Editor of Meanjin Sophie Cunningham writes in today's Crikey:


Just as Melbourne’s heat wave was building, a couple of weeks before 7 February, many Victorians experienced a perfect summer afternoon. Even as the afternoon unfolded, even before nostalgia had had a chance to bloom, it felt like a golden time. Leonard Cohen was performing in a vineyard in the Yarra Valley. The temperature was perfect, the ambience joyful, the music sublime.

There he was, a short 75-year-old man in an old-fashioned suit and hat, who’d been forced back onto the concert circuit after being defrauded of millions of dollars, delivering a performance that felt like a blessing. He was present, engaged, intelligent, in control and sang songs written thirty years ago with a sense of both depth and irony that only time and age can bring. It was a kind of revelation. Good artists do keep on getting better. Their work does remain relevant. The question is, does government know how to support either the relevance or the revelations?

That afternoon is all the more crystallised by what’s happened since: fire, flood, and a looming depression. When launching the Festival of Ideas -- Climate Change/Cultural Change (it’s being held at the University of Melbourne from 15 to 20 June), festival director Patrick McCaughey argued that we have to see this as a time of transformation, not cataclysm. I confess that I have been trying to think about the debate over the Productivity Commission’s proposed changes to copyright rules in the same way but now the discussion draft of their proposal has been released they have succeeded in confusing the issue to such a degree that it’s hard to remain so sanguine.

Let me paint you a picture. You are an Australian literary agent with a local author called -- well, let me call her Leonora Cohen. There is interest in her work from a publisher in the UK and from an Australian independent publishing house. The catch is that, if the Productivity Commission’s recommendations go through, the UK publisher will maintain copyright over Cohen’s work for as long as they keep the work in print, while the Australian publisher will lose their copyright after twelve months. It will make sense, then, for the agent to keep talking to the UK publisher.

As well as being overlooked in such "auctions", these independent houses now have to take the risk that if they take on an as-yet-unknown writer in whom no overseas house has shown an interest, thereby drawing attention to the writer’s talent, the literary agent may then succeed in selling that writer’s rights overseas. At that point the overseas publisher could then compete directly with the Australian publisher. Australian publishers, then, will have to be motivated by faith alone -- they sure won’t have any laws on their side.

If you don’t care about the survival of independent publishing in Australia -- houses such as Allen & Unwin, Scribe, Text Publishing and Melbourne University Publishing -- perhaps this doesn’t bother you. But to add a bit of colour to this picture, let me point out that if compelled to sign her head contract with a UK publisher, it is possible Leonora Cohen will earn less income. This is because she makes about $3000 on every 1000 copies sold of her $33 book if she sells her work through an Australian publisher, but less than one-third of that if her work is sold through an English publisher because she will get an export royalty. It’s like being an Australian writer in the 1950s all over again.

The logic behind opening up copyright after twelve months is that -- according to the commission -- most of a book’s sales are achieved in the first year. This is, not to put too fine a point on it, bullsh-t. It might be true for unsuccessful or only modestly successful novels, but successful novels -- such as Tim Winton’s Cloudstreet for example -- achieve the bulk of their sales after 12 months. So, the commission is particularly penalising successful Australian authors and forcing them to seek publishers elsewhere.

Back to Leonora. She’s a well-networked young woman. She meets Salman Rushdie, who has come to Australia for the launch of Melbourne’s new Centre for Books and Writing. In an animated conversation about the Australian publishing industry she points out to him that Australian writers without overseas publishers will soon have less copyright protection than their English and American counterparts. Rushdie muses whether this is some kind of post-postcolonialism in which power is returned to the coloniser. Leonora goes home and reads the detail of the commission’s report online.

Early in the report there is the following statement: "Australian publishing has flourished over recent decades", but Leonora fails to see how this could continue to be the case, given the kind of cultural sabotage the commission is considering implementing. Leonora begins to wonder if the people who prepared the report for the Productivity Commission actually understand what writers do, what publishers do, the difference between them and how culture in Australia is produced.

She gets depressed and listens to her namesake (who, incidentally has an independent Australian publisher, Text Publishing, who makes his novels available to Australia’s reading public.):

I said to Hank Williams: how lonely does it get?
Hank Williams hasn’t answered yet
But I hear him coughing all night long
A hundred floors above me
In the tower of song
I’m just paying my rent every day
In the tower of song.


This is the editorial to the next Meanjin 68:2, in bookshops June 1.


This was my reply:

Sophie

I'm sorry, but your piece is about as silly as it's possible to get!

The issue is not about territorial copyright, much less copyright in general. It's about the residual constraints on direct bookseller importation that exist in the copyright act: the 30/90 day provisions.

I for one - and I do know something about publishing having worked in the industry for 35 years - welcome the proposed abolition of these provisions, because I'm optimistic enough to believe that the industry and all its various players will benefit, as will the consumer.

Your logic is quite absurd. You are actually arguing that removing the fence will destroy the house and make it uninhabitable. Or removing the security patrols from around the apartment block will extinguish all the property rights of the apartment owners. Or removing the scaffolding will make the completed building fall down. Or removing the wire guard will cause the grown tree to wither and die. I could go on.

Don't confuse the Parallel Importation Restrictions (PIRs) with the entirely separate legal reality of copyright, which is governed and protected by contract.

Booksellers will only import when the local rightsholder is not servicing them competitively and professionally. It would not be good business to do otherwise. It will therefore remain a marginal activity, a prod to improve performance.

Publishers will have a strategic choice: step up and compete, or retreat and die. Most, quite sensibly, will do the former.

Leonora will be a winner!