Is licensing company records legal in Australia?

1. Identify the works and the acts comprised in copyright

Section 31 of the Copyright Act 1968 describes exclusive rights for original works. For literary, dramatic and musical works these include reproduction in a material form, publication, public performance, communication to the public and adaptation, subject to the Act.

The Act's definitions and subsistence provisions still matter. Section 10 defines the relevant categories, including literary works and compilations, while section 32 addresses originality and qualification. Do not assume that every record or fact carries the same protection, or that a whole archive has one owner.

Copyright Act 1968, s 31(1)(a): the exclusive rights include reproducing the work in a material form and communicating it to the public.

2. Check authorship, employment and written assignments

Section 35(2) starts with the author as owner. Section 35(6) addresses specified works made under a contract of service or apprenticeship, while section 35 also contains special rules and allows specified ownership provisions to be excluded or modified by agreement.

Section 196 addresses assignments and licences, including assignments limited by class of act, place or period. An assignment must be in writing signed by or on behalf of the assignor. Contractor, client and other third-party material should not be swept into the company's proposed licence without checking its own chain of title.

Copyright Act 1968, s 196(3): an assignment “does not have effect unless it is in writing signed by or on behalf of the assignor”.

3. Fair dealing is not a blanket commercial-training licence

Section 40 addresses fair dealing for research or study. Its factors include the purpose and character of the dealing, the nature of the work, the possibility of obtaining the work commercially within a reasonable time, the effect on the potential market or value, and the amount and substantiality copied.

Other provisions address other specified purposes and contain their own conditions. Do not substitute a general idea of fairness for the applicable statutory provision, and do not describe ordinary commercial model training as automatically covered by section 40.

Copyright Act 1968, s 40(2) lists matters including commercial availability, market effect and the amount and substantiality copied.

4. Check Privacy Act coverage before applying an exception

The Privacy Act 1988 applies to APP entities, with definitions and exclusions that require their own review. Sections 6C and 6D address organisations and small business operators. Start by establishing whether the entity and the act or practice are covered rather than assuming either full coverage or a small-business exemption.

Section 7B(3) contains an employee-record exemption for an organisation that is or was an employer where the act or practice directly relates both to a current or former employment relationship and to an employee record held by that organisation. Its wording should not be generalised to customer records, contractors or every use of employee information.

Privacy Act 1988, s 7B(3): the employee-record provision requires a direct relationship to both the employment relationship and the employee record.

5. Apply the APPs to collection and the new disclosure purpose

APP 3 limits collection of personal information by organisations to information reasonably necessary for their functions or activities, with additional conditions for sensitive information. It also requires lawful and fair collection and addresses collection from someone other than the individual.

APP 6 generally prevents use or disclosure for a secondary purpose unless consent or a specified exception applies. For non-sensitive information, one exception involves a reasonably expected secondary purpose related to the primary purpose; sensitive information requires a directly related secondary purpose under that limb. Record the original purpose, proposed licensing purpose and the exact basis relied on.

APP 6.1 distinguishes the original “primary purpose” from a proposed “secondary purpose” and then sets conditions for use or disclosure.

6. Overseas recipients and security need express treatment

APP 8.1 generally requires reasonable steps before disclosure to an overseas recipient to ensure that the recipient does not breach the APPs other than APP 1, subject to the exceptions in APP 8. The note also points to potential accountability under section 16C. Identify where the buyer and its processors are located and any onward access.

APP 11 requires reasonable steps to protect held personal information from misuse, interference, loss, unauthorised access, modification or disclosure. APP 11.2 also addresses destruction or de-identification when information is no longer needed and its conditions are met. These are not replaced by a contractual promise that data will be anonymised later.

APP 8.1: before covered overseas disclosure, the entity must take reasonable steps to ensure the overseas recipient does not breach the specified APPs.

7. Match the agreement to the rights and the officeholder's authority

Define the records, rights, permitted uses, exclusivity, territory, term, recipients, sublicensing, safeguards, retention and end-of-licence arrangements. Review confidentiality, customer, employment and platform commitments alongside the Copyright Act and Privacy Act rather than treating a signature as resolving them.

For closed and winding-down companies, an authorised liquidator, administrator, trustee, receiver or other officeholder should lead. Records may be a possible extra asset for creditors, without pressure to proceed. Personal data in insolvency estates needs its own lawful basis; your officeholder and the buyer decide.