Copyright Agency's Ignorant and Shameful Campaign Against Fair Use

A few months ago the book industry in Australia became aware of the fact that Copyright Agency had set aside $15 million or so to be spent fighting the Australian Law Reform Commission's and the Productivity Commission's recommendations to government to introduce 'fair use' reforms into our Copyright Act.

We now know precisely how that money is being spent. A 'Free Is Not Fair' campaign has been rolled out with no expense spared. Here's a taste:

https://freeisnotfair.org/whats-happening/

https://twitter.com/CopyrightAgency

What you see here is absolute rubbish in its purest form. Not one fact is true. Not one prediction credible. They would have you think the very concept of copyright is about to be abolished, and that Australian authors, performers, musicians, visual artists and all other creatives will die of hunger in the streets.

I haven't read one intelligent, well informed, conceptually coherent, fact-based piece against introducing fair use to Australia. NOT ONE! Because they don't exist. All we get are melodramatic visions of catastrophe and apocalypse.

Copyright Agency's argument is a grasping, self-interested, reactionary stance. An entirely political campaign, with not one iota of policy substance or intelligence to it.

As a former publisher, and in fact President of the Australian Publishers Association, what annoys me more than anything about this dishonest campaign is that the APA has joined it, and evidently supports it lock, stock and barrel. (As have the authors and booksellers). What a complete failure of leadership.

What they are doing is allowing Copyright Agency to construct a grossly false narrative around this issue, believing this cashed-up heavyweight to be the authoritative voice on copyright matters. Nothing could be further from the truth.

Here is the truth: as calculated by Ernst and Young in their 'Cost/Benefit Analysis of Changes to the Copyright Act 1968' (here) released in January by the Department of Communications and the Arts, Copyright Agency's annual revenues will likely decline from $140 million to $100 million. And that's all that will happen to the income of the Agency's 43,000 members.

But the critical point is this: that $30 million decline is revenue that the Agency should never have been collecting in the first place. It's always been illegitimate - a massive overreach, in fact a heist on the public purse. It's collected from what in a fair universe would be considered harmless acts - quotations, non-commercial private uses, incidental/technical copying, data and text mining, library and archive needs, the copying of 10% or less of orphan works (works with no traceable owners), and the classroom display and distribution of otherwise freely available online material.

The one issue that excites the Agency more than any other is 'Big Tech'. Big Tech is the bogey man who will 'steal our content'. In their own words: 'The Australian government is considering changes to water down copyright that would allow Big Tech to get a free ride off creators - a $1 billion hit.'

I can understand why authors are so anti Google. It's because of Google's huge book scanning project, done without any author's permission, which was judged to be fair use by a US court in 2013. The US Authors Guild were so angered by this eminently sensible decision that they appealed it, not once, but twice, and lost both times. The anger still festers today, despite the fact all experts agree the project has had no negative effect whatsoever on author incomes since its inception.

I can also understand why the current management of the Copyright Agency is so anti Big Tech. They are former News Corp, Murdoch men. Enough said.

The fact is that Google does not and has never granted access to any protected or pay-walled content in its search results. Fact. The content owner allows free access - Google allows it. The content owner doesn't allow free access - Google doesn't allow it.  Fact.

As for the '$1 billion hit', this ludicrous claim comes from a work of fantasy penned by the giant accounting firm PWC which was commissioned by.... wait for it......Copyright Agency and other rights management organisations. No one else takes it seriously. It's been thoroughly discredited by independent experts (see here).

The other frequently quoted bogeyman is 'large organisations' who want to get stuff free too. Is it the hated banks, the grasping mining companies and other big end of town monsters? No, these happen to be universities and schools, or otherwise known as the Agency's customers. CUSTOMERS. Yes, horrible robber barons all of them. Here's an example of the thievery these customers are proposing: 'Australian schools are not asking for a free ride - simply a fair ride....Schools would continue to pay the more than $700 million they currently spend each year purchasing educational content for students, and an additional tens of millions of dollars licensing uses like copying material into coursepacks'. (www.faircopyright.org.au, May 28, 2017). (See a good summary of the customer case here).

Finally, this sort of unadulterated rubbish from the Copyright Agency has to be condemned. It's a gratuitous intellectual insult to all of us:

Our kids should be able to grow up inspired by musicians like Jessica Mauboy and Jimmy Barnes, artists like Tracey Moffatt and Brett Whiteley, movies like Mad Maxand Lion, TV shows like Home and Away and Offspring, stories in our bookshops like Possum Magic and Diary of a Wombat and learning from Australian materials like Mathletics and Reading Eggs.

That’s why creator member organisations across the visual arts, literature, music and publishing are united in their opposition to the changes. That’s why leading Aboriginal and Torres Strait Islander artists, musicians, performers, filmmakers and writers oppose the changes. That’s why Australia’s leading playwrights and screenwriters oppose the changes. (freeisnotfair.org)

It's vomitous.

Ernst & Young's Cost/Benefit Analysis of Introducing Fair Use into Australia's Copyright Act

The Department of Communications and the Arts released last week the Cost/Benefit Analysis (CBA) on the possible introduction of Fair Use into our copyright act that it commissioned Ernst & Young Australia (EY) to undertake a year or so ago.

The Australian Law Reform Commission's (ALRC) report Copyright and the Digital Economy was submitted to the government in November 2013, and the Productivity Commission's final report late last year. Both bodies recommended that a US-style open-ended and flexible fair use regime replace our current closed and prescriptive 'fair dealing' provisions.

A fierce debate has been raging in the book industry for the last four years, most of it seriously misinformed.

The EY analysis attempts to grapple with the numbers and bring a measure of sobriety to the various claims and counterclaims. It does that well. It's measured, well researched and persuasive, standing in stark contrast to an earlier, and now widely discredited, PWC report commissioned by industry bodies that argued against fair use. (See an expert demolition here).

Basically the report's assessment is that the costs of introducing fair use are pretty minimal (about $20-30 million annually) but these are greatly outweighed by the benefits to the economy at large. 

Unfortunately the report has a couple of major flaws however. Firstly it doesn't even address, let alone calculate, the effect on industry revenues if multiple copying for classroom use, and coursepack inclusion, of chapters of textbooks and other resources were suddenly deemed fair use. Such copying is now remunerable under the statutory license administered by the Copyright Agency. The industry would lose about $70 million or so a year, a sizeable whack especially considering that more than half of that goes straight to the bottom line).

Secondly, the report barely addresses any issues specifically relating to the higher education sector. Its prime, and in fact sole, focus is the primary and secondary school sector. 

The issue now for the industry is how to respond. If the past few years have been any guide it could get very ugly. The opposition to any reform has been absolute and unrelenting. 

I would urge the industry to seriously reconsider. It should accept changes that make sense in order to gain credibility in arguing against those that don't.

The fair use recommendations that publishers should accept relate to quotations, non-commercial private uses, incidental/technical copying, data and text mining, library and archive needs, and access to orphan works.

The contentious ground will be education. For instance, the EY report calculates that the Copyright Agency currently collects around $9 million per year for classroom usage that the schools argue is manifestly unfair - the display and distribution of otherwise freely available online material being the main one. 

There should be no publisher resistance to allowing these uses to be deemed fair and therefore non-remunerable. 

Publishers should focus their energies on the reproduction of what the report labels 'education-specific' materials - 10% or a chapter of texts produced for curriculum and classroom purposes.

The EY report frequently and favourably refers to Canada which liberalised, via a Supreme Court decision in 2012, the interpretation of their fair dealing provision for education. Multiple copying for classroom distribution became allowable and free, including copying 10% or a chapter of a text for students. But EY refuses to tease out the consequences of similar reforms in Australia. There are stark differences.

The hit to Canadian publishers was about $C10 million, no where near as much as would be the hit to Australian publishers given our different copying history and practices.

The way forward for the industry now is to narrow its focus to this critical issue and lobby accordingly. It will be deemed intelligent and forward-thinking (which would be a refreshing change!) 

It would also be far better placed to forge a united front with the school and university authorities in arguing for sensible and acceptable reform.