Gus O’Donnell would be 100 this year. For years he worked to enable Australian writers, including freelance journalists, to be paid photocopy royalties. The royalties are still being paid, but with digital technology taking over, for how much longer?

Journalists were among the first victims of digitisation. As a result of changes to Australia’s copyright law, negotiated in 1998 between the Media Entertainment and Arts Alliance and media proprietors, the rights for the use of journalists’ work from a digital source were granted to publishers, not writers.

In 1967 O’Donnell, a public servant and writer, joined the Australian Society of Authors and the next year was appointed to the society’s management committee and given responsibility for copyright. He protested that the creators of material being copied were entitled to compensation for their loss of book sales. When the education establishment gave that idea the flick, a furious O’Donnell set up the Australian Copyright Council and instituted legal proceedings. He was also the driving force behind the establishment of Australia’s Copyright Agency Limited.

The council, founded in 1968, is primarily concerned with providing advice about copyright law and pursuing changes to the law in response to changing times, while the agency, established in 1974, pursues, collects and distributes royalty payments to writers and artists, including Aboriginal visual artists and recording artists.

O’Donnell, then a senior officer at the Housing Department, used his office phone to lobby politicians about the exploitation of writers and artists. His correspondence with the likes of Gough Whitlam and Arthur Calwell is now at the National Library.

Yet it took 12 years of  litigation before Australian copyright law was amended to make it mandatory for educational institutions to pay a licence fee for the right to allow copyrighted material to be photocopied on their premises. Even so, high-level attempts to stymie the legislation continued. More court battles ensued until the cheat sheet was eventually ordered withdrawn and destroyed by Federal Court appeal judges. It wasn’t until 1986 that the first photostat royalty cheques began to lob.

But there was renewed controversy about the matter of Copyright Agency payments to publishers. A couple of years ago The Australian’s Luke Slattery reported publishers were receiving CAL payments of about $76 million a year, while payments to writers were in the region of $9 million. It was noted in a headline that even CAL’s administrative staff were receiving more money than the writers.

Comment on Slattery’s story included a letter to The Oz from literary agent Lyn Tranter. She advised that a contract she had then recently perused had stated that 100% of the royalties collected by CAL was to be paid to an international publisher. When she attempted, on behalf of the authors, to negotiate a 50-50 split she said the publisher threatened to drop the project. She suggested that writers are not being so well looked after by CAL and that although most of the agency’s income continues to be collected from taxpayer-funded Australian education institutions, the lion’s share goes to major publishers.

One of CAL’s author directors, James Bradley, also discussed the issue in The Australian. He stressed that publishers pass on much of the income they receive from CAL to their authors and illustrators as part of contractual agreements with those writers and artists. Slattery, however, snapped back in a footnote that “the salient point here is that neither CAL nor the publishers are able to say how much has been passed on to authors”.

Bradley advised, though, that the agency was then in the process of implementing a new and improved distribution system, CALdirect. This system is now in operation, although the latest online (February 2012) issue of  the Australian Society of Authors’ newsletter leads with this announcement:

“The ASA has concerns regarding the recent elimination of the Author Manager position at Copyright Agency (CA), under the operation of the online CALdirect system.

“While the ASA understands the removal of this position may be within the scope of normal management procedures, our concern is to establish what impact this will have on our members who are also members of CA.

“As the ASA remains to be convinced that the system can function without a dedicated author person, and does not feel all the ramifications for authors have been anticipated, we have asked CA management to agree to a joint, future review of CALdirect from the author’s perspective.

“Such a review should assess progress of the online self-service functions and CALdirect’s interface with author members, taking in experiences and information from both organisations and addressing any problems.”

Bradley in The Australian then went on to mention that CAL invests more than a million dollars a year to promote Australian writing. He pointed out that the licences CAL issues continue to enable copyrighted material to been conveniently utilised, while also ensuring rights holders are compensated. He said that were it not for those licences, corporations, government agencies, education institutions and many other organisations would have to track down individual rights holders and negotiate with them every time they wanted to use their copyrighted work. The alternative would be to risk prosecution for copyright infringement.Bradley revealed that each year more than two billion pages of copyrighted material are being photocopied, reproduced or distributed annually in Australia. At time of writing he said the licence fees for schools was assessed at the rate of $16 a pupil, while universities paid $40 a student.

But he suggested that discussions about payments may become irrelevant unless the ongoing “transition to digital” is well managed — although the technology has changed, the issues have not and challenges include a “greater resistance by users to paying for the use of copyright material in the digital environment”.

“Perhaps ironically,” he added, “given that the most vocal advocates of this view are within the education sector, this debate turns on a failure to value the written word … Would anyone think it was reasonable for music or movies to be copied for free by Australian schools and universities? Yet the principle is the same. The only difference is the medium.”

Surely these are issues that cry out for more investigation and discussion?

Meanwhile, writers and artists, who are arguably among the least well reimbursed of all Australian workers, continue to be short-changed.

One of the links on CAL’s homepage is headed: “Do we owe you money?” Click and check the alphabetical list to see if the agency is holding any royalty payments for you. Writers and artists can also register with the agency online. On the Copyright Council’s website you will find answers, compiled by legal staff, to hundreds of FAQs about copyright.

The council also provides free legal advice to authors and artists, but does not take legal action on their behalf. Yet very few authors and artists have the wherewithal to pursue a breach of copyright claim in court. Plagiarists know this. That’s why so many of them continue to exploit the work of writers and artists with impunity.

Currently most sections of the media are suffering loss of income. This has led to reports of pressure being exerted on freelance writers to accept greatly reduced rates and even to file without fee. There have been claims of young freelance writers being encouraged to do so because it will allegedly boost their profile.

There’s a lot to do if we are to build on Gus O’Donnell’s pioneering work.

*Peter Meredith’s book, Realising the vision: A history of Copyright Agency Limited 1974-2004, can be downloaded free if you enter the book’s title in the searchbox at www.copyright.com.au

Peter Fray

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