Senate Legal and Constitutional Affairs Legislation Committee, , 2:50:29 to 3:40:52
Discussion focuses on the government's consultation process regarding copyright law and artificial intelligence, specifically examining the proposed 'opt-out' model for rights holders.
Topics: Copyright, Artificial intelligence, Law reform
Speakers: Katherine Jones, Tara Inverarity, Senator David Pocock, Chris Collett, Senator Michaelia Cash, Jenna Priestly, Senator Jana Stewart
>> Thank you, Chair. Um thanks for your time this morning. I've got some questions about uh the department's consultation on copyright law.
>> Thank you, Senator. Our colleagues will
thank you. Um, I'm interested in the the status of consultations with AI companies, copyright holders, publishers, and the creative industries on potential changes to our copyright >> going. And why have these consultations been behind closed doors rather than an open public consultation on potential
changes? Um, Senator, I'm sure um, my colleagues can go into a lot of detail about the copyright and AI um, group um, that has been in place for several years and has been the key mechanism for uh, engagement with a very broad range of stakeholders uh, from um, uh, all parts of the creative sector uh, or stakeholders with an interest with in copyright and AI including in tech companies. So I'll um let um Miss Inverarity talk to that.
>> Thank you. I don't have a lot to add to what the secretary has said. Um we've been supporting the government with consultations over recent months as you're aware but it builds on many years of engagement with the copyright and AI reference group which although not a public forum has a very extensive membership. We would also note that the office of AI uh in the department of prime minister and cabinet recently did undertake public consultation although we accept copyright was not the focus of those consultations.
>> And so whose decision was it to to hold these discussions in private rather than having a sort of public discussion around potential changes to copyright?
>> So there is I'm looking slightly puzzled Senator Perhaps have been clear. I wouldn't have cut them in in private in that their consultations through established mechanisms. The the copyright um system or sector for one of a better term has a whole raft of players as you'd be aware and we've had numerous I think I lost track of the number of consultations that Miss Priestly would have led um involving um representative groups from artists all the way through to some of the biggest media companies in the country. So I wouldn't have described them as closed
discussions. Okay, that's the very much the sense I've got from um uh talking to people who've been >> sorry that wasn't my intention to
describe that one.
>> Sure. Um and so where did the opt- out model come from? Who proposed that to
I don't I don't know that there's a single answer to that Senator in that the these are concepts that have been explored and discussed and debated um for a number of years and as so I'm conscious of your your very real interest in this space there are very different views across uh our society and globally I I don't know that we could pinpoint exactly who first raised that aspect Mr. Priestly
>> uh Jenna Priestly assistant secretary copyright and AI task force um yeah Mr. Collett is correct. I don't think we could pinpoint who raised it um as a and and I don't think any one sort of stakeholder raised opt out as a specific model. I would say that as part of policy development and providing advice to government, we do look at um models internationally and um the uh European Union has got an opt- out uh model as part of its um uh copyright and AI laws and so there is sort of precedent that we've been looking at internationally.
>> So the opt out didn't come from a stakeholder, it came from the department looking at the EU. >> It's got to it's got to have come from
somewhere. Well, Senator, I don't think we have a particular moment in time where we could record that the first time somebody raised it with us.
>> Well, maybe I'll notice if you're happy to go back and and look who which of the stakeholders has proposed opt out. Um that would be very helpful. I understand you may have to go and look at um what was said in in what um
>> Senator I just want to careful is this really important issue to to you and to the committee and to all of us. I don't know that we have a single answer to that. Our records won't show that on the 24th of a particular month an individual raised it. But this is a well understood concept within sort of global copyright discussion. So I don't think we'll be able to source a a moment in time where it started.
>> And I also would just like to clarify the work that we've been doing is to understand people stakeholders positions on the issue, their drivers, what they're interested in, not to have them pitch to us fully formed models. we've been engaging to understand their um their context and their operating environment to take that back into the policy development process and um through that engagement and policy development process we have as Miss Priestly has already mentioned >> evolved a model which uh would have opt out elements to it. So, so there there will not be one moment in time where before it we were not aware of the possibility of an opt- out um model, then a stakeholder pitched it to us and it came onto the table. It's just been much more iterative than that.
>> Okay. I guess I'm interested in why you're consulting on an opt- out model when it seems to me the near universal view from creatives is they don't want an opt- out model. And I haven't heard anyone through the various committees that are ongoing say that it's a workable solution technically. So how does the department actually land on something that creatives don't want and seems unworkable in terms of the technicalities of opting out across the internet?
>> We're balancing that against positions put by tech the technology sector that opt in cannot work.
>> So how can opt in not work but opt out
works? This is the policy development process that we're on to hear all of that feedback about what is and isn't technically feasible.
>> But you've put forward opt out.
>> We have consulted on a model that involves an opt out approach.
>> So how how is that more feasible than opt-in? You must have some sort of
>> I think Senator what we're trying to suggest is there are so many different perspectives. Uh we are open to and engaging with stakeholders across the spectrum of views here to provide the most comprehensive advice we can to government. ultimately going to you know the prime minister's public statements around um how to best position the country to deal with frontier AI in a manner that suits Australia.
>> Sure. And I I guess so on that you've that you know the things I've seen you're putting forward an opt- out model based on consultations.
>> We're not putting forward we have tested a whole range of different issues. We are consolidating views and providing ongoing and regular advice to to government and of course our department is one of a number um contributing to this whole of government exercise coordinated through the office of AI in the department of prime minister and and cabinet and of course that transcends then senator to the ministerial level. The attorney has her responsibilities as part of cabinet with a range of her colleagues uh to progress what is a very difficult uh novel and contemporary issue.
>> Is is the model under consideration not an opt- out model though? Is the model
under consider? There are lots of things that are under consideration and government is not has yet to take
>> Okay. Well, given that opt out is clearly one of the models. Um why is that more feasible than opt- in? You said you said the tech companies said opt in won't work. All the experts seem to say opt out is totally unworkable. You're saying to every single person who has any photos or anything that they have to attach some sort of file to it and then you know just uh trust that open AI and anthropic aren't going to hoover it up. Um how is that more feasible? There must have been a decision within the department that you said okay the tech companies say opt in it's not going to work and so we're going to go opt out.
>> But senator we we've tested opt in with a whole range of stakeholders. We've tested opt out with a whole range of stakeholders. We've tested a whole range of different aspects. There are a myriad of choices available.
>> So I'm asking then how do you land on
>> The department hasn't landed on anything.
>> We haven't landed on anything. We have consulted on an opt- out model.
>> The department's not the decision maker here. Our role is to provide advice as part of one of a number of departments uh for government to inform decision-m.
>> Sure. Maybe I'm asking the question in a Why are you consulting on opt out rather than opt- in or another model? Like you must have some sort of uh assurance or idea that opt out works but given creatives don't want it and all the technical experts say that it's basically unworkable. Like how did how did the department land at a point where you you're actually consulting on something that from everything I've heard is not wanted and doesn't work.
>> Uh it's Mr. Collett and Ms. Envarity have said, I think we're consulting on a range of different options and different design elements um to achieve a range of different policy objectives. So, one of those policy objectives being um to facilitate AI training in Australia. Uh the others being around protection and control um and compensation for rights holders uh and other creatives. And I think the the reason that um opt out is one of the options that we have been consulting on uh goes to that first sort of policy objective around attracting AI training to Australia and responding to what we've heard from some stakeholders particularly in the tech sector that an opt-in model wouldn't be feasible to achieve that policy objective.
>> And maybe just finally before we go to lunch just so I understand the policy development. It was my understanding that AGD is in charge of copyright. Um but do you get told by government that actually we want options to facilitate investment um rather than okay well what is the best way forward just on copyright? Are you sort of is is that
Senator, if um if I can lead in here, uh obviously something about um grappling with the potential of investment uh uh in AI in Australia um engages the equities of multiple departments and portfolios. Um uh it's not a zero- sum game that we only focus around copyright. We're responsible for the administration of the copyright act. uh and we have the direct relationship with copyright stakeholders. Uh but um it's it's part of a broader whole of government uh consideration of um national security issues uh investment and economic issues uh energy issues um uh land acquisition and water issues as well as copyright and other things. So we're we're part of a whole government effort. Certainly our role is to ensure that um cop the copyright uh interests are understood uh and that we test with copyright stakeholders uh uh possible options um and but we do that uh connected with a a broader government effort.
>> Thank you. Thanks.
>> Thank you Senator PCO. Uh senators have indicated to me there are further questions remaining for the justice and communities group. So we will return at 12:30 uh the justice and communities group. We will now suspend for lunch. All right, we will now resume after lunch with the Justice and Communities Group and I'll hand the call to Senator Cash.
>> Uh, thank you. If I could just go back to a line of questioning from Senator PCO in relation to copyright. I just want to get um a a clear understanding of what the evidence was. Um has the department put to the government a preferred or a recommended model to the
>> Senator, there's um ongoing policy work uh that we're undertaking and providing advice to government. Uh there has been no um settled position yet on a final model.
>> Ah, sorry. Okay. So, I just wanted to clear that up. All right. So, there no recommended model has been put to government. Uh, is there a time frame that you are working to
>> um and and sorry, Senator, I should just be um uh clear in terms of model uh as I described to Senator PCO um uh at the end of the last session um that there are uh connected lines of effort uh on this issue. um uh copyright is certainly one element of it, but there's a whole range of others. So I think um the the more accurate characterization would be there's ongoing policy work that that goes across all the different areas that I talked about uh in terms of national security implications um engagement with the states and the territories um energy, water, land use as well as copyright. So they're all factors that are being worked through. Um there is no sort of one big model um that we have advised on. Um but we have been doing ongoing policy work around options uh in the copyright space.
>> And on timing there's no particular date that we're working to other than that we're just working urgently to support government um with its consideration of
the issue. Can I just confirm this department established the copyright and artificial intelligence reference group in 2023. Um is that consultation process still
It it was a it's a it's an ongoing um consultation mechanism um and has been incredibly useful uh u where we've been able to tease out uh a range of perspectives because um Senator as you know uh there is no single coherent copyright community with an agreed um set of uh views about copyright. Do you
mean in relation to I mean I I would dispute that and say all of the discussions that I've had um across the board with all rights holders. So put put aside the AI companies but the rights holders themselves who are directly affected obviously by copyright um they seem very firm that there should be no changes to copyright law in
Australia. I I I think it's a bit more nuanced than that and and different stakeholders have uh engaged uh on this issue uh and bring different perspectives. Um uh so the the the reference group has proven to be a great mechanism where people can quite transparently talk through these issues. Um we have also had separate engagements uh associated with the discussion or the issues paper. um uh but um uh I think um that mechanism remains available to be used to continue to engage with stakeholders.
>> When was its la sort of last meeting and what's its um schedule of meetings going
>> Uh I think we we'll have to check. We think the last time the copyright and AI Oh, hang on. Miss Priestly does have to
date. So our last uh meeting of the copyright and AI reference group was on the 28th of October 2025.
>> I think it's just worth clarifying the copyright and AI reference group has not been the uh group that we've used to consult on this proposal but me members of the copyright and AI reference group have absolutely been consulted just not through that entity itself.
>> Understood. Yeah. Okay. That that's fine. Um I is there a need to change copyright laws in Australia in particular given um as I said it is really the majority of rights holders uh do not want to see a change to the law and would argue that the current law is adequate in terms of the protections it
Senator is there are a whole range of views across society and globally on this and government has to grapple with what is the best way forward for Australia in dealing with frontier AI. Um and there are a multitude of choices wrapped up in that. Um and as you say very strongly held uh views by different players in that space.
>> Yes, exactly. And in particular um the AI companies. Um so changing the copyright laws is still part of the mix of a consultation that is going on.
>> Yes. AI companies themselves have said that uh they cannot reduce their legal risk to a sufficient level to enable them to invest in AI training here under current uh legal settings established by
the copyright act. And what what are those arguments put by the big AI
companies? Um well I can uh use their words if you like based on the evidence that they gave um to the uh a recent um uh hearing of the joint select committee on AI >> where anthropics said and I'm quoting here there are certain things that are just technically impossible to do you can't license the entire internet billions and billions of information exists there which is available to be viewed and studied and that's essentially what training is uh Microsoft said, and I'm quoting, "We see your copyright laws as providing a high level of uncertainty about the ability to engage in the training processes that are necessary to train a model." And finally, Google stated, and again, here I'm quoting, "It's the sense of an obligation to go out and get prior authorization and licensing agreements for all the content we would that we would want to train on. If that is really the obligation, just a conservative estimate on the back of a napkin would show that to train a medium-sized large language model would take us around 200 years to be able to get the necessary authorization.
>> So just in relation to then say the overseas comparisons, what have the UK
>> Ask Miss Priestly to talk through in that there are differences across every uh jurisdiction. uh but very happy to answer your question and I might just add just for your visibility senator you may be aware but the department of course has appeared before the joint select
the context of senate estimates though
>> yeah fantastic M
>> so the UK undertook consultation um last year I believe on um options to reform its copyright law >> that um then fed into sort of further polic as I understand it further policy policy development work um being undertaken by the uh UK government and as far as I'm aware they haven't reached a position.
>> So have the UK changed their copyright
>> Not that I'm aware of in relation to this issue.
>> Right. Okay.
>> At this stage of course there are some differences in the UK uh copyright act to the Australian copyright act.
>> Yes. But pretty much the UK at this point in time is firmly backing in their rights holders. That is my understanding.
>> Well, I think it's it's correct to say there's been no significant change >> to their copyright.
>> Correct. >> Yes. just going back to the court and just in terms of the the correspondence, written advice or submissions from either court concerning the establishment of the new court, have you received any correspondence um raising concerns about the >> bearing in mind I'll be asking this of the courts obviously as well and they'll be tableabling it.
>> We've said before um Senator we work very closely with the courts um to develop uh advice to to government. There are a whole range of complexities around the the potential establishment of a court and a whole range of decisions that government has not taken. As missing Verity said earlier um the implications in how the federal justice system works is of course of great interest to the chief justices uh to their principal registars and to the the courts uh as it would be to the Fairwork Commission and the Department of Employment and Workplace Relations.
>> Yeah. So again since the announcement on the 23rd of July 2026 has the department received any correspondence submissions etc from either court raising concerns?
I think um as I mentioned earlier, we did receive a letter from Chief Justice Mortimer. My characterization of it um and again I don't have it in front of me is not that it raised concerns but that it did point out aspects where depending on the policy choices that government might make certain things would be more challenging and certain things would be less challenging. My reading of it was that that was to inform the policy development process so that uh issues that might be particularly challenging could be avoided or different um options chosen rather than expressing a concern in and of itself with the establishment
copyright? Can I just ask one follow-up question then on copyright before we share the call? Um what's the productivity commission's view on changes to the copyright act here in
Uh >> I know the productivity commission did recently appear before the joint select committee on AI. I myself wasn't able to to watch that. Um
>> well I'm assuming you're all over it though because you are the department that deals with copyright. So the views of the productivity commission I'm assuming would be taken into account.
>> I'm sure they will be and that our team will be looking at it. I myself have not uh watched that evidence or read the transcript. Um so
>> Miss Priestly, can you
>> I did watch the evidence, but sorry, Senator, I just can't recall off the top of my head exactly what their position was, so I think we'd have to take that on notice.
>> Right. Has anyone spoken to the Productivity Commission about changes to the Copyright Act in this department? We
engaged with them on several occasions towards the end of last year I believe. Um but uh I haven't met with them in the
>> Okay, I will share the call. Thank you.