Copyright Down Under: The Year that Was, in the Land of “Oz”

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Source: shutterstock.com

It has been an “interesting” year for copyright down under in Australia; “interesting” in the sense of challenging and troublesome, but also with some glimmers of light and hope. It was the year in which the Productivity Commission brought out its destructive anti-copyright report, advocating a regime that if implemented as recommended by the Commission would undermine the foundations of creativity in Australia, but was also the year that saw the first successful application of Australia’s new site-blocking law. It was a year in which the creative community mobilized to explain why the seductively simplistic push for Australia to adopt a US-style “fair use” regime would not support artistic endeavour, and when the film industry determined to fight back against widespread online piracy through a five-point strategy led by Australian studio Village Roadshow.

Australia has always been a country known for its cultural specificity, one that creatively punches above its relative economic and population weight. Perhaps it is the isolation of being “down under” (from a northern hemisphere perspective), or its unique founding experience (convict settlements, etc.) and its own version of the frontier (the outback) that has shaped the national psyche and inculcated a strong desire to tell Australian stories, whether in literary form, song or film. From the time of the first European explorers, it was clear that Australia is a unique place, from its flora and fauna to its aboriginal peoples. To these unique attributes can be added recent immigrant experiences, from the post WWII era to new waves of Asian immigration, combined with a love-hate relationship with the so-called “mother country” and a more recent embrace of US pop culture.

The relative isolation has fed another phenomenon as well; a feeling amongst many that Australia is at the end of the line when it comes to access to current global culture, and that Australians have to wait longer than those in the northern hemisphere to receive the latest books and films. If that was ever true, the internet has changed all that, both because many Australians use online access to bypass any built-in market delays, but also because the market has responded by ensuring that Australians have access to the latest content in real time. Despite this, Australia has some of the highest rates of illegal downloading in the developed world, with a reported 31 percent of 12 to 17 years olds engaged in online infringement in the past year. There is no question that copyright industries are under threat—but also that they are fighting back by reminding Australians why they are important.

A major threat to Australia’s creative community has been mounted this year by the Productivity Commission’s report on intellectual property. If one wanted to dismantle the copyright ecosystem that has encouraged and nurtured creativity in many fields of artistic endeavour for many, many years, one could not have done a better job than the wrecking-ball report of the Productivity Commission which, in its draft issued in April, recommended the following regarding copyright;

  • a draconian reduction in the term of copyright protection, from Australia’s current term of 70 years to something in the range of 15 to 20 years;
  • introduction of an open-ended US-style “fair use” regime to allow use of copyrighted material without the permission of the rights-holder;
  • denial of copyright holders right to prevent publication of their work;
  • legalization of parallel import of books published abroad even where an Australian company has the exclusive distribution rights and;
  • the legal right to bypass and disable the geo-filters (geoblocking) used by online content companies in order to restrict consumer access to only those markets where they own the rights.

In the face of this blatant attack on creativity, the creative community came together and fought back, both through public and private advocacy, pointing out the substantial contribution to the Australian economy of the copyright industries, not to mention the negative impact on Australian cultural integrity that would result from implementation of the report’s recommendations.

Some of the Commission’s recommendations, such as calling for a draconian reduction in the term of copyright protection, were surely made just to get attention since there was no realistic prospect of implementation. Not only is Australia signatory to international conventions that require a minimum of 50 year’s protection after the death of the author of the work (the minimum international standard) but the US-Australia Free Trade Agreement requires a copyright term of 70 years (the new “normal” standard for most developed countries and the standard that was adopted in the Trans-Pacific Partnership-TPP). The government sensibly ruled out such a change, but that did not stop the Productivity Commission from continuing to rail against the existing length of copyright protection in its final report, publicly released on December 20. All the other anti-copyright recommendations in the draft report were repeated in the final version despite substantial input from rights holders commenting on the recommendations. These include the proposal that Australia adopt a US-style “fair use” doctrine to replace the tried and true fair dealing laws that have governed the sector since the very inception of the Commonwealth. The music industry site APRAAMCOS aptly described the Productivity Commission as having “lost its way on IP policy”. A social media campaign against adoption of “fair use” has been launched by a number of Australian celebrities and copyright bodies, featuring “how this book (or this song) changed my life”. This creative campaign, sponsored by the Copyright Agency and the Australian music industry calls for website visitors “to watch how a book or song changed these people’s lives, then upload your video, or just post about how a book, song, play, poem or other piece of creativity changed your life! Pledge to respect creators, get the badge and share it.”

If there have been challenging moments for copyright in Australia in the past year, there have been bright spots as well. On December 15 the federal court, after a lengthy period of litigation between content providers Foxtel and Village Roadshow on the one hand, and major Internet Service Providers, Optus, Telus, TPG and M2 on the other, ordered the ISPs to block The Pirate Bay and a number of other copyright-infringing websites. This is the first successful attempt to secure a blocking order under Australia’s new site-blocking legislation passed in June 2015, and ironically comes at the same as the Productivity Commission is recommending that bypassing of geo-blocking be made legal. Site blocking, which has been instituted in the UK for several years, has (as I have written) proven to be an effective tool in combatting piracy and in converting regular infringers into becoming legitimate consumers—but it must be done comprehensively to be effective. There are still some unresolved issues, such as the need to find a quick and cost-effective means to stop notorious pirate websites from re-emerging under a different name—which undermines the effectiveness of the order if not checked. However, the court ruling is a good first step and affirms the intent of the legislation while settling the thorny question of cost-allocation between content owners and ISPs.

The battle to preserve a fair and adaptable copyright regime that gives a fair deal to creators will no doubt continue. The government’s response to the Productivity Commission’s final report is expected in early 2017. This will be an important moment for Australia, its culture and its copyright industries. Given the degree to which Australians support and cherish their culture, hopefully there is a solid foundation for Australian creators and creative industries to convince legislators not to gut a copyright ecosystem that has worked well over the years for both creators and consumers. If this year was “interesting”, just wait for 2017.

 

© Hugh Stephens, 2016. All rights reserved.

 

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