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As someone who is both a lover of art and creativity and the former head of entertainment businesses, here’s what I think this copyright debate is essentially about.
It is a fight between sound business principles and ideology.
A fight between copyright laws that provide effective and long accepted framework for protection of creators’ rights to confidently manage the use of their work and a dishonest ideology that has been manufactured by monopolists to legalize what is essentially property theft fuelled by new fashioned clever self-serving arguments that creative production should all somehow be free for all.
It is a fight between creators who need copyright protection to flourish and rent seekers who need to eliminate copyright because it stops them from getting unfair use of other people’s hard crafted work.
I find it almost unbelievable that the Productivity Commission looks set to come down on the wrong side of these arguments.
Read: Productivity Commission drops copyright bomb
The ideology of ‘copyleft’
Let’s be clear about what underpins the Productivity Commission’s determination to dilute copyright and compromise it with notions of fair use as against already existing provisions of fair dealing. It is not free market thinking. It is an ideology. An ideology manufactured to benefit the large corporations who stand to gain by squeezing rights holders into the workhouse.
These manufactured arguments will be all too familiar to all. ‘Content should be free.’ ‘Big Content is the new Big Brother.’‘Copyright holders are vested interests.’ ‘Copyright holders are freeloaders.’ ‘Copyright is theft.’ …and so on. These arguments are often referred to as the Copyleft.
The squeezers have been creating these trendy, up-beat, sometimes even anarchic arguments against copyright protection for ages now. They are setting up groovy campuses and think tanks, funding university programs, hiring lobbyists, impressing on people that it’s all about knowledge and opportunity – when it’s all really about more money for them.
They’ve managed to make the impoverishment of the creative community sound ‘cool’, when it’s the opposite.
And to see the measure of the success of this strategy you only need to look at the way that the Productivity Commission treated some of the academic proponents of the big tech position at its public hearings. They were treated as disinterested parties, experts at law, when in fact they are part of a lobby group funded by the tech companies and highly partisan. It was frankly an outrageous display of bias – and a long way from the behaviour you’d expect from an impartial inquiry.
Intelligent change
For a long period from the 1980s Australia navigated rapid and large scale economic change well, arguably better than any other country. Yes, there were losers from the big economic reforms of the late twentieth century. And yes, not everyone prospered equally from the mining boom or suffered equally from the Global Financial Crisis. But how much better has our society come out of that era than in others?
We did so because we have been blessed with level-headed policy makers who displayed the right combination of intellectual foresight and pragmatism. People who could see through the ideology of vested interests. And this allowed us to devise practical, measured reforms that allowed the gains to flow to just about all pockets of our society. Extreme ideology has usually been held well in check.
The questions for our nation are:
- Can we do it again?
- Can we create the right sort of public policy framework for the digital age?
- Or will we be taken for fools, privilege one group of interests over the majority, harm creators and end up regretting it when all the damage is done?
In recent decades Australia has faced up intelligently to several copyright challenges.
In 1968 our copyright legislation was amended to protect copyright over films, television and sound broadcasts.
In the 1970s and 1980s it extended to the related public lending right and to remuneration for copying by the education sector – which led to the creation of the organisation I now chair – the Copyright Agency, which protects the rights of many tens of thousands of talented Australians.
In 2000 copyright extended to intangibles accessed over the Internet.
Our writers today benefit from a world-leading system of distribution of rights payments from copying and lending by public libraries and educational institutions – very welcome annual cheques.
And all of these changes to copyright protection were balanced by new exceptions to copyright to protect educational use and specifically enable parody, satire and private use. Put all these changes together and they add up to a successful functioning regime which pragmatically negotiates copyright issues raised by technology and users while defending the inalienable rights of Australia’s creative talent.
Given the modest incomes of Australia’s writers, it’s not only hard but I would suggest impossible to sustain the case that all this has unduly benefited copyright holders.
Creators’ rights and business reality
And yet, the Productivity Commission believes this evolution of copyright law has expanded copyright protection too far. That it is has become too expensive to maintain. And that radical measures are needed to wind it back in the interests of consumers.
Frankly this is fantasy – nothing short of patent nonsense. The Commission has erred mightily in many of its assertions in the draft report. There is no evidence whatsoever that rights holders have advanced at the expense of consumers. And no evidence that costs are higher here than elsewhere. In fact, because litigation levels are so low here compared to elsewhere, the opposite is true, as is widely acknowledged internationally.
Read: Good for lawyers, bad for creatives​
Their central notion that copyright laws are holding back innovation is a complete fallacy and profoundly offensive to home grown digital operators and their production.
What I am advocating is about ensuring a creatively-focussed policy agenda which this country very much needs. One which can actually succeed. Legal protections enshrined in the Copyright Act are definitely not anti-business.
On the contrary, the US Chamber of Commerce put the case well for our copyright system. It said: – ‘Historically, Australia has been a world leader when it comes to IP legislation. Australia’s legal framework makes it one of a small group of nations that not only enshrines effective incentives to create IP in law, but critically, provides legal certainty to innovators in the marketplace. It is a balance that mobilises the innovative and creative talents of its population while also serving consumers in the marketplace…’
Only a disconnected academic interpretation of copyright law could overlook the fundamental importance of strong copyright laws to creators’ rights and to investment decisions in their work.
Disrespect of intellectual production​
I want to make just one further point, and in doing so put this issue of ensuring the integrity of Australia’s copyright laws in its full perspective.
You don’t have to be a genius to see that right now economic reform and innovation are in serious trouble. There’s a backlash. Whether it’s the Brexit, or the rise of populists like Donald Trump and Marine Le Pen, or even the result of our own recent federal election, too many people are saying that innovation and economic change are creating too many losers and too few winners.
Undermining copyright will perhaps prove such critics correct. By stopping so many self-employed creative people from gaining adequately from their work, it will create a potential new source of backlash. By damaging publishing houses it will create a potential new source of unemployment.
If the thousands of young people coming out of our universities each year hoping for a job in the creative sectors of the economy are robbed of any hope of making a living from their talents, how easy do you think the innovation agenda will get? How easy do you think economic reform will get? And then there is the whole array of digital invention and intellectual property attaching to it.
To follow this ill-considered poorly argued report which is so disrespectful of intellectual production, would be a disaster for our nation. It would represent surrender of our creative assets to hostile forces.
If we are to be all that we can be in the digital world, we need to back creativity and invention, as the Prime Minister himself is determined to do. It’s a task that can’t be achieved by parroting simplistic theories; it’s one that needs a wider and deeper view, informed by reasoned argument and real evidence.
I encourage the Productivity Commission to think again.
If it isn’t able to do this, on behalf of Australia’s creators and those who back them, I urge the Australian Government and the Parliament to ignore the recommendations of the forthcoming Productivity Commission Intellectual Property Arrangements Report because Australia deserves better outcomes.
This article is an extract from a speech delivered at the Melbourne Press Club today. The full speech is available from the Copyright Agency.
