About the Code
The Code of Conduct for Collecting Societies (the Code) was developed and adopted by Australian copyright collecting societies in 2002. The Code seeks to ensure that collecting societies protect the interests of creators and users of creative works.
The Code was developed by the collecting societies with input from the Commonwealth Government and whilst it is an industry code, it is not Government regulated.
The collecting societies appoint an independent Code Reviewer to review and report on compliance with the Code. The current Code Compliance Reviewer is The Hon K E Lindgren AM, QC, a former judge of the Federal Court of Australia, and a former President of the Copyright Tribunal of Australia.
The collecting societies report annually to the Code Compliance Reviewer on their compliance with the Code and members, licensees and other stakeholders can also make submissions to the Code Reviewer.
The Australian Government Department of Communications and the Arts has recently reviewed the Code, and released a report with recommendations for improving the Code. The collecting societies are implementing those recommendations with effect from 1 July 2019.
The Code’s objectives are to facilitate efficient and fair outcomes for members and licensees by:
promoting awareness of and access to information about copyright or the resale royalty right or both and the role and function of Collecting Societies in administering copyright or the resale royalty right or both on behalf of Members;
promoting confidence in Collecting Societies and the effective administration of copyright or the resale royalty right or both in Australia;
setting out the standards of service that Members and Licensees can expect from Collecting Societies; and
ensuring that Members and Licensees have access to efficient, fair and low-cost procedures for the handling of Complaints and the resolution of Disputes involving Collecting Societies.
What the Code covers
The Code covers:
governance and accountability
transparency to members and licensees
education and awareness
complaints and disputes
What the Code doesn’t cover
The Code does not cover matters that the Copyright Tribunal can determine, such as licence fees
Broader regulatory context for the Code
The Code forms part of a broader regulatory framework that governs various aspects of collecting societies’ operations. This framework includes:
Resale Royalty Right for Visual Artists Act
Attorney-General's Guidelines for Declared Collecting Societies for Declared Collecting Societies
Privacy Act 1988
How and why the Code was established
The Code of Conduct for Copyright Collecting Societies was adopted in 2002.
It arose from a recommendation by the 1998 ‘Don’t Stop The Music’ report of the House of Representatives Standing Committee on Legal and Constitutional Affairs, and was developed by collecting societies in consultation with the Government.
Development of the Code took account of a range of standards and other documents including:
The report of the Task Force on Industry Self-Regulation, released in August 2000, which set out a series of general principles for industry self-regulation, including with respect to consultation, coverage, publicity, administration, disputes and complaints resolution, and monitoring and review.
Government’s Benchmarks for Industry-based Customer Dispute Resolution published in 1997.
The Consumer Affairs publication Codes of Conduct Policy Framework published in 1998.
Australian Standard 4269 on Complaints Handling.
Examples of codes of conduct from other industries, especially the telecommunications industry, as it had a great deal of experience with codes (e.g. use was made of documents produced by the Australian Communications Industry Forum (ACIF), which published code development guidelines and various other tools for the development of codes in the telecommunications industry).
The constitutions and/or Articles of Association of each collecting which already imposed significant obligations, particularly in respect of corporate governance and accountability.
The Attorney-General’s guidelines for declared collecting societies.
various statements of the Government’s principles, objectives and expectations.
There are now two separate Code Reviewers:
to review, annually, collecting societies’ compliance with the Code (the Code Compliance Reviewer)
to review, every three years, the Code itself (the Triennial Code Reviewer)
Both Code Reviewers are appointed, and remunerated, by the collecting societies.
The current annual Code Compliance Reviewer (since 2012) is the Hon Dr Kevin Lindgren AM QC. He is a former judge of the Federal Court and former President of the Copyright Tribunal. He was also the Triennial Code Reviewer in 2014 and 2017.
The former Code Reviewer (2002 to 2011) was the Hon JS Burchett QC. He was also a former judge of the Federal Court and former President of the Copyright Tribunal, and was the Triennial Code Reviewer in 2005, 2008 and 2011.
The Triennial Code Reviewer will be formally appointed in advance of the next triennial review, scheduled for 2021.
Review of the Code by Department of Communications and the Arts
In 2018, the Code was reviewed by the Bureau of Communications and Arts Research (BCAR) in the Department of Communications and the Arts. The final report was released on 1 April 2019.
Read more information about the review, including the issues paper and submissions here.
Read the final report here.
Recommendations and findings
Clarifying the Code’s role and purpose
Finding 1: The rationale and objectives of the Code should be clarified to better reflect the importance of achieving efficient and fair outcomes.
Recommendation 1: Add explanatory text to the Code to clarify that it was established to provide greater protections for both members and licensees, and to facilitate collecting societies’ operating efficiently, effectively and fairly.
Recommendation 2: As a consequence of recommendation 1, the Code should be amended to incorporate an additional objective which states that the Code should facilitate efficient and fair outcomes.
Finding 2: The role of the Code in the broader regulatory framework needs to be clarified given the range of instruments that regulate copyright collecting societies.
Recommendation 3: Add explanatory text to the Code to clarify how it fits into the broader regulatory environment—particularly with respect to matters that can only be resolved by the Copyright Tribunal of Australia.
Encouraging greater transparency
Finding 3: Collecting Societies could more clearly communicate how their licence fee schemes and arrangements operate.
Finding 4: The Code should require sufficient transparency around licences and fee calculations to support negotiations between collecting societies and licensees.
Recommendation 4: Amend clause 2.3 to require collecting societies in response to a reasonable request, to make available to licensees and potential licensees:
the methodology for calculating the licence fee applicable to that licensee or potential licensee, and
matters taken into consideration in determining the licence fee to the extent that such information is not commercial-in-confidence and does not otherwise directly affect a commercial negotiation between the collecting society and the licensee or potential licensee.
The Code Reviewer is able to consider whether a request or a collecting society’s response to it has been reasonable.
Finding 5: Increased transparency is required around collecting societies’ distribution of funds, having regard to issues around commercially-sensitive information and compliance costs. To support this, the Code should:
provide incentives to distribute royalties fairly and efficiently, and
support the availability of a level of information rights holders and licensees require to have confidence in the fairness and efficiency of the system.
Recommendation 5: Amend clause 2.6 to require collecting societies to detail in annual publications, at an anonymised or aggregate level where appropriate, the accounting and distribution of licence revenue. This information is to be reported in a consistent format year on year. Categories for reporting should include, but are not limited to:
classes of licensees from whom licence revenue is received,
classes of members to whom licence revenue is paid,
categories of copyright material copied / licensed in respect of which licence revenue is received, and
domestic vs international payments of licence revenue.
Recommendation 6: Amend clause 2.4 to require collecting societies, in response to a reasonable request by a licensee or their representative, to provide detailed information about particular rights payments made pursuant to a licence. Such information should only be provided to the extent that it is not commercial-in-confidence and does not otherwise directly affect a commercial negotiation between the collecting society and the licensee or potential licensee. Such information is to be provided:
on an anonymised basis, and
where the collecting society can do so at a reasonable cost.
The Code Reviewer is able to consider whether a request or the collecting society’s response to it has been reasonable.
Finding 6: Stakeholders should be able to access information about the distribution of funds by collecting societies to their members in a form that is digestible to them.
Recommendation 7: Amend clause 2.4 to require that collecting societies:
consult with members prior to making any substantive changes to their distribution policies, and
publish ‘plain English’ guidelines on their distribution policy and make them available to members and licensees.
Finding 7: Transparency should be increased around the management of funds that cannot be distributed to members or rightsholders.
Recommendation 8: Amend clause 2.6 to require detailed additional annual reporting of expired undistributed funds, including:
reasons why funds remain undistributed
steps taken to locate and distribute funds to rightsholders,
the uses for which funds are to be applied.
Recommendation 9: Amend the Code to require collecting societies to make available plain-English guidelines stating how expired undistributed funds will be allocated and spent by the collecting society, and how such expenditure will serve the interests of members.
Recommendation 10: Amend the Code to require the collecting societies to establish and maintain a consolidated online portal for the public dissemination of governance, financial and data information, including all documents relating to the collecting societies’ compliance with the Code.
Strengthening governance arrangements
Finding 8: Increased clarity around the Code Reviewer’s role in addressing complaints and disputes is required.
Recommendation 11: Clarify the role of the Code Reviewer with respect to assessing the complaints handling and dispute resolution processes of collecting societies by:
incorporating the 2017 Explanatory Memorandum into the Code itself, and
adding an explanatory note to the Code to clarify that the complaint and dispute resolution processes established by the collecting societies under the Code do not include a mechanism for the Code Reviewer to review licence fee pricing.
Finding 9: ADR processes may not be sufficiently available for disputes about licence fee pricing.
Recommendation 12: Amend the Code to include a new clause which provides that a collecting society may not unreasonably refuse a request from a licensee to engage in an ADR process in respect of a licensing dispute. Whether a collecting society has acted reasonably in response to a request made pursuant to this clause is a matter for consideration by the Code Reviewer in their annual report on the collecting societies’ compliance with the Code.
Finding 10: Communicating outcomes from the annual review of the collecting societies’ compliance with the Code needs to be improved.
Recommendation 13: Amend clause 5.2 to require the collecting societies bound by the Code to report on their compliance with each of clauses 2.1—2.8 of the Code (and 2.9 of the Code for declared collecting societies) in their annual compliance report to the Code Reviewer pursuant to clause 5.2(b) of the Code.
Recommendation 14: Amend clause 5.2(b) of the Code to require annual compliance reports prepared by the collecting societies for submission to the Code Reviewer to be made public; where such reports include confidential or commercial-in-confidence information, or otherwise include information which identifies individual members or licensees, such information is to be redacted before publication. Individual complaints should not be published; however, appropriate summary information relating to all complaints received in the reporting year should be reported.
Finding 11: There should be improved communication around non-compliance with the Code.
Recommendation 15: Amend Code to require collecting societies to notify members / licensees when the Code Reviewer finds that they have contravened the Code, options include:
Notification of contravention of the Code published on the collecting societies’ websites
Report of any contraventions of the Code itemised in collecting societies’ annual reports
Report on dedicated online portal for Code compliance and governance materials.
Recommendation 16: Amend the Code to require collecting societies to establish and maintain a contraventions register to record all historical and future contraventions of the Code.
Finding 12: The processes for implementing amendments to the Code need to be improved.
Recommendation 17: Amend Code to provide procedural steps for:
requiring collecting societies to consider recommendations of Triennial Code Reviewer to make certain amendments to the Code within a specified time frame, including voting on whether to adopt recommendations,
updating the Code to reflect the agreed amendments within a specified time frame (for example within 60 days),
advising affected stakeholders of the amendments to the Code, including plain English explanation of impact of amendments, and
reporting to the Triennial Code Reviewer on amendments made to the Code, including advising where any recommendation of the Triennial Code Reviewer as to amendment to the Code was not adopted, and the reason/s why.
Finding 13: Collecting societies should consult with affected stakeholders when considering amendments to the Code, to ensure confidence in the review system.
Recommendation 18: Amend the Code to specify that, in circumstances where the collecting societies wish to make an amendment to the Code absent a specific recommendation made pursuant to the triennial review process, such amendments are to be made in a transparent manner and subject to consultation with licensees and members.
Finding 14: The annual review of collecting societies’ compliance with the Code and the triennial review of the operation of the Code itself should be conducted by separate parties.
Recommendation 19: The Code should be amended to separate the administration of the annual review of compliance by collecting societies with the Code from the triennial review of the operation of the Code itself. The annual review would remain with Code Reviewer, but the triennial review would be conducted by a separate independent body/expert.
Recommendation 20: Amend the Code to require collecting societies to provide information to the Code Reviewer on steps taken to improve the capture and exploitation of data to achieve better business practices, to be assessed in the Code Reviewer’s annual report on compliance with the Code by the collecting societies.