Wednesday, January 16, 2013

Copyright Wars - the Submissions

Here's a great critique of the submissions received by the Australian Law Reform Commission (ALRC) in response to its Copyright and the Digital Economy issues paper released last year.

I've now had the opportunity to read most of the submissions myself, especially the major ones from the peak owner and user bodies. There is still - after all the water that's gone under the bridge over the last 15 or so years, and after all we've learned about how things are actually travelling in the internet age compared to early theories and prognostications - complete polarisation of views between copyright owners and users.

This is not just remarkable, it's shameful, and in no way whatsoever is it the fault of the user community. Unhappily, the copyright owners are still in complete denial.

Let's take a cold, hard look at the owners' submissions:

The Australian Publishers Association (APA): 

About 15 to 20 years ago it was de rigueur for publishing submissions on copyright matters to forcefully resist any proposed legal expansion of library, educational and consumer rights over published content just because technology made it possible. Everything was new and foreboding. Giving ground an inch meant possibly losing the whole commercial territory. Everything was rhetoric and emotion. The battles were fierce, he language fiercer.

We've come a long way since then, but the APA obviously hasn't. Here is a submission that's been dusted off from the 1996 pile. It's an exquisite example of early internet thinking. It toes a hard conservative line. The only thing good about it is its consistency. It bangs an old drum and keeps banging it remorselessly.

For example, it's anti-library: 'In particular, the broad library and archive exceptions available under the Australian Act are having a detrimental effect on the ability of publishers to participate in the digital economy to the same extent as many of their overseas counterparts.' (p.6). 'Free exceptions in the Act already eat into the legitimate business of Australian publishers'. (p.1) I'm certain this would be news to most of them.

The APA considers these exceptions a legacy from the analogue era which should be repealed. Such allowed usages can now be licensed. To me this is akin to arguing that no city street or alley should be exempt from eTolls. There's no appreciation of the rights of users to a minimal level of free access for the public good; a public space that has not been privatised. Unsurprisingly, it recommends contracts be allowed to override the fair dealing exceptions. Copyrighted material is, after all, just like 'cement, biros and bread'. (p.32).

The APA has scoured the earth for the meanest, most user-unfriendly exceptions, and most of the time locates them in the UK.

It surprises me that publishers could possibly think that these dated ideas could still resonate in the wider community. Where is the broader, more liberal, way more sophisticated appreciation of the realities of how things are playing out now in the digital economy? Where's the sympathy, the evidence that the consumer has been listened to and the intellectual effort put into appreciating the contemporary zeitgeist and responding accordingly? That is, intelligently.

This submission is a museum piece. It deserves to be, and will be, completely ignored by the commission.

Copyright Agency/Viscopy:

Formerly known as CAL this organisation's raison d'etre is licensing, particularly the Statutory Licenses governing educational and government copying.  It plays a dead bat on all other issues raised by the Commission, exhibiting a frequent 'we are not aware of any problems' haughtiness. It also seems surprisingly unaware that schools and universities might have quite a few issues with aspects of the licences that govern their copying - which they definitely do. (In fact the universities want them abolished altogether!)

Once again the customer is being thoroughly ignored.

Copyright Agency ought to get out more!

The Australian Society of Authors:

This submission is an extremely poor effort. In fact it's simply terrible. It's got more 'No's' in it than a Tony Abbott speech. Plus it gets so many facts and fundamentals wrong. It's as hardline and miserable as the APA submission, but exhibits a whiny 'do we have to put up with this' weariness that kills it stone dead as a credible piece of work.

Let me quote:

'A first principle for literary creators is that copyright law is fundamentally a private right. It is for the author first and the national interest...second'. (p4)

'..copyright law is also a property right....This property may be dealt with, exploited only according to the wishes of the owner.' (p4)

'We take the view that all forms of Copyright Act exceptions have the capacity to impact negatively on the rights and interests of the creator.' (p1)

All these proclamations are simplistic and wrong. Good copyright regimes respect the necessary balance that must exist between creators' rights and the public good. The rights need to be limited and time-constrained, not excessive and perpetual.

You would think that, of all copyright beneficiaries, our nation's authors would be able to muster and articulate a far larger, generous and encouraging vision of the place of creativity in the nation's journey, and the necessary legal, social, educational and economic instruments to ensure its influence. What a missed opportunity.

Libraries are not the enemy. Readers are not all pirates and thieves.

(There's one good point in the submission however, which it shares with the one from the literary agents, and that is its call for some legal guarantee that a fair or stipulated portion of remuneration from that Statutory License should go to authors, and not be able to be overridden by publisher contract. The agents want 70%, which has no commercial basis, but a minimum of 25% to royalty-contracted authors where the publisher is paying substantial sums for artwork, would be absolutely justified).

Now let's take a look at the users' submissions: 

By far the best and most persuasive are the long and detailed submissions from Universities Australia and the Australian Digital Alliance/Australian Libraries Copyright Committee. Both submissions are around 80 pages each, but are are packed with fascinating detail about how the current, inflexible exceptions in the Act are simply not working in the best interests of the economy generally and education in particular.

They are both thoroughly sound and thoughtful documents, obviously written by people at the coalface with decades of painful and frustrating experience. 

If you've not the time to wade through these then the 5 page submission from the Society of University Lawyers (SOUL) nicely summarises the same message.

And the message is this:

'...copyright is operating as a roadblock. Australian researchers and innovators are prevented from making full use of technology that their colleagues in regimes with more flexible copyright exceptions take for granted'. (Universities Australia, p2)

'The educational statutory licenses...should be repealed. Fundamental changes in the way that content is used in universities have rendered [them] increasingly irrelevant....The vast majority of content used in Australian universities is purchased via direct licences with publishers. There is also a global move towards publishing academic content in open access repositories with the objective of enabling the content to be accessed without payment and without the need for a statutory license.' (UA, p3)

Given these sentiments it will be fascinating to watch what happens when the current three year stat license period is up for re-negotiation at the end of this year. For decades the universities have fronted up and signed new multi-year agreements. Will they do so again? Frankly, I doubt it. Journal publishers don't need the license, and textbook publishers' are rapidly moving to a direct licensing model of supply. Here's where the big publishers will win out. Copyright Agency will become simply a default aggregator for smaller publishers and colleges. Revenues from the stat license will no doubt plummet over the next five to ten years. There seems little need to abolish it. It will just fade way. 

Users want 'users rights', based on principles of balance and fairness, to be restored to a central place in our copyright regime, and most are in support of a radical overhaul of our current limited, narrowly defined and restrictive fair dealing provisions. There is widespread support for adopting a general purpose 'fair use' provision as exists in the US Act. 

The submission by reformist lawyers Kimberlee Weatherall and colleagues provides an excellent critique of the current shortcomings in our Act, and an excellent case for the US Fair Use provision being adopted into Australian law. Well worth reading. 

So, in summary, the ALRC is required to report to the government by November this year. If the quality and persuasiveness of the submissions is anything to go by, there seems little doubt that major reforms in favour of restoring a long overdue balance back into our copyright regime will be recommended.

Should authors and publishers be concerned? Absolutely not, but this won't stop them from mounting a ferocious political campaign when the time comes. What a waste.