Australia Says 'Let's Update Copyright For The Digital Economy;' Legacy Industries Say 'Let's Pretend It's Still 1968'

Copyright

from the because-1968-was-a-hell-of-a-year-for-all-concerned dept

The results are in for Australia’s request for comments on reforming copyright policy — and the submissions are, unfortunately, unsurprising. (The entire “Copyright and The Digital Economy” questionnaire is embedded below.) The legacy industries like things the way they are, (except for file sharing) and are only requesting changes that would lead to more licensing opportunities and greater fees.

As far as orphan works are concerned, nearly every entrenched publisher believes that they should get to control how these works are sold.

Walker Books Australia [RTF]

Our preference would be for the creation of a collective licensing scheme for such works, along the lines of the Canadian system. There the Copyright Board has the right to issue a non-exclusive licence for the use of orphan works after reasonable efforts have been made to find the rights holder. Fees are then distributed among members after a certain number of years. Whatever model is chosen, it should be based on authorisation by a formal collective licensing body rather than taking the form of an exception. Also, importantly, there should be no assumption or requirement that moral rights have been waived.

Basically, publishers would like to have “non-exclusive” licenses granted to publish orphan works, but only after a “reasonable effort” has been made to locate the rights holders. After an arbitrary amount of time, these fees will be redistributed to participating parties.

Non-participating parties would be guilty of copyright infringement if they released these works on their own or secured copies, presumably. Again, the public will not be allowed to benefit from these works, but instead, must go through the usual gatekeepers to acquire copies. Despite these being “non-exclusive” licenses, it appears that only participating publishers will be allowed to profit from these works. No clarification is given in terms of what happens to these works once the arbitrary waiting period is over and the monies redistributed. Public domain? Back to the “orphan works” pile to be re-exploited for another X number of years?

Additional exceptions for private, domestic or non-commercial use are off the table as well. The argument seems to be that even though people are sharing content in a non-commercial context, the sharing takes place on commercial services like Youtube or Facebook. This is viewed as another opportunity for licensing, hopefully paid for by the deep pockets of corporations rather than by individuals. What’s ignored is that when a person shares a song, photo or video with someone else, they’re doing it without any desire for personal financial gain or to harm the creators. But maximalists tend to find something innately wrong with these situations. Here’s Walker’s take on non-commercial sharing.

We are seeing a lot of examples of Books being taken and read/shown on YouTube – they are therefore being shown in a public and not a private forum and so being shared without consent…

Where does one begin and the other end? Someone’s “private” reading on YouTube for instance, although non-commercial, could undermine the legitimate marketing activity of the author or publisher – or certainly deminishes [sic] its impact.

First off, I find it hard to believe that someone would consider watching a video of someone reading an acceptable substitution for purchasing a book. Second, what are you doing about it other than complaining? Have you uploaded your own readings? Maybe one from the author? Have you claimed the video for monetization? Unless you’re making a few moves of your own, it’s a bit disingenuous to complain about someone doing your marketing for you.

Yes, Youtube is a commercial entity but as an aggregate. Individual users are generally not uploading their own readings as part of a business plan. It’s usually because they’re a fan of the book and they’re sharing stuff they like with others. This is a good thing.

The performance rights organizations have also sent in a response, one filled with misrepresentations and and the sort of entitlement that has served it well for so many years. It starts on the wrong foot and gets worse.

APRA|AMCOS [PDF]

APRA|AMCOS are concerned that references to the “constant debate” about whether copyright law acts as an incentive to production of new material are a distraction from what should be the focus of this Inquiry…

Yes. Let’s not talk about how expanded copyright law that fails to meet the needs of the digital age might be stifling production of new material, BECAUSE THAT’S WHAT PROMPTED THIS ENTIRE PROCESS. Let’s just ignore the debate and keep things the way they’ve been since 1968 because nearly a half-century down the road nothing has changed except everything.

Copyright encourages creativity. Exceptions should only be enacted where there is an overriding social benefit that justifies a limitation on the property rights of the copyright owner. Anecdotes about how creators are not motivated by economic considerations have been used to suggest that creators are economically irrational and therefore should not participate in markets for their works. This is wrong. Copyright is a grant of property rights that enables authors to commercialise their products and maintain the integrity of their creative output.

This is a willful misrepresentation of the views of those who question the incentive value of copyright. No one has stated that just because some creators create without financial incentive that no creators should seek to make money, or even enjoy the protections of copyright. What is actually stated is that many artists were successful before the days of expanded copyright protection, and despite it, which would indicate that copyright protection isn’t nearly as crucial as the copyright industries paint it.

APRA|AMCOS on Mashups (Transformative Use)

Australia has a sophisticated licensing regime that permits a large number of new businesses to operate using copyright material. To the extent that not all such businesses survive, there is no evidence that this is related to anything other than the operation of normal competitive market forces.

Except when it’s your business that is threatened and may not survive. Then it’s time for legislators to step in and “save some jobs” or whatever angle gets the playing field “leveled” fastest.

APRA|AMCOS on adopting US-style “fair use” laws and statutory rights

[I]t is clear that copyright owners in Australia cannot act as potently to prevent online infringements as can copyright owners in the US, whether against the infringing customer or the infringing internet service provider.

Infringing service provider? There’s an unlikely term. If you’re thinking of getting your hands on US-style statutory rights, you might want to keep in mind that ISPs are not responsible for the actions of their customers, unlike in Australia. Infringing customer? The hell does that mean? What it sounds like is that even paying customers are shortchanging rights holders somehow, but in reality, it’s just APRA|AMCOS trying to tie the ISP to its infringing subscribers. In other words, APRA/AMCOS wants the power to litigate against both ISPs and individuals, but will cede nothing to fair use or any other US-style policies that benefit the public at large. Or in pirate parlance, “Take all ye can. Give nothing back.”

So far, so much of the same worn-out arguments for greater enforcement, more licensing and less of anything that favor the general public. The biggest backlash seems to be saved for any discussion of moving Australia’s fair dealing laws in the direction of America’s fair use laws.

International Publisher’s Assoc. [PDF]

If the aim is indeed to avoid or abolish barriers to innovation, then the introduction of “fair use” provisions would be a highly unusual path to take, a path that has been adopted by only four countries worldwide, but rejected by many. The introduction of a fair use doctrine would:

• create legal uncertainty and hence an atmosphere hostile to creative innovation and freedom of speech;
• violate Australia’s obligations under international copyright treaties, in particular the “three step test” of the Berne Convention, WCT and TRIPS;
• require the introduction or importation of an entire body of legal precedents, adjudications and case law into Australian jurisdiction, the introduction and interpretation of which would carry with it unpredictable legal risks.

A “fair use” doctrine works (more or less) well in a US context because of its roots in more than 150 years of case law, and significant – 35 years – experience with interpreting its codified version. It is exactly this long history that alleviates (but not silences) concerns regarding legal certainty, freedom of speech and violation of international treaty, but many commentators remain concerned also with regard to the US context.

This is one of the most ridiculous arguments against fair use I’ve ever read. (And I’ve read it twice: the MPAA used the same argument in its submission) Sure, fair use may create “legal uncertainty,” but that’s only because so many rights holders are convinced that there should be no unlicensed use of their creations… ever. It’s this hardline approach that creates “legal uncertainty” — not the fair use itself.

As for fair use being “hostile” to free speech and innovation — well, that’s just completely wrong. Copyright has been abused to stifle criticism multiple times, often as a “Plan B” when it appears that proving defamation or libel might be tricky (or impossible). Fair use increases free speech, not the other way around.

And I’d really like to see the International Publishers Association prove that fair use harms innovation. The MPAA’s own “respect our authority” response to the call for submissions states that it relies on fair use as part of its creative process. (Mere sentences later, though, it warns Australia that fair use isn’t for them, so don’t even think about adopting it.) Greater IP protection is what’s actually harming innovation as it exposes new entries into the market to increased legal action. One needs to look no further than the debacle d/b/a/ the patent system for evidence of stifled innovation.

The final argument dealing with the US fair use system and its “built in” history is a non-starter. While importing case law and precedent would bring “unpredictable risks,” expanding the current “fair dealing” to closer match fair use laws would be a good start. At some point, every country has to create its own precedent, something that’s impossible to do if everyone keeps worrying that a new law won’t appear fully formed with years of precedence behind it. This argument pops up in the MPAA’s paper as well. Apparently, Australia is just supposed to cede to the logical fallacy built into the ourobouros-esque reasoning that “fair use works in the US because of years of precedence but won’t work anywhere else because no precedent has been set.” You can’t set precedence if you’re unwilling to institute fair use and, you know, start setting some precedent of your own.

APRA|AMCOS on Fair Use

The uncertainty engendered by an open fair use exception is likely, as in the US, to give rise to considerable litigation that would defeat the purpose of adopting such an exception. It is likely that fair use would be raised as a defence to many allegations of copyright infringement, adding significantly to costs of legal advice and to the costs of litigation.

Once again, copyright apparently should only work as a deterrent, rather than an inspiration. The power to censor through copyright must remain intact. Because piracy. (Or something.)

It all seems to boil down to “We like what we have right now, but some more would be even better.” The protections granted during the analog era hardly match up with the digital reality, but somehow these copyright-reliant industries believe the future belongs to the past. No concessions are made to current reality. If any changes are made, they want to make damn sure they’re the only beneficiaries.

It’s not all bad news from the normal players, though. A few more reasonable responses made their way into the submission pile. A group of literary agents makes a couple of good points.

Australian Literary Agents Assoc. [RTF]

Currently only moral rights are an absolute rights. More rights must be made absolute, for example statutory rights. Some organizations demand these rights be taken away from the creator. Many organizations are bullish contractually with creators in regard to statutory rights. Accordingly a lot of money goes to international corporations instead of Australian creators.

Most people want to do the right thing and compensate the creators of copyright for the use of their work in other forms – give people the means to do this. Make it easy for them to pay the copyright owners, no matter how small the payment is.

And a submission by Richard A. Marschall of Marschall Acoustic Instruments [RTF] completely flips the script, going full on towards the sort of copyright minimalism we proudly espouse here at the ‘dirt.

I don’t think the digital environment really has changed anything. What has changed over time is that copyright law here has been following that of the USA which serves some big media company interests but acts against artists and smaller media companies…

If the taxpayer paid for the creation of the content then it should be free to use by all. The system of the public pays and pays and pays … does much to diminish respect for the law…

Brief quotes for purposes of comment, analysis, or parody should be allowed. The USA used to have something called “fair use doctrine”, it is time to revive it. Also, the length of copyright, especially for music and recordings, and perhaps even films, needs to be shortened to something like 10 or 15 years. History should not be copyrighted…

Libraries and universities should be able to copy everything that they bought a copy of. They should not have to keep on paying and paying and paying when the media wears out…

His whole response text is worth reading, but sadly, one of the few to go against the prevailing winds of maximalism. Australia’s attempt to update its copyright laws faces an uphill battle against those who like it the way it is, or even better, the way it was. Nearly fifty years down the road from the last update of its copyright laws and a majority of the respondents prefer stasis to moving ahead.
 

Filed Under: australia, copyright reform, orphan works, publishers