Realising the vision: A history of the Copyright Agency 1974-2004

Realising the Vision A HISTORY OF COPYRIGHT AGENCY LIMITED 1974 – 2004

PETER MEREDITH

Realising the Vision A HISTORY OF COPYRIGHT AGENCY LIMITED 1974 – 2004

PETER MEREDITH

Published in Sydney by Copyright Agency Limited Level 19, 157 Liverpool Street, Sydney NSW 2000 Australia ISBN 0-9757053-0-X ©Copyright Agency Limited 2004 ABN 53 001 228 799 This publication may only be used on the following conditions: • Copies of this publication may be made for personal use only. Commercial exploitation of the material is prohibited.

• This Copyright Agency Limited (CAL) copyright notice must be included in any copy made.

• Linking to a digital copy of the publication is permitted provided that the links are clearly acknowledged and content is not altered in any way.

• CAL does not warrant, guarantee or make any representations as to the content or suitability of the information in this publication for any purpose.

• CAL will not be liable for any claims or damages whatsoever resulting from use or reliance on information in this publication, or electronic versions of this publication.

Realising the Vision: A History of Copyright Agency Limited 1974 –2004 is available for download from the following DOI address: http://dx.doi.org/10.1275/097570530X For further information about Copyright Agency Limited, visit our website at www.copyright.com.au Designed and typeset in Univers by Voss Design, Sydney NSW Printed by Access Print Solutions, Granville NSW Acknowledgments The calligraphic illustrations within this book have been reproduced with permission from The Universal Penman, Paul A. Struck, Dover Publications, Inc. New York.

This project was made possible with support from CAL’s Research and Development Cultural Fund.

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PREFACE The history of CAL is one of a grand vision, determination and much hard work. It is the story of an inspiring figure and an important chapter in the development of Australian copyright. And it is also a reminder of the continuing challenge of ensuring that creators are properly rewarded when their works are used.

The CAL vision was Gus O’Donnell’s. He was the inspiration for many of those, like myself, who played a part in making the idea of CAL a working reality. I have been associated with CAL – in one capacity or another – since its inception, and I have been very fortunate to work with Gus in the early CAL years and then, as a member of its board, to have seen his vision realised.

I feel sure Gus would have been proud of what has been achieved. But I think he would have been especially pleased that those who are now leading CAL also have a vision of what it must do in future to make sure its success endures.

CONTENTS 1 THE MAN IN THE HAT

2

2 INTO THE FRAY

8

3 A HOUSE DIVIDED

18

4 GETTING TO ITS FEET

26

5 PARTY TIME

32

6 THE RISE AND RISE

38

7 THE FUTURE ARRIVES

46

Peter Banki October 2004, Sydney PAGE 1

1

THE MAN IN THE HAT >

The achievement of obtaining payments for photocopied pages is not just a series of events, it is a story about people and ideals, victories and defeats. Gus O’Donnell took the battle for these laws right up to the Rubicon before having to stand back and let others cross. He is one of the many names in the copyright story, but he is the one that started the journey. He lit the fire and made the story possible.

Deirdre Hill, Gus O’Donnell’s widow, former ASA executive secretary and former CAL director: The G.C. O’Donnell Story, 2003

Gus O’Donnell always saw himself as a man of the people. But above all he considered himself a man of the bush. After settling in Sydney in the early 1950s, he continued to wear a trademark country hat in the city for the rest of his years.

Not quite an akubra, but a wide-brimmed hat recognisable as rural nonetheless, it attracted attention wherever he went and is mentioned by many who remember him. Once, while at the Royal Easter Show in Sydney, he was leaning against a sheep pen, wearing his customary headgear, when an ABC reporter and his cameraman approached him. Taking Gus for a true blue country bloke—and most likely a member of the Country Party—the reporter began talking politics. Gus soon made it clear he was very much a city dweller, and a long-standing member of the Australian Labor Party (ALP) to boot. The TV crew didn’t hang around for long.

The bush hat kept him in touch with his past, reminding him of the influences that forever shaped his philosophical and political views. It also proclaimed to city people around him that he was a man apart. Deirdre Hill insists he wore it simply because he was eccentric.

Gus was Irish on his father’s side and Swedish on his mother’s, accounting for the bilingual mix of his names: Gustaf Orlaf Charles Anders O’Donnell.

His mother, Hylda Adelskold, was the daughter of a Swedish sea captain who had settled in Melbourne in the late 1800s; his father was Charles O’Donnell, one of seven siblings in an Irish Catholic family that had been farming near Birchip, a small settlement in the Wimmera area of Western Victoria, since the mid-1800s.

Hylda fell in love with Charles while she was working as a schoolteacher near Birchip. However, the young man was

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A HISTORY OF COPYRIGHT AGENCY LIMITED 1974 – 2004

THE MAN IN THE HAT already engaged to an Irish girl named Marie O’Brien, a friend of Hylda’s. In the months before August 1912, Hylda suddenly and mysteriously left Birchip and travelled to Sweden, where, on the 17th of August she gave birth to Gus. Whether she knew she was pregnant or whether she just wanted to put a difficult situation behind her is not known. What is known is that three months after Gus’s birth, Charles telegrammed and she returned immediately to Australia and married him.

Gus grew up on the O’Donnell family farm and on properties his father bought later by getting deeply into debt. Gus was a dreamer. He would withdraw behind a vacant face into another world, ‘even then searching for the meaning of himself’, as he wrote later in the third person. He added: Gawky, growing too fast.

Pretending he had dental appointments because the local

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dentist had a shelf of Hopalong Cassidy books and he started reading the first and went right through them to the last.

The scar on his face from the time Mackie’s pony kicked him.

Unconscious for hours until the doctor arrived in his gig and stitched it but left him with a lopsided nose.

Rural life was a grind occasionally punctuated by tragedy. In 1929, Charles died of pneumonia at the age of 42, when Gus was 17; then drought and the Depression rubbed out all hope of surviving on the land. In 1935 Hylda moved to Swan Hill and opened a café.

Fifty-three years later, in 1988, on a return visit to the landscape of his youth, Gus wrote in a personal diary: I tried to remember my state of mind in 1935 when I was 23, knowing that I lived in a country so

badly managed that a family of eight children, good judges of land and sheep and horses and cattle and marketing opportunities, should be picked up by a land boom and then dumped in the bust. Ruined as so many Australians had been ruined before them.

Thinking then, as now, about the kind of men who have been running our country… It was only with Whitlam that we had a taste of what it might be like if we were our own men.

Gus decided it was time to leave Australia. In 1937, aged 25, he joined the Australian administration of New Guinea as a cadet patrol officer. During World War II he served from 1942 to 1945 with the Australia New Guinea Administrative Unit (ANGAU), reaching the rank of captain and earning himself the Military Cross. After the war he lectured at the Australian

THE MAN IN THE HAT The Statute of Anne introduced two novel concepts: that authors

School of Pacific Administration in Sydney for two years before returning to New Guinea as an assistant district officer. In 1952 he resigned in disgust at what he saw as the deliberately unjust treatment of New Guineans by the Australian government.

owned the copyright of their works and that they could retain ownership for a fixed term.

Back in Australia, he settled in the Sydney suburb of Woollahra with his first wife, Leonie, whom he’d married in 1941, and took another public service job, this time with the Department of Housing. The humdrum nature of his nine-to-five routine left him free to concentrate on the more important task of writing Time Expired, a novel based on his New Guinea experiences.

According to Deirdre Hill, Gus decided after the novel’s publication that when sales reached 2000, he would join the Australian Society of Authors (ASA). He became a member in 1965.

At the time, the society was in the midst of a campaign in support of changes to

the 1912 Copyright Act recommended by the Copyright Law Review Committee (the Spicer Committee) in 1959. The society’s president, Dal Stivens, had already proposed that Australia set up a body, modelled on the British Copyright Council, to promote fairness of copyright in Australia and help authors and other artistic creators exercise their rights.

The 1912 Act had been based on the British Copyright Act of 1911, whose antecedents stretched back to the Statute of Anne of 1710. In fact concern for the rights of authors had a much longer pedigree than that. Intellectuals of classical Greece and Rome had always insisted on the authorship of their works being recognised. From then until the invention of printing, the copying of works was a painstaking manual task usually done by monks in societies that were largely illiterate, so the issue of piracy hardly ever arose (see box on page 7).

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A HISTORY OF COPYRIGHT AGENCY LIMITED 1974 – 2004

THE MAN IN THE HAT known) adopting their own individual statutes, mostly based on British law.

The Commonwealth passed its first Copyright Act in 1905, though this only supplemented state laws. The Commonwealth’s Copyright Act of 1912 was a much more comprehensive piece of legislation that replaced state laws and stood, with some amendments, for more than 50 years, even though the British Act it was based on was repealed in 1956.

Only when the printing of many copies was feasible did piracy become a reality. The Statute of Anne introduced two novel concepts: that authors owned the copyright of their works and that they could retain ownership for a fixed term. Protection of copyright went international in 1886 with the Berne Convention for the Protection of Literary and Artistic Works.

The first Australian copyright legislation was fragmented and localised, with the colonies (as Australia’s states were then

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The ASA’s campaign to change the 1912 Copyright Act was just one of many currents in an unstoppable river that was carrying Australian society towards new horizons. If copyright was very much in the air, so was social change across the entire nation. The 1960s were highly charged years, a ‘phenomenal decade’, as Donald Horne, the author of the seminal book The Lucky Country, wrote in an article in 2004. ‘It was the decade of the public opening out of new ways of

seeing Australia, all of them still with us, that offered the greatest renovation of perceptions Australians had known.’

In 1965, as an author, ASA member and ALP activist who mingled with some of the country’s most active political minds, Gus would have been tuned in to the electrifying signals of the time. His highly developed notions on fundamental human rights began to fuse with the burgeoning ideas he encountered around him about protecting authors’ rights over their work. He was, after all, now a published author himself and therefore very much on the inside of the issue.

The political activist was about to become a literary activist.

THE MAN IN THE HAT

A copy too far Nearly 1500 years ago St Columba, Scotland’s most famous saint, was at the centre of a copyright wrangle that ended on an Irish battlefield.

The king ruled against Columba, pronouncing, ‘To every cow her calf and to every book its son-book. Therefore the copy you made… belongs to Finnian.’

Born in about 521 in County Donegal, Ireland, Columba was either an O’Donnell or an O’Neill. As a monk, he indulged his passion for books, making copies of Psalters (collections of psalms), Bibles and other manuscripts for fellow monks.

When one of his former teachers, a monk named Finnian, brought from Rome the first copy of St Jerome’s Psalter to reach Ireland, Columba couldn’t resist borrowing it and secretly making a copy.

Aggrieved, Columba goaded his family and clan into declaring war on the King’s clans. During a climactic battle in 561, which the O’Donnells won, some 3,000 men died.

Finnian discovered what Columba had done and demanded the copy. When Columba refused to oblige, Finnian arraigned him before the court of King Diarmaid.

So remorseful was Columba over this that he resolved to spend the rest of his life in exile converting as many souls to Christianity as had been killed in the battle. He departed for Scotland at the age of 44 and founded a monastery on the island of Iona. In his old age he spent many hours daily copying books and documents and was working on a Psalter when he died.

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2

INTO THE FRAY >

Gus was passionate about many things, but in particular about the cause of authors…

He saw photocopying as theft.

David Catterns, QC

It wasn’t long after he joined the ASA that Gus O’Donnell picked up the copyright torch and began to run with it. In 1966 he was elected to the ASA’s management committee, each of whose members traditionally held a ‘portfolio’. Gus chose the copyright portfolio, not because he had a particular interest in the subject at the time, but, as Deirdre Hill put it, because it would involve him in the least amount of work. His attitude would change radically in a very short time.

By now the ASA’s campaign to change the Copyright Act was reaching its peak.

The society commissioned legal opinions, lobbied Commonwealth attorneysgeneral and members of parliament, and wrote letters to the daily press. Seeing that Dal Stivens’s proposal for a copyright council could further the cause, Gus decided to call a meeting of all the parties that had been supporting the ASA’s campaign. Using his office phone at the Department of Housing, he contacted 31 organisations.

The meeting that resulted was held at the office of the Australasian Performing Rights Association (APRA), a body that looked after the rights of songwriters

and music publishers. Among the groups represented at the meeting were the ASA, the Fellowship of Australian Writers, the Musicians’ Union of Australia, the Music Arrangers’ Guild and the Contemporary Art Society.

The main outcome of the meeting and subsequent exchanges was that, in January 1968, the Australian Copyright Council (ACC) was created on an interim basis, with Gus as its chairman and with funding from affiliation fees and donations. The ACC’s aims included helping creators and other copyright owners to exercise their rights effectively and promoting changes to law to maximise the

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A HISTORY OF COPYRIGHT AGENCY LIMITED 1974 – 2004

INTO THE FRAY It was photocopying without due recompense to the authors of copied work that spurred Gus into battle for writers’ rights.

fairness of copyright. The ACC came into being formally a year later.

By then Australia had a new Copyright Act. A major milestone in the protection of creators’ rights, the Copyright Act of 1968 remains the foundation stone of those rights today, though there have been a number of amendments since then. The law required that, unless copying was done for the purposes of fair dealing, such as research, and on a limited scale, the person copying had to get permission from the owner of the work. Strange to say, owners were hardly inundated with requests. Under the Act, a Copyright Tribunal was to be set up to decide disputes about royalties and licences granted by copyright owners for the reproduction of their works.

Indeed, with ever more sophisticated photocopying machines now flooding the market, the reproduction of literary work was becoming a pressing issue for

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writers. A full-page advertisement in The Australian newspaper in which Xerox made much of how easy it was to copy an entire book prompted the ASA to fire off a letter to Xerox pointing out that such copying was illegal.

More than anything else, it was photocopying without due recompense to the authors of copied work that spurred Gus into battle for writers’ rights. ‘Copyright protection and the meeting of the challenge of new technologies became his central role in life,’ author Frank Moorhouse said later.

‘He was dogged in pursuing what he perceived to be the society’s [ASA’s] and authors’ interests. He had a remarkably good strategic mind in terms of what to do next. He had also a pretty good theoretical mind because copyright quite fascinated him…’

Writing in Australian Author, the ASA’s newsletter, in 1969, Gus termed photocopying ‘an exploding revolution’

INTO THE FRAY and urged authors to make society at large aware of how severely the new technology’s unlimited use would affect authors’ earnings. At the same time, the ACC commissioned J.R. Kerrigan QC to find out precisely what protection the 1968 Copyright Act offered against the wholesale photocopying of original works in libraries and schools. His opinion, as announced in an ACC press release, was that ‘state and university libraries which offer coin-operated photocopying services to their readers are infringing the Copyright Act many times a day and secondary school teachers who give their pupils photocopies of extracts from textbooks are also committing infringements’.

The universities vigorously denied they were doing anything wrong. Faced with this intransigence, the ACC decided — reluctantly — to go to court. In 1972 it commissioned David Catterns, a young law graduate, to do some sleuthing.

‘In 1972 I met Gus O’Donnell at a party,’ David said. ‘We were talking about law and photocopying, which was his big obsession. He said to me, “I’m worried about what’s happening in universities. You’re a lawyer; would you go out and see what’s happening at the University of NSW and write me an opinion on it?” So I went to the university and saw what it was doing.’

David’s unequivocal view was that the University of NSW (UNSW) was authorising its students to make photocopies that were breaching copyright. ‘So I wrote that opinion and that got the show on the road.’

In those early days of the ACC, David struck up a friendship with Gus that was to last the rest of Gus’s life. David’s impressions of the indomitable author never changed in subsequent years. ‘He was one of the most wonderful people I’ve met in my life,’ he said. ‘He was passionate about many things, but in particular about the cause of authors.

He was generous, dogged, a very creative thinker, a passionate political leftie and a lovely friend.’

Similar sentiments were expressed by Peter Banki, a friend of David’s and also a recent law graduate, who successfully applied to the ACC when a vacancy came up in February 1974 for a second legal research officer (David having been appointed the first several months earlier, after his UNSW investigation). ‘Gus was extremely enthusiastic, an annoying and inspiring kind of person. Because David and I were trained lawyers, he would use our legal expertise to flesh out advice or analysis of what was happening to use as ammunition for his push.’

‘The three Musketeers’, as a later ACC worker called them, set to work building a legal test case against UNSW, mainly because its ViceChancellor at the time, Rupert Myers, was proving particularly difficult.

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A HISTORY OF COPYRIGHT AGENCY LIMITED 1974 – 2004

It was clear that CAL would have to wait until

INTO THE FRAY

the 1968 Copyright Act was amended before it could put in place a legally binding collection scheme.

‘We were saying to the unis, “You’ve got to negotiate with us. You can’t photocopy and not pay anybody.” They were saying either, “Who are you? You don’t represent anyone. You can’t prove it’s happening, and even if it is happening, we’re not responsible”, Peter said. ’So we attacked that last one first. We set up the case.’

They arranged for a journalist, Paul Brennan, to photocopy a story from Frank Moorhouse’s book, The Americans, Baby, and recruited Frank and his publisher, Angus & Robertson, to the cause. Frank said later he thought at the time that the ACC trio approached him both because he was an ASA member and because his book had achieved a high public profile.

‘They took me to the Marble Bar, where Henry Lawson used to drink,’ Frank said. ‘They worked on me about it and convinced me that I wouldn’t have financial problems coming from it and then I agreed to involve myself in it.’

What came to be known as the Moorhouse Case was launched in the NSW Supreme Court in May 1974, with George Masterman QC appearing for the ACC, Moorhouse and Angus & Robertson. As an ASA member, Masterman had agreed to conduct the case for free.

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INTO THE FRAY The Supreme Court ruled that although Paul Brennan had committed a breach of copyright, the university had not authorised this particular breach. But in a rider couched in more general terms, the court judged that the university had authorised other breaches of copyright by allowing the book to be photocopied on unspecified occasions.

It was a qualified win for the ACC. But then UNSW appealed in the High Court of Australia. In August 1975 three High Court judges allowed the university’s appeal, saying no proof of other breaches had been presented. However, Masterman had entered a last-minute cross-appeal on the grounds that the earlier court case should have found that the university had authorised Paul Brennan’s breach of copyright. The High Court upheld the cross-appeal too, confirming that the university had authorised an illegal act.

This was a clearer victory for the ACC. ‘They knew it had been happening and they didn’t stop it, so the responsibility was established,’ Peter said. ‘After that they took a bit more notice of us, because they knew they were responsible.’

As the Moorhouse Case had been proceeding, Gus, David and Peter had been preparing for just such a verdict.

Realising that some kind of organisation would be needed to collect royalty fees from photocopying and to distribute them to rightsholders, they registered a not-for-profit company – Copyright Agency Limited (CAL) – for this purpose in May 1974.

The company’s board was identical to the ACC’s. There were five directors: Keith Kersey of the Musicians’ Union, Peter Holderness of the Institute of Australian Photography, George Ferguson of the Australian Book Publishers’ Association (ABPA), David Kindon of the Australian Institute of

Architects, and Gus, who represented the ASA (of which he had been chairman for six years). Gus was CAL’s first chairman.

The company was first housed in the office that the ACC shared with the ASA at 252 George Street, Sydney, where it was given a desk and a filing cabinet. Kerrie Walsh started work there as a part-time office assistant and secretary the day CAL was formed and worked for both it and the ACC. ‘It was just me, Gus, Peter and David,’ Kerrie said. ‘Gus used to call me “Mrs Douglas” for some reason. He had a lot of trouble with names, so he used to associate a person with some other event or person that he’d known. So apparently I must have reminded him of a Mrs Douglas at some stage.

Everybody had a nickname.’

Soon afterwards CAL, the ASA and ACC moved to Alfred Street, Milsons Point. For the first few years of its life,

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A HISTORY OF COPYRIGHT AGENCY LIMITED 1974 – 2004

INTO THE FRAY CAL struggled along with very little money. Some came from the ACC and some from grants from the Literature Board. David and Peter drew up a standard agreement between CAL and copyright owners (authors and publishers) that instructed the agency to collect fees on their behalf and distribute them. The agency then signed up a small coterie of high-profile authors, including Tom Keneally, Frank Moorhouse, Tom Shapcott, Peter Carey, Judith Wright and others, to add weight to negotiations it was initiating with educational institutions over photocopying fees.

But the institutions refused to come to the party. To many people, the notion that educational bodies, whose raison d’eˆtre was intellectual activity after all, should be reluctant to accept that creators of intellectual work might have some rights over their creations seemed paradoxical in the extreme.

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Of the educational institutions, David Catterns said: ‘They were appalling.

Gus and I were constantly walking out of meetings with them, or I was persuading him not to walk out of meetings. They knew that the longer they stonewalled X-million bucks a year would be saved. And they were able to do that for 10 years.’

diminution of authors’ rights in that they would no longer be able to prevent copying.

It was clear that CAL would have to wait until the 1968 Copyright Act was amended before it could put in place a legally binding collection scheme. In fact, changes to the Act were already in the pipeline. A month after CAL’s founding, the federal government had set up an inquiry, led by Mr Justice Franki, into photocopying with a view to amending the Act. In its report two years later, the Franki Committee recommended, among other things, that photocopying be done under a statutory licence scheme. This alarmed everyone at CAL, where it was felt that the Franki line represented a

‘The principle of copyright is that you own the right and people have to ask you and you can say no. Under the statutory scheme people don’t have to ask you; they can just go ahead. The only thing they’ve got to do is pay you.’

‘The idea of a statutory scheme is bad theoretically because the statute gives the permission [to copy], so the owners of the right can’t say no,’ Peter Banki said.

David Catterns added: ‘Gus held to the principle that authors should voluntarily license their work, that copyright was a moral right and that authors shouldn’t have their rights taken away… We had already worked out a scheme whereby you licensed voluntarily.’

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INTO THE FRAY But first a per-page fee had to be set.

And more importantly, the educational bodies would have to agree to it.

CAL, the ASA, the ABPA and the ACC, with a vehement Gus in the vanguard, fought a fierce campaign for a voluntary licensing scheme. Xavier Herbert allowed his name to be used in a full-page press advertisement devised by Peter Carey, then working as an advertising copywriter. It read: ‘Any mug can rip off Xavier Herbert without paying him a cent… All you need is a photocopier and off you go.’ The ad won the 1980 Australian Writers’ and Art Directors’ Award for a newspaper advertisement.

it enshrined a statutory licence scheme under which educational institutions had to keep full records of photocopying but did not have to send them to CAL; it would be up to CAL, on behalf of authors, to visit institutions and inspect those records.

On the other hand, it recognised the principle that authors should be paid when their works were photocopied— though it contained so many loopholes that rightsholders could expect only nominal returns.

The authors and publishers were up against a determined educational bureaucracy addicted to unlimited free copying without permission. In the end, the power of the education lobby won the day and Franki’s recommendations were incorporated in an amended Copyright Act, which came into force in August 1981.

Still, it represented a step forward even if authors would have to wait longer for a deal that was truly equitable and, above all, workable. At least CAL could now start setting up a collecting scheme and initiate an income stream.

In fact, while all this had been happening, CAL had begun to take its first steps in that direction. In April 1980 it struck a two-year deal with two music publishers to collect music copyright fees from record companies

For authors, the new Act was very much a curate’s egg. On the one hand

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INTO THE FRAY and television stations and distribute the money to the rightsholders. The $160,000 a year this arrangement would bring in would make CAL selfsupporting at last.

On the strength of this, CAL moved into an office of its own at 30 Glen Street, Milsons Point, set up a Music Rights Division as well as a Print Rights Division and hired new staff. It also reorganised its board of directors to comprise three ASA members (one of whom was Gus), three APBA members and two others representing photographers and musicians. Gus was to be CAL’s managing director as well as the board’s chair.

Finally there was room for optimism.

The brightening mood was bolstered by a feasibility study that CAL commissioned from Price Waterhouse (now PricewaterhouseCoopers) in 1981. The study set out to gauge CAL’s income from photocopying in 10,000

educational institutions across Australia, assuming a fee of 2c per copied page. The revenue, Price Waterhouse predicted, would run into millions of dollars a year.

But first a per-page fee had to be set.

And more importantly, the educational bodies would have to agree to it.

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3

A HOUSE DIVIDED >

Authors and publishers always have a very uncomfortable relationship.

Tom Shapcott, poet, novelist, former ASA president and CAL chair

Even before the Copyright Act became enshrined in law, educational bodies were turning their energies to finding ways of circumventing its provisions. On 31 July 1981, Douglas Swan, the NSW Director-General of Education, circulated a memo to school principals detailing various strategies they could use to keep making photocopies without payment. The memo ran to six pages and ended: It is apparent from the information already provided to you that a considerable amount of copying, which is necessary in the normal course of educational instruction, can be done without infringing an owner’s copyright and without involving the making of records or payments under the Copyright Act 1968 as amended.

Frank Moorhouse, then ASA president led a deputation to Swan’s office to ask him to withdraw the memo. He refused. ‘We all walked out and went to the Customs House Hotel and had a few schooners,’ David Catterns said.

‘And then we said, “Well, we’ll sue the bastards.” And we did.’

CAL, together with four publishing companies and three authors (Tom Keneally, Donald Horne and Les Murray), launched a joint action in the NSW Supreme Court objecting to the

memo. The Memorandum Case, as it came to be called, was heard by Mr Justice McLelland in early 1982. In his verdict, the judge ordered Swan to make a number of corrections to the memo before reissuing it. CAL and its co-plaintiffs would have had to be satisfied with this partial victory had not the state government and Swan made the mistake of appealing against the decision. The appeal was heard in the Federal Court in July 1982. This time Swan came off far worse.

Dismissing the appeal with costs, the

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A HOUSE DIVIDED CAL had become paralysed by an internal squabble. It could not move until the matter was resolved.

three judges set aside the Supreme Court orders and in their place ordered the Director-General of Education to withdraw his memo and destroy it.

Further, he was not to reproduce, circulate or publish the memo again.

become paralysed by an internal squabble between the authors’ and publishers’ representatives on the board that threatened to rip the agency apart.

It could not move until the matter was resolved.

This was a much more satisfactory outcome for the authors and publishers. It was a signal that reluctant educational institutions everywhere couldn’t fail to miss; it told them there was no way they could artificially avoid copyright in that way. Now it was up to CAL to begin negotiating payment rates with them and set up a fee-collection and distribution system through its Print Rights Division. It had already decided in the previous year to apply to the Copyright Tribunal for a page fee and had arranged a $200,000 bank loan, guaranteed by the ASA and the ABPA, to cover the cost of the application.

Although a number of issues were simmering at the surface of the contretemps, deep down it was as much about Gus O’Donnell’s personality and the way he did things as anything else. Bill Mackarell, ABPA president in 1981-82 and one of the publishers’ representatives on the CAL board from 1980 to 1987, spoke later about a profound and long-standing mistrust between authors and publishers that pervaded the relationships between CAL directors. Asked what the atmosphere was like at board meetings, he replied: ‘There was no real atmosphere as such other than antipathy between Gus and everybody else, particularly between publisher members and him. He was going nowhere.’

However, by the time the Memorandum Case had reached its climax, CAL had

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A HOUSE DIVIDED Richard Walsh, one-time head of Angus & Robertson, ABPA president and CAL director, said the ABPA had at times been dissatisfied with the way CAL was being managed. ‘There definitely were elements in the ABPA who felt that Gus himself should go, that he wasn’t the right man for the job, that his attitude was far too militantly anti-publisher and that he wasn’t running a very efficient organisation,’ he said.

Sandra Forbes, ABPA executive director from 1979 to 1985 and the publishers’ main representative on the CAL board in the same period, said: ‘There was a problem with Gus O’Donnell, his personality and probably the way he just thought he was right and could tell the publishers what they should be doing. I think that was an aspect of it, but not the main one.’

Tempers began to boil over early in 1981, when apart from the issue of CAL’s

management, there was discussion over whether photocopying fees should be distributed directly to authors or to publishers, who would then forward them to authors. Gus, in his perennial role as defender of authors’ rights, stuck to his guns. According to Frank Moorhouse, Gus had always maintained that, because copyright resided in an author’s creation, not in the artefact created by a publisher, the author alone had the right to collect the fee for the photocopying of the work. ‘Gus’s position, which remained unchanged right from the beginning, was that it was… nothing to do with the publishers, and that we [authors] should be collecting the money.’

Peter Banki concurred: ‘Gus wanted protection for authors but the publishers said it was a matter to be sorted out between authors and publishers.

‘So these were the two policy issues.

And because Gus was very fierce about

all of these things, and thought they were important, it became more and more difficult. And in the end it came down to a personality thing. They [the ABPA] didn’t want to lose control and they didn’t want Gus to have it.’

The publishers’ representatives, for their part, argued that distributing money to authors through the publishers made good sense, since publishing companies already had an effective system in place to distribute royalties. Including photocopying fees in the system would add little cost or difficulty.

By mid-1981 it was clear that the ABPA representatives on the CAL board considered Gus a stumbling block to progress and wanted him out. The mutual mistrust ran deep, with each side convinced that the other would run off with any money it received. Gus suspected that the ABPA was making a push to take over CAL. Sandra Forbes said later she doubted that any of the

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A HOUSE DIVIDED publishers genuinely felt that way.

However, she added, it was understandable that the ABPA, which had injected a considerable amount of money into CAL, should want a commensurate say in how it was used.

Early in 1982, a funding crisis brought matters to a head. By January the Print Rights Division had run out of money and a few months later the music deal struck two years previously came to an end. The revenue stream dried up. Gus and Deirdre Hill—who’d been ASA executive secretary for 10 years and whom he’d married in 1975—kept CAL going on a voluntary basis, with the ASA paying some of the bills. The ABPA said it would come to CAL’s aid only if Gus resigned both as its managing director and chair. This, the ASA claimed, was a bid by the ABPA to dictate the ASA’s choice of board members.

In May 1982 the ASA management committee issued an ultimatum that

said, among other things, that if the ABPA could not agree to allow direct payments to authors, the authors’ representatives would quit the CAL board and the ASA would set up its own collection and distribution system.

This infuriated the ABPA. Peter Banki tried to mediate and called a meeting between the two sides on 6 July.

The meeting failed to resolve anything.

After addressing the directors, Bill Mackarell handed Gus letters of resignation from himself and the other publishers’ representatives—Sandra Forbes, Richard Walsh and David Pegrem—and then walked out with them. The following month, at an extraordinary general meeting of CAL’s board that noted the resignations, Bill Mackarell made the attitude of the publishers’ representatives towards the agency quite plain. The ABPA wanted control, he said. ‘It’s a nasty word, but control it is.’ After which he resigned as a CAL member. The board then

PAGE 23

A HISTORY OF COPYRIGHT AGENCY LIMITED 1974 – 2004

A HOUSE DIVIDED A single collecting agency would need to have the authority to be unchallengeable.

elected Donald Horne and Deirdre Hill as directors.

Two months later, the ABPA announced it would form its own collection and distribution body, the Australian Authors’ and Publishers’ Agency (AAPA).

Without enough money to keep CAL afloat on its own, the ASA desperately needed to find a way of healing the split. Later that September, it convened a so-called ‘committee of appraisal’, headed by Frank Moorhouse. Its other members were to be Donald Horne and David Catterns, who’d left the ACC to practice as a barrister in 1980.

Despite his great admiration and personal fondness for Gus, Frank was prepared to make concessions to the ABPA. He saw that having two collecting agencies was a serious mistake. ‘This was very politically damaging and would weaken our

PAGE 24

position because if we appeared to be making a mess of it and making it all too hard, the federal government would take it over.’

A single collecting agency would need to have the authority to be unchallengeable, Frank maintained.

‘And the way to make it beyond challenge was to have the ABPA and the ASA as the primary owners of the collecting agency. That was how I argued, but Gus was adamant that it should only be the writers and they should go it alone.’ So from the start of the investigation process, Frank made an adversary of his old friend and mentor. He later compared the ‘committee of appraisal’ to a court martial. Over a period of several days it called in some of the major ASA players in the drama and subjected them to intense questioning.

Presenting his committee’s findings to the ASA management committee in

A HOUSE DIVIDED from his two posts and Deirdre from hers, and Ray Koppe, an enthusiastic Gus supporter, quit as CAL’s company secretary. At later meetings, Frank was elected chair, Donald Horne deputy chair and Peter Holderness acting managing director.

October 1982, Frank endorsed the need for a single collecting agency and recommended that the ABPA be invited to join a reconstituted CAL board. As ASA president, he added three ‘presidential riders’: that Gus resign as CAL chair and managing director; that he take six months’ leave; and that either he or Deirdre resign from the CAL board.

Matters moved quickly after that. The management committee accepted the recommendations; Gus duly resigned

Gus refused to go quietly. As the ABPA and the ASA negotiated an agreement to share CAL’s costs equally and to take their seats on a reconstituted CAL board, he continued to maintain that such a deal was tantamount to handing the agency over to the publishers. By bringing the ABPA back into the fold the ASA had missed a golden opportunity to go it alone, he insisted. His protestations went unheeded, however, and the parties signed the agreement on 23 March 1983. On March 27 Gus resigned as a director and member of CAL. After 17 years of leading the fight for the rights of writers, Gus was now

sidelined. He went back to his writing and, although he didn’t show it outwardly, the emotional toll on him was heavy. As for Frank, 20 years on he still speaks with feeling about what he had to do. ‘It shook me and it was certainly one of the most emotionally demanding public actions I’ve ever had to take. He was in his 60s and I was in my late 30s. I came from a business family and I’d seen what happened to my father when he sacked people. So I suppose I had some preparation in my upbringing for what was involved, but it was very, very difficult and the most demanding public act I’ve ever had to deal with.’

But if Gus’s departure marked the end of one era in the continuing crusade for the rights of writers, it was also the beginning of another. As a plethora of new issues came rolling over the horizon, the scars of the authorpublisher stoush quickly healed over.

PAGE 25

4

GETTING TO ITS FEET >

‘I can recall how, as soon as I began to look into it, I saw that people were being ripped off.

I thought: This is not fair and not right and I can do something about this, and this is a worthwhile thing to do.’

Michael Fraser, CAL Chief Executive Officer

The wheels of CAL’s long-delayed plan to have the Copyright Tribunal set a page fee for photocopying began turning in mid1983 when the agency finally lodged its application.

The case, before Mr Justice Sheppard, pitted CAL against a catalogue of education bodies across Australia, including the education departments of New South Wales, Victoria, Queensland, South Australia and Western Australia, the Association of Independent Schools, the Roman Catholic Archbishop of Sydney and several tertiary institutions. CAL argued for a page rate of 4-5c; the education bodies countered with .25c per page.

Convoluted legal wrangles spun the case out till 20 March 1985 when Mr Justice Sheppard made an award of 2c per page. In handing down his decision, the judge said he hoped the rate ‘may form the basis for some sensible and ongoing discussion and negotiation about the problem’.

He added: ‘At the end of a period of a year or two the parties themselves may well agree on a revised figure or figures which will be arrived at with the benefit of the experience they will then have had.’

The Tribunal’s decision was a turning point not only in CAL’s history but also in the history of copyright in Australia.

With a page rate set, users of author’s works could calculate expenditure and CAL could work out its revenue. In an instant the way ahead became clear.

And certainly CAL was in need of clarity to help it find its way. During the preceding 18 months the company had been staggering from one financial crisis to another. By the middle of 1983, with only $92 in the bank, it was forced to vacate its Glen Street office and operate

PAGE 27

A HISTORY OF COPYRIGHT AGENCY LIMITED 1974 – 2004

GETTING TO ITS FEET CAL was on the point of closing down, having realised few of its ambitious plans to inspect photocopying records at schools and universities.

first from Peter Holderness’s home and later from the backyard office of John Hayes, a recording industry figure who succeeded Peter Holderness as company secretary early in 1984. By the end of that year, owing a total of $125,000 to the ASA and ABPA, not to mention the ”loans” for CAL’s runnng costs in the 70s and 80s, CAL’s debt was approximately $350,000. CAL was on the point of closing down, having realised few of its ambitious plans to inspect photocopying records at schools and universities. And then early in 1985 John Hayes resigned as company secretary. Things could not get much worse.

Peter Banki was quick to see the ramifications of the Copyright Tribunal’s decision. In his position as ACC executive officer, he fired off a memo on 26 March 1985 to CAL’s board in which he outlined in abrupt, bulleted sentences what the company should do immediately to capitalise on the result.

The first item on the list was ‘seek a

PAGE 28

meeting with the umbrella education bodies’. The company should also begin systematic inspections of photocopying records and organise a publicity campaign to spread the word about copyright generally and CAL’s function in particular. Staff should be hired, a business plan should be drawn up and office premises found.

Backing the plan, the board appointed Peter company secretary to help implement it and agreed to hire a temporary ‘assessor/rights officer’ to investigate whether, and to what extent, educational institutions were complying with the Copyright Act. The officer was to be paid out of a $10,000 loan from the ABPA. The person who got the job was Michael Fraser, a 29-year-old philosophy academic at Sydney University. ‘I was singularly unqualified to do such a thing,’ Michael recollected later. ‘I’d never done anything whatever in terms of business. I knew

GETTING TO ITS FEET

nothing about business or even how to run a cheque account.’

Driven by an urgent desire to quit academic life, no less than by the need to support a growing family, Michael plunged into his task with energy.

Working both from home and at the ABPA office, he made frequent forays to Macquarie University, the NSW Institute of Technology and three schools to inspect photocopying records.

‘I did this research and I collated it and I made a presentation to the CAL board.

They were very pleased. They said, “For the first time we have physicals.” That was the word they used. It meant facts and figures about what was happening out there, and some conclusions and suggestions based on facts.’

authors and publishers, should put so much effort into finding ways to avoid paying to use it. ‘I was very surprised by that, and then a bit indignant, a bit self-righteous about it on behalf of the authors and publishers. And then I… became very determined to see it through.’

In June, on the strength of Michael’s report, the board asked him to stay on for a further term as a consultant. By then the young academic’s initially pragmatic view of his new job had been transformed by what he’d discovered at the institutions he’d been inspecting. ‘I can recall how, as soon as I began to look into it, I saw that people were being ripped off. I thought: This is not fair and not right and I can do something about this, and this is a worthwhile thing to do.’

After his second term, CAL kept Michael on for a further three weeks to help draw up a business plan for the company. ‘I had no idea what a business plan was. Even so, I did a business plan and then the board approached me and asked if I’d like to put my business plan into effect. In other words, would I like to run CAL? They would appoint me as executive officer, they said.’

It struck him as scandalous that universities, which professed so piously to respect the intellectual property of

Faced with this offer, Michael finally resigned from his university job and on 13 January 1986 started working fulltime for CAL. That month, the company moved back into an office, this time in

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A HISTORY OF COPYRIGHT AGENCY LIMITED 1974 – 2004

GETTING TO ITS FEET Lack of income was to hamper CAL for some time to come even though, in July 1985, it had received its first payment.

a terrace house at 42 Alfred Street, Milsons Point. It was an unpretentious workspace, with torn carpet and peeling wallpaper, sub-let from a travel agency for $600 a month. Kerrie Walsh, who was still working at the ACC, drew up a 50page manual for Michael that contained everything he would need to know to run a small business. It began by detailing where he could buy such essentials as paper clips and sticky-tape dispensers and ended with instructions on arranging board and annual general meetings.

‘Michael and I went through the document together as we sat on the floor of the office—because there was still no furniture,’ Kerrie said.

Soon afterwards Michael bought a cheap dining table and chairs and installed a single phone in the office.

Whenever a board meeting was to be held there, extra chairs and cups had to be borrowed from the travel agency.

This was the environment that two other

PAGE 30

early CAL employees, Than Than Yee (temporary data entry clerk) and Karen Flint (secretary), shared with Michael.

Lack of income was to hamper CAL for some time to come even though, in July 1985, it had received its first payment. It came in the form of a cheque for the grand total of $16.10 from the NSW Association of Independent Schools.

Despite the modest size of the payment, its arrival was celebrated at CAL as a sign of things to come. Nevertheless, CAL would have to live on a bank overdraft for a while longer, at times teetering on the edge of financial oblivion.

Early in 1986, a series of records inspections resulted in CAL invoicing Macquarie University for $27,581 for photocopying. Stunned university officials held off paying for several months, despite three reminders.

Finally, in early July, a cheque arrived from the university for $14,228.

Although this was less than half of

GETTING TO ITS FEET

Letter from Michael Fraser to Gus O’Donnell, 1986

Payment to CAL from Macquarie University, 1986

what the CAL board called a ‘careful, small and conservative claim’, there was jubilation within the company over the arrival of its first big payment.

‘At first he was very opposed to what we were doing because it wasn’t fulfilling justice for authors and publishers. Indeed it wasn’t. It was just the first step.

On 25 July, Michael sent a copy of the cheque to Gus, together with a handwritten letter that said: ‘The payment to CAL by Macquarie University for some of their photocopying represents a victory for owners of copyright, for authors and publishers. The victory is in large part a result of your vision and efforts for CAL.’

‘But he came to change his view and to see it, in very deep terms, as a passing on of the torch and of his bequest, of his vision. I think he took enormous satisfaction from that and he also saw it very personally as something between him and me and as my carrying on CAL.’

Michael had gradually been getting to know CAL’s founder, though at first the crusty writer had been a bit daunting.

‘He was this man in a hat and a coat who used to come into the office to tell me what to do. “Don’t get any of these computers! You have to use a card system!” He kept coming in and wanting to see the books. He’d turn up during my lunch hour and ask the secretaries to show him all the accounts,’ Michael said.

On 19 June 1986 Peter Banki had resigned as CAL’s company secretary to work for a Sydney legal firm, satisfied that the agency’s future looked more secure than at any stage in its history.

Five months after quitting his university job, Michael took Peter’s place as company secretary.

PAGE 31

5

PARTY TIME >

Often in matters of copyright, people are told that their reasonable demands are going to lead to bureaucratic contradiction, expense, consumption of time and be ultimately unenforceable.

That proved not to be the situation.

Tom Keneally, author and former ASA chair

To take full advantage of the legal authority that CAL now had, it needed to cast its inspection and data collection net wide and as quickly as possible. And at the same time it had to continue signing up authors and publishers as members. The more potential recipients of payments it had on its books, the greater its justification for collecting fees.

From the time the Franki Committee had mooted a statutory licensing scheme, no one was in any doubt about how cumbersome it was going to be to implement. Now that CAL was cranking up its inspection machinery, the scheme proved to be every bit as clumsy as predicted. The record-keeping statistics were mind-boggling: CAL estimated that at universities and colleges of advanced education alone, 185 million photocopied pages had been recorded.

Further, some education institutions were less enthusiastic about having their photocopying records inspected than others and were not averse to making things difficult for CAL data collectors, either deliberately or by default. Some went so far as to claim they did no

photocopying at all, or perhaps that the dozen copies they’d recorded in four years honestly represented the entirety of their copying.

CAL board members heard about some of the problems at a meeting in mid-1986.

‘A properly made and kept record of copying is indeed rare,’ the minutes of the meeting said. ‘CAL’s task is made correspondingly more difficult, and due to the records currently being inspected being so much larger than our test inspections, and also since the records are so very poorly and irregularly kept, the time taken to key and process the records is much higher (approx x3) than estimated…’

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A HISTORY OF COPYRIGHT AGENCY LIMITED 1974 – 2004

Than Than Yee

PARTY TIME collection, the job had to be done by hand. ‘To begin with I got youngsters from the employment office to help me. We’d have pencils and paper and off we’d go.’

The following month the board heard that the effect of these and other obstacles was to ‘reduce CAL’s possible income by a major proportion, unless some claim for poor records or compensation can be made. It is not possible under these circumstances to estimate what CAL’s income will be, as records vary so much.’

Many records were so badly kept that they were useless to CAL. Michael was often at the coalface of the data collection process. Before CAL introduced computers for data

PAGE 34

The trouble sometimes started before the data collectors actually got inside a particular institution. ‘At some places they made us sit at the gate and called the police because our inspectors insisted on their right to go in and inspect records,’ Michael said.

Things didn’t get much easier when CAL acquired computers in which data collectors could store the photocopying details. In one way they made the inspection task harder since they had to be carried to the inspection site. They were unwieldy gadgets with screens so tiny that separate monitors had to be attached to them.

‘When I hired data-entry temps I would ask for strong staff, because they had to

lug these things about,’ Michael said. ‘It was useful having great strapping dataentry operators because of the animosity we faced at some places.’

Once inside institutions, the data collectors sometimes had to contend with conditions made deliberately difficult. ‘I was called out once to find one of our young staff in a cupboardsized room with one electrical outlet.

Because it was so cold, the staff member had to plug in the heater and the computer by turn. I put my foot down with that one.’

Than Than Yee began by entering data by hand into ledgers and graduated to a computer towards the end of 1986.

Over the next few years, she became adept at lugging both a computer and a monitor to institutions in places as far away as Brisbane.

‘We had to enter whatever photocopying data they’d recorded,’

PARTY TIME she said. ‘Some records were done in very bad handwriting. Others were not complete and had just an author’s name or just a publisher’s. It was very frustrating. And then of course CAL wasn’t particularly welcome at many places.’

On more than one occasion Michael had his authority to check records questioned. ‘The education institutions would ask me who I represented. I’d say “An ever-growing number of authors and publishers”. Because every week we’d sign up another one, but we had to go out and get authors and publishers to do it, to fill out this document for us. I actually took the document with me and went and met the MDs of publishing companies. In this way we gradually came to represent more and more and could make claims on their behalf.’

The Copyright Act provided for civil action if educational institutions failed

to keep records, but keeping poor records was a criminal offence.

Inspecting their records was the first step in persuading the institutions to keep good ones. The second step was to bring the various bodies to the table and point out how they were failing to fulfil their statutory obligations. At one point, finding he was getting nowhere with the Australian ViceChancellors’ Committee (AVCC), Michael was due to have a meeting with the AVCC copyright committee.

He brought along 12 boxes of noncomplying university photocopying records and left them outside the conference room while he negotiated with the committee members.

‘These lawyers were all sitting there just stonewalling, arguing about the technicalities and saying no, they were fully complying. So I told them I had 12 boxes of non-complying records outside.’ At that point Michael called one of his young assistants in and

asked him to bring in the boxes. ”He started dropping them on the table, not from very high but from a few inches so they made a slight thudding noise, one after the other. They gave up, without even looking at the documents much!’

Even though the statutory scheme was, in Michael’s words, ‘utterly impracticable’, in its elephantine way it was achieving modest results and some revenue. In mid-1986 the National Council of Independent Schools had ratified an agreement under which schools would send their records to CAL rather than have CAL inspectors visit individual schools.

More voluntary agreements with other bodies were to follow.

By the middle of 1987, the term ‘sampling’ was being heard increasingly. The word encapsulated a simplified way of assessing the amount of copying that institutions carried out.

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A HISTORY OF COPYRIGHT AGENCY LIMITED 1974 – 2004

CAL’s first major distribution: Laurie Muller, Tom Keneally

Sampling would involve a limited number of representative institutions keeping comprehensive records for only short time spans. These shortened records would then be objectively examined by an independent statistician and used to estimate the total volume of copying done.

Despite some initial opposition, most institutions came to see the advantages of sampling, and more voluntary agreements were struck.

Having heeded the complaints of CAL, the NSW Education Department and the AVCC that the statutory licensing system was unworkable, the federal government was moving towards amending the Copyright Act

PAGE 36

CAL’s first major distribution: Michael Fraser, Neil Ryan

to facilitate voluntary agreements of the kind CAL was already striking and to allow sampling.

Early in 1988 the Attorney-General approved the amendments to the Act. While the changes were awaiting cabinet approval, CAL, the ASA and the ABPA wrote to politicians in support of the changes and Tom Keneally wrote to the Prime Minister at the time, Bob Hawke. Passage of the Act was snail-paced. In May 1989 the CAL board was told: CAL’s main activity recently has been in promoting the Copyright Amendment Act, and lobbying for

its passage without amendment, especially countering harmful amendments proposed by the AVCC for exemption for external students, and by media monitors for an exemption.

There have been efforts to kill off the Bill by extensive mischievous delays, but Michael Fraser is confident the Bill will be passed.

It was—the following month.

By then CAL was preparing to make its first distribution of payments to authors and publishers. In February that year the CAL board had heard that the company’s total revenue in 1988

PARTY TIME from schools, colleges of advanced education and universities had exceeded $4 million, including $2.6 million in backpayments. It was an extraordinary figure for an organisation that only a short time before had come within days of closing its doors, so effectively had the cost of collecting been eating up income. Now at last it could repay its loans and recompense rightsholders.

The historic distribution, amounting to $1.1 million, began on 19 June at a celebration in the bistro of the State Library of NSW. Tom Keneally, Frank Moorhouse, Donald Horne and Dorothy Parker were among a number of prominent authors whom Michael welcomed to the occasion. When asked which she thought were the two most beautiful words in the English language, Dorothy Parker reportedly replied: ‘Cheque enclosed.’

Several cheques were handed out that evening, notably to Donald Horne and Neil Ryan, whose publishing company, Longman Cheshire, received $30,000.

Trevor J. Taylor, an economics teacher, accepted $900 as ‘the most copied educational author’.

Had Gus O’Donnell been there, due honour would doubtless have been heaped upon him. As it was, he was suffering from cancer and didn’t have long to live. On his behalf, Deirdre Hill accepted a blown-up copy of a cheque for $1.1 million and an award that said: This Award was presented on behalf of Australian Authors and Publishers to the Founder of CAL Gustaf C. O’Donnell in recognition of his great and unique service to Australian Copyright

Having retired from the ACC in March 1985, Gus had been living with Deirdre at their home in Avalon, where he’d been able to get back to his writing.

The month following the distribution party he died at the age of 77.

In November 1989 Michael Fraser announced to the board that budgeted revenue for 1989 would be well exceeded and that, for the first time, CAL had received income from every education sector in every Australian state. In June, reporting on the distribution party in the Sydney Morning Herald, journalist Tony Stephens had speculated about CAL’s future earnings.

‘The party may have just began,’ he wrote.

PAGE 37

6

THE RISE AND RISE >

I note that recently some commentators suggest this digital future is a time when copyright owners would give up their exclusive rights. As Minister responsible for copyright law, I would rue the day when the majority of copyright owners ceased to have control over their material.

Duncan Kerr, Minister for Justice, address to National Convergence Symposium, 13 April 1994

Litigation was the tool that CAL traditionally employed to encourage users of copyright material to abide by the rules.

Litigation defined and enforced authors’ and publishers’ rights. Litigation was Caroline Morgan’s business.

A graduate in arts law, Caroline was unhappy working with law firms in the late 1980s and was casting about for a corporate job in which she might make use of her intellectual property expertise. One day her sister phoned her to say she’d seen a legal job that looked right up her street. It was with a company named CAL, which was also the nickname given to Caroline by her family. The job seemed meant for her.

Caroline began working for CAL as a legal officer in June 1989, a week after the company’s inaugural distribution party. The previous year CAL had moved to the second floor of 64 Kippax Street, Surry Hills. It was such an unimpressive office that Caroline’s immediate worry was that the company might not have the means to pay even her modest salary. Having turned down other job offers in favour of this one, she was having second thoughts.

Caroline was one of three additional staff hired in the first flush of CAL’s

new-found revenue stream. The newcomers joined Michael, Than Than and Karen in the Surry Hills office, doubling the company’s manpower.

‘We were negotiating with the schools at the time and were using Peter Banki as our solicitor. I had to tidy up the smaller licence schemes, draft licences, negotiate licences,’ Caroline said.

‘Getting the long-term agreements was the key thing for us. It was hard work the first few years. And maybe we thought we might eventually be as

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A HISTORY OF COPYRIGHT AGENCY LIMITED 1974 – 2004

CAL’s distribution 1992: Tom Shapcott, Michael Fraser

THE RISE AND RISE Court on 9 November 1992 against the Victoria University of Technology (VUT).

big as AMCOS, the music publishers’ collecting society, which was bringing in about $12 million at the time. That was the sum total of our aspirations.’

And then there were the legal battles, numerous small ones, and a few great ones. CAL might have had up to a dozen cases running at any one time, though most would be settled out of court.

One that CAL fought in court had its beginnings early in the 1990s. For a while CAL had been concerned about the way universities were making bound anthologies, or ‘coursepacks’, of photocopied portions of works and selling them to students for up to $30 apiece. CAL took up the matter with the AVCC but, after making little headway, launched proceedings in the Federal

PAGE 40

David Catterns, who conducted the case for CAL, said: ‘We sued them under a provision in their licence that didn’t allow them to make a profit from the anthologies.’ However, the judge, Mr Justice Gummow, declared that what the university had done was licensed copying and he dismissed the case with costs. CAL appealed but lost the appeal before the Full Bench of the Federal Court more than two years later, on 28 February 1995.

‘In the end we lost on an accounting basis, that they’d really just paid for overheads. So our response to that was to bring another Copyright Tribunal case whereby we got more money for coursepacks,’ David said.

The VUT case was one of the few that CAL has lost. Caroline felt it was significant because it exposed a deep-

seated conflict between CAL and some of its members. ‘When CAL started, there was a lot of discussion about whether our job was to stamp out photocopying or to license it, claim payment and pass the revenue on to members. And that conflict about CAL’s purpose was highlighted by this case.’

Running parallel with the VUT case was what came to be known as the Nationwide News case, in which newspaper publishers made a claim for the fees that CAL distributed to journalists for the photocopying of newspaper articles, particularly by media monitoring (newspaper clippings) services.

Through 1994 the publishers and journalists (represented by their union, the Media, Entertainment and Arts Alliance (MEAA) haggled out of court.

The dispute centred on the question of who owned the copyright of newspaper articles—the journalists

THE RISE AND RISE The court also affirmed that the copies made by media monitoring services breached journalists’ copyright.

who wrote them or the companies that published them—and therefore who should receive payment when the published articles were photocopied.

In 1990 the MEAA and CAL had run a test case in the Federal Court against a media monitoring company. The court’s landmark decision was that publishers owned the copyright in their journalists’ work only for the

purpose of publication in a newspaper or magazine but that the journalists retained copyright for all other purposes, including publishing their work in book form. The court also affirmed that the copies made by media monitoring services breached journalists’ copyright.

Since then CAL had licensed media monitoring, and journalists had been receiving payment for the photocopying of their work. However, newspaper publishers were beginning to look ahead to the approaching era of electronic publishing. They were anxious to exploit its opportunities without having to get the consent of journalists to use their work in the new medium.

They didn’t want to be cut out of the digital future. Not only were they using litigation to try to change prevailing practices but they were also trying to persuade the government to amend the Copyright Act. The Minister for Justice, Duncan Kerr, found himself treading a

Board of directors 1992. Back row from left: Tom Shapcott, Peter Donoughue, Peter Banki, Oliver Freeman. Front row from left: Neil Ryan, Blanche D’Alpuget, Prof. David Throsby

PAGE 41

A HISTORY OF COPYRIGHT AGENCY LIMITED 1974 – 2004

THE RISE AND RISE fine line between the powerful media owners and the people they employed.

In November 1994 the Nationwide News case came before the Federal Court, where, in January 1995, Mr Justice Wilcox dismissed the publishers’ claim for a share in journalists’ royalty payments. In May 1996 the Full Bench dismissed the publishers’ appeal.

‘It was a major case,’ Caroline recalled.

‘In a lot of litigation, and particularly Copyright Tribunal litigation, there’s an acknowledgment that you both want to find out the answer, so let’s cooperate and get the answer as quickly as possible.

‘It was hard work and at times difficult, but also fun because you felt you were doing something for copyright.’

While litigation continued, CAL forged ahead on other fronts. Revenue

PAGE 42

rocketed from $4.3 million in 1986-90 to $18.6 million in 1996, distributions from $1.1 million in 1989 to $12.4 million in 1996, and the number of recipients from 600 to 4,144.

On the licensing front, during the first half of the 1990s the number of copying agreements rose above 1,800 and covered more than 15,000 organisations. In 1994-95 CAL struck a landmark corporate licensing deal with BHP, so that CAL members could receive payment from photocopying of their work by the company’s staff. By 1996, all State and Territory governments had been licensed.

During the same period, CAL was also active internationally. It had been a member of the International Federation of Reproduction Rights Organisations (IFRRO), an umbrella body for collecting societies worldwide, since 1989. In 1990-91 Michael was chairman of its working group on

cross-border payments. The following year he joined an IFRRO-sponsored training mission to several Asian countries and in 1992-93 was elected a director of the organisation.

Subsequently he became chair of its Asia-Pacific Region Committee and Membership Committee. By 1996 CAL had reciprocal agreements with 12 foreign collecting societies.

As for CAL’s working conditions, these improved radically in 1992 when the organisation moved into new premises on the 19th floor of 157 Liverpool Street, Sydney. In more comfortable surroundings, the company had room to grow. By 1994 it had 31 staff and a new computer system that linked all its departments—licensing, membership, sampling and distribution.

A government review of copyright collecting agencies, released in June 1995, found CAL to be well run by committed, informed staff.

CAL would have to campaign on two fronts:

THE RISE AND RISE

it needed to persuade the government to amend the Copyright Act so that the law adequately safeguarded creators’ rights in the transforming environment; and it needed, for its part, to find ways of continuing to serve its members when their work was copied digitally.

As far back as 1991, Michael Fraser had warned that, with the advent of digital technology, a new age was dawning, one that would shake the pillars of the copyright edifice that was being so painstakingly constructed.

Delivering the Colin Simpson Memorial Lecture, entitled Intellectual Property: A Twenty-First Century Oxymoron? that year, Michael said: We have entered into the first stages of a technological revolution which is crucially altering the entire book industry and the very concept of the book and journal. It seems to me that, unless CAL and its sister collecting societies come to terms with and effectively administer copyright in these new fields of electronic copying and distribution of works within the next 10 years, copyright in books will be a dead letter…

The traditional link, the connection between the author and his work,

given effect by the abstract notion of intellectual property and realised in copyright laws, which give the author control of his work, is sundered by the ease of dissemination and adaptation and manipulation of his ideas through the electronic media.

Michael warned that transnational electronic publishing conglomerates would be more powerful than traditional print publishers. Unless authors of all kinds took a stake collectively in the control of the new media of production, distribution and consumption of their works, ‘any semblance of autonomy will disappear’, he said.

To ensure it was not to be bulldozed aside by the new technology, CAL would have to campaign on two fronts: it needed to persuade the government to amend the Copyright Act so that the law adequately safeguarded creators’ rights in the

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A HISTORY OF COPYRIGHT AGENCY LIMITED 1974 – 2004

THE RISE AND RISE transforming environment; and it needed, for its part, to find ways of continuing to serve its members when their work was copied digitally.

‘The key challenge for CAL and its members lies in anticipating and squarely confronting the complex issues raised by digital technology,’ Michael said in CAL’s 1994-95 annual report. ‘We shall develop new ways of monitoring copyright use, regardless of the means of copying and transmission… Copyright law will change to accommodate these changes.’

Aware of the implications inherent in the technological changes taking place, the federal government was receptive to suggestions. ‘It is vital that the Copyright Act keeps pace with technology,’ Duncan Kerr, the Minister for Justice, said in 1994.

‘The Copyright Act is now more than 25 years old. At the time the Act was drafted, the technological environment was considerably different to that of the

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1990s. The result of this is that the Act is now in need of some rethinking in light of the new world we are entering.’

Soon afterwards Kerr set up a panel, the Copyright Convergence Group, of which Peter Banki was a member, to suggest ways of bringing copyright law ‘out of the age of Marconi and into the age of convergence’, as one newspaper put it. ‘Convergence’ was the buzzword for the aggregation of several communications media and the blurring of the distinction between users and creators. After the group released its report a few months later, the Minister announced a root-andbranch reform of the Copyright Act. The stage was set for a profound transformation of the copyright landscape.

THE RISE AND RISE

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7

THE FUTURE ARRIVES >

With the new technologies, photocopying has been transformed into digital copying—and this is copying on a massive scale. So mind-bogglingly great is the amount of such copying—where one ‘copy’ can be made available globally, at no apparent cost, and at a keystroke—that it is simply not possible to count, collect and distribute in the old way.

Dale Spender, CAL’s chair 2002 and 2003

A future that might have looked safely distant in the early 1990s arrived with unsettling speed. The entire universe of creative works, reduced to a series of numeric components, suddenly became infinitely accessible, manipulable and transmissible.

In the face of the transformation that was taking place, luddism would have been an understandable reaction. But in the copyright arena, this would have been suicidal. Gains made in the previous 20 years would have slipped through rightsholder’s fingers. Both CAL and the law had to move fast if this was to be avoided.

The law was changing, but sometimes clumsily. The federal government released the draft of what it called the Copyright Amendment (Digital Agenda) Bill in February 1999 to a mixed reception.

Congratulating the government for advancing the digital agenda to that point, Michael Fraser nevertheless said the draft legislation contained ‘several potential shortcomings’ that would expose authors and publishers to exploitation.

For one, in CAL’s view the Bill failed to comply with Australia’s international copyright responsibilities under the 1886 Berne Convention for the

Protection of Artistic and Literary Works, to which Australia had been a signatory since 1928. Nor would it meet the provisions of the World Intellectual Property Organisation’s Copyright Treaty, which CAL and the federal government had helped draft in 1996.

Over the ensuing months the government attempted to address most of the criticisms, but when it tabled the legislation in Parliament in September 1999 it still hadn’t fine-tuned the Bill’s fair dealing provisions. Rather than using a quantitative measure (for example a chapter or a percentage of

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A HISTORY OF COPYRIGHT AGENCY LIMITED 1974 – 2004

It welcomed...a new right

THE FUTURE ARRIVES

of communication…that would protect copyright and related rights when works were copied and transmitted by the new technologies. the number of words of a book) to assess what was fair, CAL preferred to look at the purpose of the copying.

When the Copyright Amendment (Digital Agenda) Act became law in March 2001, in CAL’s opinion the fair dealing problem still hadn’t been fully resolved. As well, CAL found some exceptions to the Act disturbing, particularly one allowing public and corporate libraries to sell, at cost recovery, articles or chapters online to individuals who requested them for research or study without paying royalties.

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‘Why should the financial benefit of copying original works go exclusively to help support and maintain the library and none of the benefit go to the publishing industry, the authors and the publishers who created and produced the copied books and journals?’ Michael asked.

Nevertheless, CAL saw the Digital Agenda Act as a brave response to the uncertainties generated by the new copying and communications environment. It welcomed the Act’s provision of a new right of communication to the public that would protect copyright and related rights when works were copied and transmitted by the new technologies.

CAL was also encouraged by the government’s willingness to review the Act in three years.

The government had amended the Copyright Act a few years earlier. One effect of the changes that became law

in July 1998 was to give newspaper proprietors more rights over journalists’ text.

Previously proprietors had owned the copyright in their journalists’ work only for the purpose of publication in a newspaper or magazine. The amendment gave proprietors the right to use their employees’ work in electronic publications, including websites and other databases.

However, employed journalists would still control most paper-based copying of their work. Another change was to streamline the payment of licence fees on photocopying by governments by requiring them to make their payments to the declared collecting society.

While the legislative machine was adjusting to the new technological climate, CAL too was metamorphosing on several different levels. It was about to enter the third phase of its life. In the first phase it had established its

THE FUTURE ARRIVES rights through a series of legal test cases. In the second phase it had built up an operational system to put those rights into effect. In its third phase it would need to become more than just an advocate of rightsholders and a collector and distributor of royalties. It would need to bring together users and creators in the digital world.

One of the people driving this redirection was José Palmero, who joined CAL in 1996 as financial controller. Previously he’d been with Time Warner as a financial controller and David Jones as a financial accountant. When he arrived at CAL he was impressed by the dedication and commitment of its 30-plus staff.

However, he detected a culture within the company that he felt needed to be worked on.

‘The company had mainly public-sector type working conditions and there was a strong sense of duty towards authors and publishers,’ José said.

‘The mindset was mostly about getting the money to the rightsholder at any cost. So if the rightsholder received $5 out of CAL’s distribution and it took a CAL researcher 10 hours to find the rightsholder, that was cool. Those were the kinds of things we needed to address, because there is an argument that says it’s not fair on other recipients to spend so much time and money on such a small payout.’

Certain other processes needed attention too. As far as José was concerned, there was too much document signing. ‘People were used to a structured process where they had to get a signature, check this, get another signature, and check it again, just to find the rightsholder.

‘So the company was largely geared to the distribution process. And all the legal systems and human resources systems and procedures were focused that way.

Now that’s a very good thing because

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THE FUTURE ARRIVES CAL lives for the money it distributes to rightsholders. But if you put too much focus on that the company can become inward looking and doesn’t look after the customers at large.’

The changes that flowed through the company during the latter part of

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the 1990s were system-wide and fundamental. Its structure became more corporate, conditions of employment were revised, new accounting systems were installed and more information was channelled into its processes. But the jettisoning of old ways wasn’t achieved without stress.

To a large extent there was no choice, since technological progress outside the company was driving change within it.

If the company could not keep up, its members would be the losers.

In the digital environment, CAL’s job would have to be much more than that of rights-custodian. There would be more to it than merely making sure the movement of digital content did not infringe copyright and that the creators of the content were paid. To take full advantage of the new technology, CAL would need to help build an online delivery system for intellectual property. It would need to become an agent or facilitator, helping users find what they needed, perhaps putting them in touch directly with rightsholders or creators. It would thus become the provider of a service to both clients and members.

THE FUTURE ARRIVES This called not only for a complete transformation in the company’s philosophy; in the technological realm it also required a device for tagging digital content so that it could be tracked wherever it went.

CAL was moving in both these directions early in the new century. It had already started working with educational institutions towards new ‘electronic use’ systems to track the digital uses of books and journals. It had also begun developing services to ease the transfer of, and access to, digital material: in partnership with RMIT Publishing and the National Library of Australia, it had launched the first of a number of online projects that would make available scanned journal articles, CAL’s role being to safeguard the rights of authors and publishers participating in the scheme.

In 1998 CAL became a co-founder and partner of the international INDECS

project – a major international project to develop computer systems architecture and standards allowing intellectual property to be identified and traded online. What emerged from this early work, both in Australia and overseas, on the tracking of digital content, was a system that came to be called the Digital Object Identifier (DOI). This worked much like the International Standard Book Number (ISBN) system used to identify books. A unique DOI number attached to any kind of digital content would remain with it permanently.

This meant a piece of digital content could be found online simply through its DOI. Authors, artists, photographers, film-makers, music composers and publishers could register DOI numbers for any of their digitised works with a body like CAL. The system was remarkably flexible, allowing an entire book or parts of a book to be tagged.

In May 2002 the International DOI Foundation, a not-for-profit organisation created in 1998, appointed CAL to be the first registration agency for DOIs in Australia. Under the deal, one of CAL’s tasks was to ensure that its DOI database was connected to the databases of other DOI agencies around the world, allowing tagged content to be tracked and accessed anywhere. This did not mean that CAL would host content; it would merely provide the link to content stored elsewhere.

With the tracking ability offered by DOI, the way was now clear for CAL to bring the benefits of the digital world to its clients and members. But even while the new technology was burgeoning, the old technology continued to churn out photocopies.

CAL’s traditional core services— collecting data and distributing payments—were functioning as never before. In 1996-97 the distribution was $15.6 million from photocopying

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THE FUTURE ARRIVES revenue totalling $19.4 million. In 2002-03 the corresponding figures were $33.6 million and $55.4 million.

Than Than Yee was still with the company in 2004, working as a data researcher in a team led by Trudi Mayfield, data management executive.

Among other things, data research involves finding information missing from the photocopying records that CAL receives. The internet may have made this easier than in the past, but the fundamentals of the task remained mostly unchanged in the 21st century.

Trudi, who started with CAL in 1994, said: ‘The nature of the work is still very similar to when I started. What I do now is what I used to do then but I do it slightly differently. We’ve got smarter ways of doing it now.’

Similarly, the fundamentals of sampling have changed little over the years, though computers have simplified

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many functions. Kevin Pillay joined CAL as sampling officer in 1991, when Than Than was the only data entry clerk. In 2004 Kevin, who was by then manager of business analysis research and review, had a team of around 20 staff under him working on data collection, analysis and distribution.

‘It’s all far less manual now in terms of collecting and processing, and much quicker,’ he said. ‘We get the data electronically and it goes straight into our system. That’s why we can process three million records in a month rather than in 15 years, as in the past.’

And things were about to get even easier. ‘Very soon everything will be electronically tagged so we won’t have to do any matching through our database to work out who the author or the publisher is. That tag will tell us without us having to do any processing here. Because even though we get the records electronically now, we still have

to put them through our rights database to tell us who to pay.’

In 2004, distribution of rightsholders’ payments was in the hands of Michael Whalan, CAL’s distribution manager. As far as he was concerned, the biggest difference between distribution in 2004 and the early days was in the amount and quality of information that his department was able to provide with payments.

‘The level of sophistication in what CAL does has increased remarkably. The members get far better information than they used to,’ Michael said. ‘We might give $1 million to a large publisher and its authors; that might be based on 3,000 or 4,000 records of copying. The information we can give that publisher to enable them to make an accurate distribution of the money has improved enormously.’

Distributions were more sophisticated and more accurate than ever before,

THE FUTURE ARRIVES Printing Industry Competitiveness Scheme (EPICS). The money would go towards a pilot project that would help the book industry use digital technology to benefit educational institutions. The emphasis was to be on DOI-assisted services such as the delivery of content to enable books and coursepacks to be printed on demand.

Michael said. The volume of data that CAL could process had ‘gone through the roof’ while costs as a proportion of revenue had decreased. With the advent of DOI, even further improvements were in the offing, and there would be ‘quite remarkable potential’ to automate the matching of usage with recipients.

With coursepacks, the theory was that lecturers wanting course material, perhaps text from books or journals, would go to a CAL-operated website where, through DOIs, they would be taken to the material and would download it for a fee. Then they would send it to a university print shop, where print-on-demand technology could turn out bound volumes of far higher quality than was possible with photocopying.

The universal application of DOI came a step closer when, in September 2003, the federal government granted $500,000 to CAL under its Enhanced

This system would simplify coursepack production for everybody in the chain.

For CAL, it would mean a simplified electronic mechanism for managing

rights and collecting fees on behalf of creators. In other words, managing intellectual property in networked environments could become easier.

Side-by-side with the coursepack project was a related pilot project, launched in conjunction with Sydney University Press in December 2003, that made out-of-print Australian literary classics available to readers through print–on-demand technology.

Entitled Classic Australian Works, the scheme would allow users to choose books from a website, order them and have as few or as many copies delivered to their doorstep as they required.

‘Readers want to be able to obtain anything from any publisher anywhere in the world instantaneously,’ Michael Fraser said.

‘To facilitate this we’ve brought together as partners, authors, publishers, educational institutions,

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THE FUTURE ARRIVES Then there are the more practical achievements, like the provision of more than $3 million in grants to creators from its Research and Development Cultural Fund, for projects that benefit the Australian cultural community.

legitimate collecting agency for surveyors (as happened in May 2004)?

Or of CAL’s vision for the future in which digital content of all kinds, from entire books to works of art, can appear in your home at a keystroke, all brought to you courtesy of CAL?

Even with these new initiatives, CAL continued to grow. So much so that in 2004, close to $280 million had been declared for distribution – a figure expected to reach over $290 million by 2005.

If anything, the achievements endorse CAL’s values, particularly that of respecting creators. Everyone involved with CAL since its inception has worked tirelessly towards ensuring creators are treated with the professional regard they deserve and rewarded accordingly – therefore helping to attract a continuing stream of talent into the field of creativity.

More than likely he would have taken it in his stride, for as Frank Moorhouse said, ‘He may not have foreseen the use of computers, but he saw in a visionary way that there would be other technology for copying and that it would get easier and easier and more and more widespread.’

There have been other, more quiet achievements too. Securing page rates for the copying of works by poets and illustrators was a long-held goal, going some way towards ensuring poetry would no longer be considered an ‘unviable pursuit’ by creators.

So, what would Gus O’Donnell, the Man in the Hat, have made of all this?

What would he think of Michael Fraser, as Vice-President of IFRRO, working both nationally and internationally on behalf of rightsholders? Or of the Copyright Tribunal declaring CAL the

libraries, printers and booksellers so that they can use their traditional knowledge and skills to build new channels for content. By allowing information to flow from anywhere in the world to anywhere in the world without friction or obstruction, at reasonably low cost and hopefully at high volume, we can expect to see the creators, suppliers and readers benefiting in a virtuous cycle.’

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And though Gus might not have been able to predict CAL’s current role precisely, he wouldn’t have been surprised at the way things turned out.

For a man with his sense of fair play, it would seem entirely right.

30 Years encouraging creativity supporting the community

2004 marks 30 years since Copyright Agency Limited (CAL) was incorporated.

To honour CAL’s original founders and the many others who took up their quest, Realising the Vision: A History of Copyright Agency Limited 1974 – 2004 remembers the people who contributed to CAL’s success, and acknowledges the continued efforts by CAL to protect copyright, encourage creativity and support Australia’s cultural community.

Copyright Agency Limited ABN 53 001 228 799 Level 19, 157 Liverpool Street Sydney NSW 2000 Australia Telephone +61 2 9394 7600 Facsimile +61 2 9394 7601 Email info@copyright.com.au Website www.copyright.com.au