Saturday, June 8, 2013

The ALRC Copyright Reform Proposals.

Wednesday this week was the day a live grenade was thrown at Australia's dated Orwellian Copyright laws. 

It was hurled by the Australian Law Reform Commission (ALRC) in the form of a Discussion Paper which was a long 383 page response to the submissions it had called for last year as part of its brief to report to government on the adequacy of our copyright regime to deal with digital realities, specifically whether content users were getting a fair deal.

There were close to 300 submissions. 

What initially impressed me about the Discussion Paper was its respect for all points of view, even the crazy ones. It was sympathetic, nice, polite and politically neutral at every turn.

But under this guise comes a grenade that will have radical reverberations through all the ways consumers interact with copyrighted material in the 21st century. 

The ALRC has called for a flexible, open-ended Fair Use concept to replace all our current Fair Dealing exceptions, thus freeing them from the tightly prescriptive shackles that make them so frustrating and limiting for most users currently; and it's also, amazingly in my view, called for the repeal of the 30 year old Statutory Licenses that govern uses of content in educational institutions and governments and which cost these bodies close to $100 million a year in fees paid to copyright owners.

It's as if the ALRC has said 'Go back and start all over again! The system's not working. Come up with fair, clear, sensible proposals that consumers will respect, and that won't bog down education in silly bureaucratic tangles'.

Has it shown a bias towards content users like schools and universities, and tech giants like Google who want as much frictionless access to content as possible? Certainly. But this was predictable as owners in this country have had it too good for too long, and a good measure of re-balancing was overdue.

But the commission has obviously bent over backwards to be fair to owners as well. This is a pro-business document in a substantive way. It accords enormous respect to the need for any copyright regime to provide sufficient incentive and financial reward to owners and investors. In fact I found it increasingly frustrating the longer I read, in that it seemed to accord too much weight to what, for me, were silly opinions that should have been whacked out of the park. It was was bipartisan to a fault. 

Not once does it refer to the need to restore some measure of 'balance' between owners and users (apart from when quoting a submission). It never refers to the currently fashionable 'users rights' terminology. It never criticises court judgements that have been universally condemned, like the appalling Kookaburra/Men At Work case. It never even suggests that conservative, iffy judgements like Optus Now may well have been decided differently under a more progressive Fair Use regime. 

However this tendency to be even-handed and nice means it refuses to come down on one side or another even when it's called for to tease out the implications - many dire - of a Fair Use application. It lets far too much go to the keeper.

One critical example is its recommendation that 'education' be added to the list of 'illustrative purposes' for determining whether a particular use is fair. It studiously avoids mentioning whether this includes copying by teachers for students, such as multiple copying for classroom use, or downloading an article from a web site to a school server for classroom display. But this is the crux of the issue and something the school systems desperately want. Right now they have to pay big sums for it. In fact the schools claim that 65% of what Australian schools pay for under the statutory license is free in jurisdictions such as the US and Canada. 

It's as if the ALRC is a stealth bomber but not coming clean about it. 

There is some excellent stuff on 'non-consumptive (technical) use', 'third parties', 'text and data mining' and broadcasting, but this familiar refrain keeps being repeated over and over again:

       'The users say this. The owners say this.
        Fair Use will sort it out. 
        Some uses will be judged to be fair, others not. 
        It all depends'.

This to me is profoundly disappointing. For a body such as the ALRC, rich in legal knowledge and expertise, to constantly throw everything to future court judgements in this way sort of escapes responsibility for providing a measure of reassurance to users and owners alike. You are the one tossing the grenade so give us a feel for what you think will happen. Not a guarantee, just an educated guess. And we're not even asking for a preferred position or outcome. For lawyers that would be going just a tad too far!

This is copyright liberalisation the hard way, via litigation and the courts. Millions of dollars will likely be spent to get clarification. Two recent cases in the US and Canada to do with fair use in education have recently expanded what's deemed to be fair - one allowing US lecturers to add articles and chapters to e-reserves for access by students (remunerable in Australia), and the other allowing Canadian teachers to multiple copy for classroom use including constructing coursepacks (also remunerable in Australia) - so it is highly probable this sort of lawyer enriching trudge through the courts will be necessary in Australia. (As US copyright guru Larry Lessig quipped: 'Fair Use in America is the right to hire a lawyer'!)

Finally, on the issue of contracts and whether they should be allowed to override the fair use exceptions  in the Act. The ALRC effectively has it both ways. For some reasonably innocuous exceptions - no, they shouldn't be; but for the more contentious, more liberal ones like teacher copying - yes, they possibly should. 

So in the end it will all come down to this: the current Statutory Licenses will be replaced by voluntary licenses where universities and school systems will sign directly with publishers and broadcasters and other owners, or with collecting societies, and there will be enormous argy-bargy and vexation over what should be paid for and what shouldn't, and the amounts paid; and there will be some rather large test cases between uses and owners to sort out what precisely is fair and what isn't.

In my humble view, in order to avoid enriching any further the legal community, and to save decades of time, both parties should devise agreed protocols as to what should be remunerable and what should not, and the range of uses allowed and for what purposes. Such protocols would settle all sorts of things and allow business to proceed. Individual owners, competing in the marketplace, can come to their own agreements on prices and any further allowances, but they can't offer less than the minimums spelt out in the protocols. We're used to Awards and minimum wages and conditions in this country.

To get these sorts of industry protocols takes a good measure of generosity on all sides. Let's hope it's there.  

In conclusion, the ALRC is to be congratulated. After all, the grenade was long overdue.