Australian Gov't Commission: Copyright Is Copywrong; Hurting The Public And Needs To Be Fixed

from the wow dept

Three years ago, down in Australia, the Australian Law Reform Commission started examining various copyright reform proposals, and eventually made a rather mild suggestion: bring fair use to Australia. Frankly, we felt that the Commission could have gone much further, but it basically said to copy the American approach to fair use. Not surprisingly, Hollywood flipped out, claiming that it would “lead to an increase in piracy.” And, soon after that, the new government, led by Attorney General George Brandis flat out ignored the report and pushed for expanding copyright against the public interest, and very much towards exactly what Hollywood wanted. This wasn’t all that surprising, given that it was revealed that Hollywood representatives spent a lot of time with Brandis, while he deliberately avoided meeting with representatives of the public.

But, in a bit of a surprise, last week, a different Australian government commission, the Productivity Commission, released one of the most amazing reports on copyright that you’ll see out of a government body. The Productivity Commission is a government agency designed to give independent advice to the government — and had been tasked with exploring how well Australia’s intellectual property laws were working.

In short, the answer provided by the commission is: not well.

Just take a look at the infographic the Commission pushed out along with the report, which is titled “Copy(not)right.”

The whole section on the problems of copyright as currently in place in Australia is worth reading. They don’t pull many punches:

Australia?s copyright arrangements are weighed too heavily in favour of copyright owners, to the detriment of the long-term interests of both consumers and intermediate users. Unlike other IP rights, copyright makes no attempt to target those works where ?free riding? by users would undermine the incentives to create. Instead, copyright is overly broad; provides the same levels of protection to commercial and non-commercial works; and protects works with very low levels of creative input, works that are no longer being supplied to the market, and works where ownership can no longer be identified.

Like the report from three years ago, this report strongly supports fair use (citing that report in part), and their proposal in that area is really strong too. For years now, here at Techdirt, we’ve argued against calling fair use a “limitation and exception” to copyright, because that’s misleading. Fair use is about the public’s rights. And it appears that the Commission agrees, titling its section on fair use: “A new system of user rights.”

In that section, the Commission notes that fair use is important in making sure that copyright law only is used to “target those works where ‘free riding’ by users would undermine the economic incentives to create and disseminate works.” This should make intuitive sense to basically everyone. Copyright is much more defensible if it’s only used in cases where infringement is undermining the incentives to create. But where that’s not happening, then claiming infringement seems inappropriate.

The report then supports the basic four-factor test as used in the US. It also points out that the main complaint against this approach by legacy copyright industry players — that because there’s no case law, it would lead to a big litigation mess — was unfounded and suggests a workaround to make the transition easier:

In the Commission?s view, legal uncertainty is not a compelling reason to eschew a fair use exception in Australia, nor is legal certainty desirable in and of itself. Courts interpret the application of legislative principles to new cases all the time, updating case law when the circumstances warrant doing so.

To reduce uncertainty, the Commission is recommending Australia?s fair use exception contain a non-exhaustive list of illustrative uses, which provides strong guidance to rights holders and users. Existing Australian and foreign case law, particularly from the United States where fair use has operated for some time, will provide further guidance on what constitutes fair use.

Later in the more detailed part of the report, the Commission is even more direct in refuting (in great detail) each and every objection by the legacy copyright industries. In fact, they have a whole callout box that picks apart the ridiculous claims by various legacy copyright players on the “costs” of fair use:

It also notes that the fair use recommendation from three years ago should be the starting point for reform, representing the “minimum level of change” and suggesting Australia go much further, specifically in exempting orphan works and “out-of-commerce” works.

Yes, you read that right, the Commission is suggesting a “use it or lose it” feature for copyright:

The lack of any requirement for rights holders to actively supply the Australian market reduces the efficiency of Australia?s copyright regime. Demand for works that have been created, but are not being supplied, reduces consumer welfare and the profits of intermediaries and original rights holders. Where a rights holder has made a choice not to supply their works to the market (or refuses to supply a market), granting consumers access to that work, such as through a fair use exception, improves consumer wellbeing without reducing incentives to create copyright works. By definition, if a work is not being supplied to the market, concerns about copying and ?free riding? are moot.

While this will undoubtedly be shocking to many in the copyright space — the report points out that such features are common in other areas of intellectual property law.

From there, the report points out how ridiculous geoblocking is, and says that getting around those blocks should not be seen as infringement:

The use of geoblocking technology is pervasive, and frequently results in Australian consumers being offered a lower level of digital service (such as a more limited music or TV streaming catalogue) at a higher price than in overseas markets. Studies show Australian consumers systematically pay higher prices for professional software, music, games and e-books than consumers in comparable overseas markets. While some digital savvy consumers are able to avoid these costs (such as through the use of proxy servers and virtual private networks), many are relegated to paying inflated prices for lower standard services.

The Australian Government should make clear that it is not an infringement of Australia?s copyright system for consumers to circumvent geoblocking technology and should seek to avoid international obligations that would preclude such practices.

Also, not surprisingly, the report finds that copyright terms are ridiculously long and that harms the public massively:

The evidence (and indeed logic) suggests that the duration of copyright protection is far more than is needed. Few, if any, creators are motivated by the promise of financial returns long after death, particularly when the commercial life of most works is less than 5 years.

Overly long copyright terms impose costs on the community. Empirical work focussing on Australia?s extension of copyright protection from life plus 50 years to life plus 70 years (a requirement introduced as part of the Australia?United States Free Trade Agreement) estimated that an additional 20 years protection would result in net transfers from Australian consumers to foreign rights holders of around $88 million per year. But these are likely to be a fraction of the full costs of excessive copyright protection. The retrospective application of term extension exacerbates the cost to the community, providing windfall gains to copyright holders with no corresponding benefit.

The report even suggests that a copyright term of maybe 25 years seems a lot more appropriate, based on actual empirical studies (what a concept: not basic copyright policy entirely on faith).

The report also states what many of us have argued for years, but which seems like something that rarely comes up in “respectable” conversations around copyright: if the copyright is being used outside the “incentive to create,” then it makes no sense:

Unlike other IP rights, copyright makes no attempt to target those works where ?free riding? by users would undermine the incentives to create. Instead, copyright is expansive and ?all encompassing?, providing the same levels of protection to commercial and non-commercial works, to works with essentially no degree of creativity, to works that are no longer being supplied to the market, and to works where ownership can no longer be identified. This leads to copyright covering works that require no incentive for creation, and works that have exhausted their commercial life and are no longer available. Beneficial uses of such material are unrealised. Accordingly, the current Copyright Act is weighted too heavily in favour of copyright owners, to the detriment of the long-term interests of users.

Finally, the report notes that international trade agreements are doing a terrible job constraining Australia and blocking its ability to fix the many problems of copyright and to implement the sensible recommendations in the document. This is quite telling, since Australia was actually one of the voices in the TPP negotiations pushing for expanded copyright. This report is basically slapping those negotiators and pointing out that what they’re doing runs directly counter to the public interest. After pointing out the state of these agreements, the report notes:

a consequence of embodying so much of our IP provisions in international agreements is that Australia is significantly constrained in reforming its IP arrangements

The report also notes that greater enforcement against individuals for file sharing or intermediaries for providing tools has “only had a modest impact,” and that the real way to decrease piracy is not to ratchet up the law, but to make more legal content available:

Changes to the law to encourage Internet service providers to cooperate with rights holders, as well as litigation, have only had a modest impact in reducing infringement. Further legislative change is unlikely to improve compliance with the law.

Instead, evidence suggests infringement declines with better content availability and most consumers prefer paid, legal consumption. As such, an effective approach to reducing infringement is the timely release of content to Australian consumers. This requires action by rights holders and their intermediaries.

Honestly, this is the most thorough and amazing document on copyright I’ve ever seen come out of a government body (we’ll address its coverage of patents in another post…). It’s level headed and reasonable and actually hits on most of the key “big issues.” I’m guessing that it’s so right on and so detailed… that it will be (1) attacked viciously by legacy players and (2) ignored by lawmakers when it comes time to actually reform the system. Oh, and while the report is technically under copyright (Australia has crown copyright, which allows government works to be under copyright), the authors wisely have slapped a CC-BY license on it, meaning that we can share it here as well.

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Comments on “Australian Gov't Commission: Copyright Is Copywrong; Hurting The Public And Needs To Be Fixed”

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The Australian Government says:


Well, with a report like this I suppose there’s only one thing to do… pretend it doesn’t exist and make sure that the next group assigned to ‘study copyright’ gets it right and comes to the proper conclusion.

Maybe if we had someone visit beforehand and reminded them that the funding the government grants them can just as easily be reassigned to agencies that are doing what the government wants. Bringing along a few representatives from the movie and recording industry as ‘guests’ when the reminder is delivered should get the point across I imagine…

David says:

Re: Coming up...

Penitents of all flavors, please. And it certainly beats colonization by Puritans, something painfully obvious when the Lewinsky affair was the hottest thing in the U.S. and nobody down under could figure out what exactly the problem was supposed to be. He got more tail than he had signed off for? So? Was he supposed to share?

Anonymous Cow says:

The current Australian government is so incompetent, belligerent and corrupt, and have made so many enemies, that we are seeing many different groups going out of their way to attack their positions.

The Business Council of Australia, traditional allies of conservative governments, issued a press release a few days ago supporting the climate policy of the opposition Labor party.

I know this report is not just about the government, but I think that the level of their toxicity has inspired a lot of people to go farther and harder than they otherwise would have. They just have that effect on people.

Federal election on July 02 2016.

Derek Kerton (profile) says:

“we’ve argued against calling fair use a “limitation and exception” to copyright, because that’s misleading.”

Yeah! It is copyright ITSELF that is a “limitation and exception” to our freedom to repeat things we’ve seen or heard – a right which humans had for some 400,000 years as homo sapiens. A legally enforced monopoly is, by definition, a limitation and exception.

I am not entirely against this limitation and exception, but only where it incentivizes more useful knowledge and art.

David says:

Never fear.

Honestly, this is the most thorough and amazing document on copyright I’ve ever seen come out of a government body (we’ll address its coverage of patents in another post…).

Ah come on. They will pull a Khanna on the whole commission and be done. If you don’t remember, Khanna was fired from his job after the Republican Study Committee had already endorsed his copyright reform proposal. And then Hollywood came by with a rack and thumb screws, and a lot of reversal ensued.

Whatever (profile) says:

It all seems wonderful, until you realize that this interim report was lead by Karen Chester, same commission member who says VPN users who get Netflix from the US aren’t breaking copyright, and wrote a draft report against geo blocking.

I thought it stank too much of a single anti-copyright person at work, and I was correct.

Celebrate the “victory” of having one of the choir regurgitate your talking points. ๐Ÿ™‚

Whatever (profile) says:

Re: Re: Re:

Nope, just in the same manner you don’t swallow slanted pro-copyright stuff, I don’t swallow the slanted anti-copryight stuff. The authors of this interim report are as one sided as possible, it’s unlikely they considered anything other than their own pre-formed opinions in making the report. It’s pretty sad actually.

Anonymous Coward says:

Re: Re: Re: Re:

Because if people disagree with not being allowed to view content you’ve already paid for, and extending copyright lengths beyond the author’s original lifespan – that’s clearly because they’re all biased, right?

Being critical of copyright and asking for it to be toned down does not equal anti-copyright – but you can’t seem to think past your nose when it comes to any challenges to authority. Going by all your logged out fanboying, it’s not much surprise.

Anonymous Coward says:

Re: Re: Re: Re:

You’re the one that’s as one sided as it gets. You’re the same person that tries to falsely equate copy protection laws with real property laws. That’s about as one sided as it gets.

Copy protection laws should only be about the public. Not about the artist (which you don’t care about anyways) and not about the copy protection holders. and not about fulfilling any non-existing property rights.

Anonymous Coward says:

Re: Re: Re: Re:

Prove to us you’re not the pro-corporate extreme one by answering the following questions

A: Do you believe that artists that receive false takedown requests should receive at least the same protections as IP holders that get protected works infringed upon. Should they be presumed innocent until proven guilty and have their own ‘property’ remain online until it is first proven that it doesn’t really ‘belong’ to them. Should the person filing a takedown be subject to the same penalties and risks, under penalty of perjury and similar fines, if the takedown turns out to be false (even if by accident because that excuse doesn’t work for artists that upload infringing content).

B: Should copy protection lengths be substantially reduced to something more reasonable?

C: Should discontinued works enter the public domain?

D: Should copy protection be about the public, the artist, or the IP holder (hint, it should only be about the public).

E: Should copy protection be regarded similar to real property?

F: Do you believe that secretive meetings/negotiations with industry interests present over IP laws are acceptable?

G: What criticisms do you have against the current IP laws that don’t involve extending and expanding IP laws or trying to increase their enforcement? Or do you think that copy protection laws need to go the other direction?

H: Do you believe in the DMCA safe harbors?

My suspicion is that you either won’t answer these questions because you know they will reveal your extreme position or that your answers themselves will reveal your extreme position.

Anonymous Coward says:

Re: Re: Re:2 Re:

I: Do you believe that people should be forced to pay for the same content more than once (ie: geoblocking). Be specific about your position.

Because so far, when I look at you, I see a pro-IP holder, anti-public, anti-artist, anti-democracy extremist. You don’t believe that IP laws should be democratically decided if the public disagrees with you. You believe that IP laws should align with your opinion 100 percent regardless of what the people want and if they don’t then that’s not acceptable.

You are intolerant of anyone that disagrees with you. You believe that anyone that disagrees with you, even slightly, is an extremist. According to you anyone that dare says anything that you disagree with, even slightly, is an abolitionist extremist. and that’s an extreme position. Your very posts on this thread alone show what kind of extremist you are. Yet we’re the extremists here.

(this is not to say that IP abolitionism is an extremist position, it’s not, but it is an extremist position to assume that just because someone criticizes some aspects of IP laws they are abolitionists).

Give me at least one non-extremist position you hold regarding IP laws that doesn’t involve trying to extend or expand them or increase their enforcement.

Mike Masnick (profile) says:

Re: Re: Re: Re:

The authors of this interim report are as one sided as possible, it’s unlikely they considered anything other than their own pre-formed opinions in making the report. It’s pretty sad actually.

Which reveals, as per usual, that you didn’t read the report. They actually quite clearly lay out a variety of arguments and then actually show which ones are supported by the facts and which are not.

But, you know, good for you to simply make stuff up that is easily debunked.

trollificus (profile) says:

Re: Re:

Haaahah!! Yeah, copyright apologists frequently resort to that last refuge of a scoundrel: The Rules. Rules to be obeyed, because, “whatever slippery piratey arguments pirates make, they are the law.”

It makes the shills really uncomfortable to have to face the reality that the law is not a permanent monolith. Their voices get really high when someone suggests that copyright, especially as now constituted/distorted, is clearly NOT a law of nature.

On the fine day when changes to copyright that benefit both artists and consumers are implemented (now, how does anybody lose in that situation?), I’m sure the people employed as “copyright advocates” will just graciously accept the “Whatever you think, that’s the law.” argument. Right??

G Thompson (profile) says:

Re: Re:

Actually under Australian law (you know… where the report actually is from) individuals who bypass geoblocking after they have PAID for works are NOT acting illegally nor unlawfully. In fact they are not even breaching terms of Service, nor contracts under Australian Consumer Law (or contract law here either).

What part of the above stinks? Oh right.. the part where you cannot insert your own American anti-consumer laws into ours.

As for the productivity commission itself, it is the actual independent arm of the Federal Government here that looks and studies whether something is of benefit financially to Australia’s interests. It seems in this case they have decided that the current IP structures are severely lacking in both consumer protections and in stopping financial benefits from occurring to Australia.

Whether you agree with that, not being from Australia, is your problem. Oh and Karen who lead this DRAFT (not interim) report is only one of the man many MANY people who contributed to this report. But hey at least she doesn’t denigrate people like you do when they don’t agree with your blinkered mind-set.

Anonymous Coward says:

Re: Re: Re:

When police union chiefs think warrants and restraint and accountability are shit, Whatever hails it as intellectual ambrosia.

When people suggest that police shooting unarmed citizens willy nilly is a bad idea, Whatever loses his cool and calls everyone criminals…

Anonymous Coward says:

Re: Re:

Your post all seems wonderful until you realize that it was lead by Whatever, same person that thinks that Geo blocking is OK and tries to equate copy protection laws to real property laws. You even wrote posts defending the anti-artist, anti-consumer, and pro-corporate nature of copy protection laws. For example you think it’s OK that copy protection laws allow people to remove content based on a mere accusation and later to require the accused to prove that it belongs to them, under penalty of perjury, before getting it restored and you never complain that those who file false takedowns hardly ever see much punishment if any at all. This is unlike real property laws and it’s very anti-artist.

I thought your post stank too much of a single pro-corporate IP person at work that doesn’t care at all about the public or the artist and only cares about select corporate interests and wants to give them special privileges they don’t deserve and shouldn’t be entitled to and I was correct.

Copyright P (user link) says:

I've lost track of the RE:

I am very much IN FAVOUR of the proposed changes.

The confusion about whether it’s a breach of copyright law or not is due to Section 132APC

Which suggests (unusually clearly) that circumventing IS a breach… until you read the interpretation (Section 10) of ‘access technological protection measures’

which includes this bit:
“but does not include such a device, product, technology or component to the extent that it:

(c) if the work or other subject-matter is a cinematograph film or computer program (including a computer game)–controls geographic market segmentation by preventing the playback in Australia of a non-infringing copy of the work or other subject-matter acquired outside Australia;”

which is why people are arguing that it’s NOT a breach.

I’m more concerned that the infographic suggests that we can’t currently record things from TV or Radio to use in class!! Educational Institutions have been able to do this since VHS tapes were the only way to record anything – it falls under Part VA, Section 135E

Really, it should have reflected that we can’t include YouTube clips or sections from DVDs in recorded lectures unless the use falls under Fair Dealing for Criticism or Review or Section 200AB (which most people are afraid of relying on too frequently because it’s a bit vague and no one wants to be a test case).

I’m in favour of the changes because for the most part MOST of the population operates blindly like we have Fair Use anyway! Because the majority of the digital world and culture we’re exposed to comes from the US where Fair Use exists and monkey-see, monkey-do, everyone on the net acts like we have Fair Use anyway. AND I hear PLENTY of artists complain that they’d like to use a portion of something but can’t because the permissions process is such a painful, time consuming and expensive protest. Educational Institutions are STILL going to pay fees to access the top journals, they will STILL pay fees for the right to communicate content, the publishing industry will not collapse, authors will still get whatever small amount of royalty that is due in the chance circumstance that someone is copying their content during a survey period. Films will still be made, TV shows will still be made, Art will still be made and I bet that we’re not going to see any Hollywood stars that become bankrupt and you know what, how awful would it really be if Hollywood stars didn’t get paid multitudes of millions to be in a film? Maybe it would be good? Maybe they would stop working and fresh talent would start coming out into the public eye because that’s all the studios can afford. Maybe that would be a nice change.

singo (profile) says:

I like it but it won't go anywhere

I like the findings in this report a lot but I note that it is a draft version so is highly likely to be neutered before a final version is released (if it is at all – we’re entering a national election period here any day).

In addition, the government is free to adopt or disregard any recommendations made by the PC as they see fit. It’s at least encouraging to see that there are some people working there that are willing to take an evidence based approach rather than accepting the non-arguments and ad hom attacks by the Big Content shills

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