MPAA To Aussies: Obey US Created Copyright Rules! But Don't Even Think About Importing Fair Use

Copyright

from the we-write-your-laws dept

As reported here back in August, the Australian Law Reform Commission (ALRC) is taking a long, hard look at current copyright laws and has been gathering submissions from a variety of businesses and rights holders in response to 55 copyright-related questions. The submissions have been posted at the ALRC website for public view.

Unsurprisingly, many representatives of legacy industries have responded with suggestions that the status quo be protected and any major or minor modifications of current law in favor of “fair dealing” or “exceptions” be discarded immediately. If any changes have to be made, these industries would prefer that they skew entirely in their direction. For some reason, the MPAA has chimed in, despite the fact that this entity's views on copyright are widely known, thanks to the fact that it never, ever shuts up about it. 

The MPAA's response (RTF) opens up with stating it support of the Australian Film Bodies' views, before gently (but firmly) reminding the ALRC that Australia signed some very skewed and restrictive trade agreements with the US, lest there be any questions about which country's rules it should be following.

While both the Terms of Reference and the “Guiding Principles” make reference to Australia’s copyright law obligations with respect to copyright, it is important to recognize that these are not simply random or uncoordinated requirements with which Australia has agreed to comply. Australia is an active participant in an evolving international dialogue that articulates comprehensive norms and minimum standards for participation in an dynamic global marketplace in works of authorship and other copyright materials… In addition, the copyright and enforcement provisions of the Australia-United States Free Trade Agreement (AUSFTA) are of particular significance, not only because AUSFTA was, at the time of its adoption, a state-of-the-art pact between Australia and one of its most important trading partners, but also because it has contributed significantly to the template for the Trans-Pacific Partnership (TPP) Agreement negotiations, in which Australia is now actively engaged along with ten other trading partners around the Pacific Rim.

The MPAA goes on to point out that the “three-step test” for limitations and exceptions to existing copyright law means that no one's going to be creating blanket exemptions for “private use” or “backup copies” which, according to the MPAA “falls well short of compliance with global norms.” The MPAA also warns the ALRC to not get any funny ideas about adopting American-style “fair use,” something it enjoys using (“MPA members, who, after all, are users as well as creators of copyrighted works, depend upon it in their business and creative operations…“) much more than it enjoys being forced to respect it.

The enactment as part of Australian law of a new system based on the fair use doctrine would not bring with it this century and a half of judicial precedent that allows counsel, and the companies and individuals they advise, to rely upon the doctrine. Indeed, at its introduction, the new system would be unsupported by any binding precedent at all.

Hmm. I would imagine our fair use doctrine began without any binding precedent as well, because when things start, it's usually on the ground floor. Then there's this bit of hypocrisy, considering the MPAA spent a couple of paragraphs reminding the ALRC that it was subject to trade agreements composed by the USTR, an American entity.

Since it is inconceivable that, as part of any new system of copyright exceptions in Australia, its courts would be directed to slavishly follow U.S. precedent, it is inescapable that there would be considerable uncertainty about the resolution of claims based on the new system in Australian courts. This is likely to create a deleterious level of unpredictability for copyright owners, copyright users, and the public. Whatever social benefits might fairly be attributed to the fair use doctrine under U.S. law would be unlikely to survive the passage across the Pacific to Australia. 

“Inconceivable.” The MPAA keeps using that word. I do not think it means what it thinks it means. The MPAA has clearly pushed for Australia, along with many other countries, to follow US precedent when it comes to copyright length, restrictions and enforcement. Those negative aspects seem to “survive the passage” without any deleterious effects. But somehow, “fair use” just can't make the trip unscathed.

Judging by the followup paragraph, it looks like the only reason fair use couldn't make its way across the ocean is because the MPAA would have its boat scuttled and its crew tossed overboard to be eaten by shrieking eels. Here's the MPAA's real fear: someone might get something for free!

An additional uncertainty involves the impact of a change in Australian law on existing licensing agreements. Since the likely purpose, and even more likely a result, of borrowing from fair use to amend Australian law would be to expand, at least to some degree, the scope and applicability of exceptions to copyright protection, it is almost inevitable that some licensees would be compelled to re-examine whether they any longer needed to obtain a license for particular uses, or whether they could instead rely upon the expanded exception resulting from the new fair use provision. 

The MPAA states that any new exemptions would “destabilize settled markets for the licensing of copyrighted material.” Good old MPAA. It loves “settled markets.” The IP world has been changing very quickly over the last 15 years, but the MPAA's ongoing response is determined stasis, making it look for all the world like a plate spinner who's down to his last plate, but is spinning the HELL out of it, all the while yelling “NOBODY TOUCH ANYTHING!” 

Filed Under: australia, copyright, copyright reform, fair use
Companies: mpaa