span the spectrum of the arts are really the most vulnerable in the economy. So they're people who come to Arts Law for free legal advice and often don't have straightforward pathways. So we would say that, in addition to adhering to the rule of law and to a several-hundred-year-old statute that serves creators well in lots of senses and bolstering that to better serve creators, for instance, with ensuring access to actually be able to enforce rights—through a small claims tribunal, for instance, for copyright and moral rights claims—we do need to look at additional solutions for artists that would run alongside licensing—not displace licensing streams or those known pathways of revenue generation—but involve significant contribution by big tech, who have, after all, already infringed and stolen masses of work without compensation, without consent, without attribution and without respect for Australian law or sovereignty. So we see these things running together, but we do acknowledge that this is an unprecedented, unparalleled trammelling of artists' rights in all senses—and that's in terms of what the technologies can do. That's not to say that artists aren't interested in using the technologies—they are—but we've never seen anything like the capacity for transgression of rights, and we believe that the government's response should be proportionate I keep saying this, but we don't understand why anybody but creators is at this table. Big tech has already profited and will continue to do so. Surely we need to be hearing more from the people whose works and rights have been used without acknowledgement and with impunity, seemingly. That's all. CHAIR: Thank you very much. I appreciate you coming before us today. Obviously, we have sought to bring forward creators' rights holders. It's a really important part of the conversation. What I've heard from the evidence provided today and the commentary surrounding this is that it is important to get a better outcome. It doesn't seem to me at this point in time—the conversation has been around the fact that artists and creators are not being paid for the work and that there's no understanding or sense of transparency about where their work has been used to train. We have an opportunity, it would seem to me, with the interest that these companies have in coming here, to get a better outcome. I wanted to get a sense from you—noting the commitment and the point that we want to try to achieve where creators have greater control and greater opportunity for compensation for their works as a term to have these AI companies come to Australia and train on Australian data to give an Australian voice to that. What would be a framework, or what do you see as the improvements that could be made on the current status quo, noting that it just doesn't appear to be working well for either rights holders or creators at the moment? Ms Camilleri : I'll just jump in. I will take a step back and look at the two different buckets, if you like: what has happened and continues to happen offshore with training in other jurisdictions—and we've already heard that the Copyright Act has jurisdictional limits—and what's happening onshore. If what we're looking at today is somehow looking at how we can facilitate the proper onshore licensing, it's important, I think, to distinguish between the two things. Mr Carter : I would say, from a music perspective, that having identifiable datasets on which the AI firms are training is key to any kind of permission and licensing solution evolving—rather than scraping the world's repertoire and possibly asking rights holders to opt out from that arrangement. I would say, in the context of an underlying work, it's much harder to do that even than in the context of, say, a recording asset, which is nigh on impossible, as ARIA expressed as well. Without that identifiable dataset training, which permission can be granted over, it's difficult to see a workable licensing arrangement emerge. That's what we'd be asking for. Ms Johnston : In terms of the status quo, I would like to acknowledge what my colleague has said about the jurisdictional issues—that that does present a real problem, with the Australian government having limits on what it can do about regulating what is happening in other jurisdictions. To date, the training has all happened overseas. I'd also like to acknowledge the evidence given earlier today that in fact there is an emerging licensing market, and, to the extent that Australian creators or rights holders have coverage by a global publisher, they may well become the beneficiaries of that emerging global licensing market. There is an issue, however, for Australian creators, particularly individuals or independent publishers, for example, whose work has been taken without consent or without compensation overseas. It's unlikely that many of them, certainly in the text and image space, would be covered by licensing deals with these global entities. However, to the extent that that is a problem, the solution is not to undermine copyright protection for what happens in Australia, which the Australian government definitely can regulate and is well placed to ensure that the PM delivers on the promise that was made to the creative industries. There are other mechanisms that the government could look at to address the offshore theft from individual or small Australian rights holders that currently falls outside the scope of the CAIRG consultation, and it may not even be a copyright solution. But, until it's addressed, for many Australian authors and artists, confidence and trust and the deployment of ethical AI in Australia will continue to be undermined. CHAIR: I understand Mr Watts has some questions. Mr WATTS: We've got a lot of IP expertise at the table here with an international context. I am also a tragic who has practised in IP law for a long time, and the intersection between IP law and technology. None of these debates that we're dealing with here are new. I thought it would be useful to take this to 30,000 feet. Copyright is a private statutory monopoly—is that right?— Ms Johnston : Limited. Mr WATTS: created by government. The terms of that statutory monopoly are traded off against other public interests. There's the design to incentivise creation. It's to promote access. It's to promote innovation. Different countries have balanced those competing interests in different ways. We've heard about countries like Singapore and Japan that have the text and data mining exception. We've heard about countries like the United States that have a fair-use exception where courts weigh those competing interests about transformative use and whether there is a market undermining access. In Australia we have a, frankly, uniquely prescriptive Copyright Act that is different to both of those. All countries have weighed these things and come to different judgements. As we heard earlier, we're talking about what happens jurisdictionally in Australia versus the rest of the world. I just want to explore that. If there were training done in Japan or Singapore, where there is the text and data mining exception, under the status quo how would Australians be remunerated for that? That's not illegal; that is consistent with their intellectual property regime. How would Australian rights holders be remunerated? Mr Carter : I might respond first because I want to challenge the proposition that Australia's act is unique in any way in relation to its fair dealings exceptions, which exist for identified public purposes. One of the problems with, say, the fair use reliance in the US is that a for-profit AI firm reproducing copyright protected works in order to potentially create substitute products to enter the commercial market in replacement of the use of those human authored works seems, to me, to be a problematic public purpose, and I don't think a— Mr WATTS: That was decision in the Thomson Reuters v ROSS case. Mr Carter : That's right. Mr WATTS: But that's not a general generative AI case. That was in a specific use where the courts, applying fair use laws in the US, said it wasn't a transformative use. Mr Carter : That's right, Mr Watts, but there are 130 other cases on foot, I think— Mr WATTS: Undecided. Mr Carter : in the US which are undecided. I suspect that the AI firms are closely watching the outcome of those decisions, which may be why they're interested in introducing legislative reform in Australia to— Mr WATTS: Well, let's park that. I was saying that we are unique in that we are prescriptive, legislatively, about those exceptions. Every time there's a new use, a transformative use, a new digital innovation, we have to amend our Copyright Act. We had the same conversation for Google Search, Google Maps, the iPhone, the iPod, YouTube and Netflix. In the US, as you describe, their court system is able to weigh that, and they have managed to build a system that has created both the biggest digital innovation engine in world history and the biggest content creation incentives in Hollywood, the music industry and video games. We wouldn't argue that that system doesn't reward content creators, but we also see that it reflects the transformative use that's able to incentivise digital innovation. It doesn't happen here. Mr Carter : I would say the reason that it doesn't happen here is not because of Australia's fair dealing exceptions. I would again challenge your proposition that Australia's fair dealing exceptions are unique. You can look to the UK. You can look to New Zealand. You can look to any number of Western democracies with space, water and energy that would be attractive for training and building data centres, and our copyright law, as it stands, is consistent with most international norms. The US, as you would know, is an outlier in terms of its fair use exception. In answer to your question about Singapore and Japan, that is correct. They do have limited exceptions in relation to text and data mining, and it may be that subject to—you can jump in. Ms Camilleri : You probably know better than me, but they are seeking to jam the brakes on a little bit, because, where those text and data mining exceptions existed prior to the rise of AI, they're seeking to somehow contain the use of that legislative framework for AI. I don't know whether that's come up at CISAC at all, Jonathan, but— Mr WATTS: If you could share that with the committee, that'd be very useful. Ms Johnston: Singapore's doing a consultation at the moment— Ms Camilleri : Yes, they are. Ms Johnston: on the scope of their copyright act. I would add one thing about the commentary that we hear about the Australian legal system for copyright, and we keep hearing it from the tech sector. It is that it is uncertain. They need the law changed because it is uncertain. In fact, it is very, very clear that, if you copy someone else's work, you are supposed to seek permission and reach terms with them, which usually will include remuneration, which encourages licensing, which is very certain. That sets out the parameters. It's an agreed set of guardrails. It removes any uncertainty which is what we're seeing in the US with their more permissive fair use legislation, which does actually need to be tested on a case-by-case basis, essentially. Mr WATTS: But, just on a really black-and-white issue, the choice that confronts us is training that happens in a jurisdiction where there is a copyright regime different to Australia's. The status quo means we get nothing. That's what's happening now. Ms Johnston : Subject to the evidence that we heard earlier about a global emerging licensing market, some of those global deals will cover works of Australian rights holders. So it's not as black and white to say, 'Nothing will flow.' However, having said that, I do acknowledge the Australian Society of Authors as one of our very valued members. I don't speak for them, but I know that part of their advocacy is that there are a lot of individual creators who are not covered by those global deals, and those global deals may take a long time to emerge, particularly with the complexity of the litigation in the US. Therefore, the Australian government should be looking at what mechanisms are available to it to make good the offshore theft for Australian creators. It may not be a copyright solution, but until that is addressed there will be quite low confidence and trust for many in the Australian creative sector. Mr WATTS: I'll wrap up, but the only point I'm trying to make here is that there are lots of different ways of doing this around the world. We may have an opportunity to use a leverage point to cut a better deal that what Australian creatives are getting at the moment, but there are lots of different trade-offs and things that we need to be careful and consider. Dr Buckingham : Sorry, I just wanted add to Jo and the ASA's point about the artists who are currently unprotected and ensure that our First Nations artists are that the fore of our concern here. That's another element that we can't easily reconcile the government's commitment to sui generis standalone ICIP legislation and what that was intended to do in terms of bridging the gaps with what copyright doesn't protect already, the works that are already more vulnerable and the discussion now and some of the premises. Also I take issue with the notice that big tech needs extra incentives. There's no lack of activity in the sector in terms of innovation and creativity, and, if you look at our fair dealing purposes, we're talking about a scenario where to research or study, to report news, to parody or satire, to criticise or review is equally important as something like big profitable companies having a free ride and loophole to get more. That's nonsensical. I just don't really understand where the starting point for some of the debate is, particularly from the perspective of our most vulnerable creators. CHAIR: I understand we've got questions from both Senator Pocock and Mr Hastie, but I'm also noting that we've got a brief amount of time left. Senator Pocock, would you like to— Senator DAVID POCOCK: Thank you for your time. I understand that APRA AMCOS has recommended undertaking an urgent Commonwealth valuation of Australia's intellectual property asset class. What's the government's response been to this? Mr Carter : We haven't had a response to that request as yet. That was in our submission to this inquiry. Senator DAVID POCOCK: We've heard talk of something being better than nothing and that maybe these AI companies can just pay into a fund. I've heard the number of $300 million being thrown around. If all of that were to just go to recording artists, which it won't, ARIA said that less than 10 per cent, based on streaming numbers, would go to Aussie musicians. What's your take on how that amount of money gets sliced and diced and, I guess, the benefits or concerns with it? Mr Carter : APRA AMCOS, on behalf of the songwriters of underlying works in those recordings—we receive data which includes hundreds of millions of rows of data from all of the music and UGC streaming services every month. It's possible to provide this data, and we match it against our copyright ownership database, and we make sure the royalties find their way to the right copyright owners. We would agree with ARIA's evidence that it would be less than 10 per cent that would cover Australian local content, based on the data which we see in aggregate across the Australian users of music and UGC services. Ms Camilleri : I echo the evidence of Claire Pullen from the Writers Guild—what is it that they're paying for? Is it to get a free ride in perpetuity? What's it for? Senator DAVID POCOCK: We'll ask them a bit later. What is at stake is they want some sort of workaround for copyright. That's very clear. We've talked about these court cases in the US. It seems like the government AI company is trying to find some sort of workaround to copyright. Ms Johnston, my understanding is that copyright here in Australia sits within a sort of global framework of treaties and obligations, and any attempt to water down our current protections would effectively make us the weak link. These companies could set up here and hoover up works around the world and be protected. Is that a fair assessment? Ms Johnston : Yes, it is. Copyright is subject to international treaties, so it has global implications. Each jurisdiction enacts its own version of a copyright act to apply those treaties. I have two concerns arising from the global nature of it. The first is that any framework that the government looks at to encourage this investment cannot be used to bypass existing available licensing pathways. Where licensing is readily available and just takes a bit of effort and maybe a bit of resource to acquire the rights on terms that are acceptable, there is no public policy reason these developers should not be engaging with the existing available voluntary licensing pathways. The second thing is in our submission we pointed to a particularly egregious example of behaviour which happens overseas, but if we change our copyright laws in Australia it has the potential to have very unfortunate consequences. That was to do with the mass digitisation and then destruction of books. We have all read about how the AI developers are hoovering up all of the second-hand books: they digitise them, they destroy the books, and then they have this massive dataset of high-quality content or data that they can use for training and that they have paid a pittance for. If Australia were to enact some sort of framework that would enable the importation of those datasets into Australia, it would turn Australia into the data-laundering centre of the world. We must be cautious not to adopt any framework where laws that are uncomfortable or difficult or a little uncertain somewhere else miraculously get wiped clean in Australia. Bring your dodgy data sets here and launder them! That practice of digitising the books would be illegal in Australia. There is no justification for allowing it, because there is an available existing licensing pathway. The publisher's details are on the second page of every one of those books. There is no issue with finding a rights holder. I urge the committee to consider those knock-on consequences. We want Australia to be a strong supporter of intellectual property. It's a property right reflecting intellectual and artistic endeavours. We want to uphold that even while we're attracting investment. CHAIR: I'm conscious of time. I'll give one final question to Mr Hastie and then we'll wrap up. Mr HASTIE: Most of the conversation we've had today about copyright has been how our laws intersect with those of the United States and the frontier labs like Anthropic, OpenAI and the hyper-scalers like Amazon and Microsoft. I'm interested in your view on China. That's the other nation leading the AI race. They've got frontier models. Are there copyright issues with China as well? Mr Carter, I note recommendation 4 in your submission is about creating a legal right of action against anyone who uses Australian creative IP. Do you have a view on Chinese models, and should that be a part of the conversation as well? Mr Carter : We think it should. Certainly, wherever there are training of models, in whatever territory around the world, that are occurring unlawfully, and where that model is being made available for use by Australians in Australia, it is problematic. There are jurisdictional territorial issues that arise with copyright, as Mr Watts was alluding to. But where a model has been trained unlawfully, be it in China or be it in the US—because we say the status quo in the US is that it is unresolved, whether or not they're being trained unlawfully there. The status quo is not 'you can train without impunity and without regard to copyright holders' in the US. That's not the case; that question is being answered by the courts as we speak. In that instance, we would argue that there is a case for exploring whether or not a cause of action ought to be introduced into the Australian Copyright Act to make it easier for Australian copyright owners to protect the use of their works where they're being used unlawfully in other territories. Mr HASTIE: Given the relationship—whilst imperfect—with the United States, would we have a better chance of a just resolution for Australian creatives if there were copyright breaches with the United States? Mr Carter : I don't have the expertise to speak to those macropolitical issues— Mr HASTIE: Sure. It's a question that I want to put on the record, though. I think it's worth considering. Thank you. CHAIR: I'm conscious of time. We'll bring this panel to a close. Thank you very much for making yourselves available to answer our questions and for providing evidence today..