If there is anything positive that could come out of this Strategy Group process it could be this: the resurrection of the 'Australian Edition' concept.
This concept has been kicking around ever since the early days of the first parallel importation debate in the late 80's. It was advocated by the ABA as a way to protect Australia as a rights territory without, at the same time, having to extend the full 30/90 day protection to the vast mass of imported titles. Such an Australian edition, whether an original title or a local edition of an overseas title, would have a separate ISBN. Only these titles would be protected. Booksellers would be prohibited from importing the overseas edition, including remainders. For titles without specific Australian editions - booksellers could import more liberally.
The proposal got shot down by the Attorney-General's department (as it continues to do) on the grounds that it breached the Berne Convention to which Australia is a signatory. The convention prohibits governments from enacting any provisions into their Copyright Acts that would have the effect of favoring their own nation's output. The Australian Edition concept certainly does that.
So what has changed? How could this concept make a comeback? It can't be by a change in our law. The Berne provisions still prevail. But it could be done via a protocol adopted by the industry that, informally, governed importation.
Such a protocol could address the trade's need to ramp up its competitiveness on importation without having to revisit the tired parallel importation debate and persuade a reluctant government to change the law.
I would suggest something like this:
The parties, being Australian booksellers and publishers, agree to the following code of behaviour regarding importation of overseas published titles:
1. Australian booksellers, as per the current law, would not seek to import any title where an Australian Edition of that title met the 30/90 day provisions of the Copyright Act.
2. All other titles would be able to be imported under the following conditions: where the title was not available in Australia within seven days of overseas publication or within seven days of any subsequent out-of-stock situation.
This distinction between local editions and the huge volume of other imports would allow the trade to get beyond the current impasse to which our current law subjects us.
Another protocol should also be entertained - to do with pricing. I would recommend that publishers sign up to an agreement along the following lines:
The parties, being publishers, agree to the following code of behaviour regarding the pricing of overseas-published titles:
1. When the Australian dollar is strengthening against foreign currencies to the advantage of local consumers, Australian RRPs will at all times reflect the average exchange rate for the prior medium term period, eg. three months, and will be adjusted on a regular basis accordingly.
2. An additional amount, eg. 10%, will be added to cover exchange volatility and other charges, prior to adding GST.
3. An adjustment to traditional price points will be also usually be made.
4. Booksellers would be free to import around any local supplier who consistently failed to honor this protocol.
(An objection could be made that publishers could not enter into such a pricing agreement without coming up against the Trade Practices Act and its outlawing of cartels. But the point of this agreement would be to serve the interests of the consumer, not the profitability of publishers. It would act like an industry code of ethics, and of course would need to be worded in precisely the right legal way).
I am not naive enough to think that the APA, as currently led, would enthusiastically embrace these sorts of protocols. The booksellers would, as they have to compete with Amazon and The BookDepository, and so require REAL support from publishers on pricing and availability if they're not going to get it from abolition of the importation provisions. And they won't benefit much from the government slapping the GST on online suppliers either. This won't be anywhere near enough and will be quickly washed away by exchange movements and increased discounts.
No, only some creative, liberal, reformist, all party agreements on business practices is the way to go. These are the only way to get beyond the legal framework that currently deadens so much competitiveness in our industry.
Let the lawyers work out how such protocols would play legally - as defences in any litigation. The point is to move beyond our current impasse.
I'm sure this is what Barry Jones and Kim Carr would like to hear. Something rather challenging and meaty.