How the Libs stuffed copyright reform

Cross-posted from The Conversation:

Copyright matters. It is a body of law that affects what we know, how we experience and understand the world, and what we are allowed to do with the knowledge we gain. But for most of us copyright is more of a snarl. We only know of it as a restriction that complicates how we interact with each other. It is not often experienced as regulation that helps make good new things happen.

Malcolm Turnbull’s “ideas boom”, his innovation and science agenda, is supposed to make innovation happen by spending A$1.1 billion over four years. The policy papers don’t include any mention of copyright. But copyright rules and regulations sit behind all the agendas found in the innovation statement.

So what is happening with the rules that will affect our capacity to “leap, connect, sparkle and guide” others? There is a copyright agenda underway. And in short, under Attorney-General George Brandis, there has been a lot of twitching and jerking.

Brandis did not have a clean slate. When he took his place in the Abbott ministry there was already an extensive and much needed review of copyright underway, established by the former Labor government.

Headed up by UTS Professor Jill McKeough, the Australian Law Reform Commission’s Copyright and the Digital Economy Inquiry undertook an exhaustive process to produce this final report.

Brandis sat on the final report for some time, tabling it in Parliament on February 13, 2014. The day after he gave a speech where he agreed with the problems highlighted in the report:

“The Copyright Act is overly long, unnecessarily complex, often comically outdated and all too often in its administration, pointlessly bureaucratic.”

But rather than engage with the recommendations of the report, he raised the furphy of piracy — an issue specifically excluded from the ALRC terms of reference, reserved for trade discussions conducted without public input — and then in August 2015 the Abbott government established yet another review.

The Productivity Commission inquiry into Austraia’s intellectual property system looks beyond copyright. Ostensibly there is a wide-ranging inquiry into IP laws and “incentives for innovation and investment, including freedom to build on existing innovation”.

However successive governments have negotiated away many areas of Australian IP policy in international agreements, beginning with Chapter 17 of the 2005 the US-Australia Free Trade Agreement, and more recently the 2015 Trans-Pacific Partnership. These agreements, negotiated without public scrutiny or evidence about impact, limit our capacity to determine the national interest in fashioning the balance of our IP laws.

In terms of copyright, the Productivity Commission inquiry covers much of the same ground as the ALRC: efficiency and balance, adaptability for the future and evidence based reform. In response to the issues paper 115 submissions were received. There will be another round of public submissions when the discussion paper is released in March/April 2016. So many rounds of public consultation going on, but to what end?

Among the raft of government business hidden in the Christmas break an Exposure Draft was released by the Department of the Communication and Arts (DOCA) on December 23, 2015. There is a public invitation for comment until February 12, 2016.

The background paper to the Exposure Draft notes:

“It is appropriate to proceed with the amendments contained in the Bill before the [Productivity] Commission reports as those amendments simplify the operation of the Act and are likely to be consistent with the recommendations (if any) made by the Commission.”

However the draft provisions are far from simple to follow. They completely fail to address basic issues affecting those who legally access material held in public collections. The bill is based on fantasies about how institutions work in practice and ignores the public’s experience of them altogether. Mere oversight or part of the government’s design?

For example, section 113M allows libraries and archives to make “preservation copies” of original material that is of historical or cultural significance to Australia, but they are not allowed to make these copies available to patrons except through a terminal on site. As a researcher I am not allowed to make an electronic copy of the material so I can use it in writing up my research. As is common practice in libraries I would probably be allowed to transcribe a document by hand.

However transcribing by hand is, as a matter by law, no different to a digital reproduction. Why does this law require me to spend public research money to physically attend the institution, perhaps also requiring an airfare and accommodation expenses, so I can take out my quill?

The bill sets out excessively complicated rules that allow institutions to provide material that might or might not be in copyright to researchers. The rules only apply to a limited number of institutions. The ability to comply with them is based on the incorrect assumption that collections are catalogued to the Nth degree where it is easy to determine who the author was, the date of making the work, the date of publication of the work, the date of the author’s death, relevant details of the current estate holder.

These collections have little commercial, educational or cultural value if left dead, buried and forgotten because of lousy copyright laws. Institutional purpose and the value of the collection is generated when the material is utilised, repurposed, and made to bloom again, by users of the collection.

If the “ideas boom” is to move from mediocre slogan to stimulate real “leaps” and progress so that the “brightest” can shine, there is a need for more than a redistribution of public funds to starving public institutions. Copyright law reform needs to be taken seriously as a political concern, not left as a plaything shunted from inquiry to inquiry, while other games are carried on behind the scenes.

Article by Kathy Bowrey, Professor in Intellectual Property Law, Faculty of Law, UNSW, UNSW Australia

Comments

      • All 3 do this -Taxes play a huge role and provides the source of DEFLATION. If I give you $100 and then tax you $90, just how much did I really give you? The middle class is shrinking and they claim the 1% are making too much. Is that really the problem? No. The problem is the 40% (government) is broke and consuming a steady increase in the proportion of everyone’s income. Government produces nothing. It lives off of what everyone else produces. The more it grows, the lower the real economic growth.

      • When you can demonstrate the Greens have been able to govern in their own right I will take your contention seriously. They have never been more than a minor party with a limited amount of clout by virtue of some numbers in the Senate which were not enough to ensure a majority.

        Many of the middle class jobs have gone off-shore or been lost to technology – tax has little to do with it. In most cases much of dividend from this has been swallowed up by the 1%. Tax minimisation for transnational entities and the wealthy has reached new heights.
        http://www.smh.com.au/federal-politics/political-news/tax-office-statistics-reveal-the-55-millionaires-who-paid-no-tax-20150429-1mw2zp.html
        So a greater proportion of the tax burden falls on low and middle income earners.

        Edit:“The more it grows, the lower the real economic growth.”
        Evidence for that is also very thin on the ground.

      • Don’t you get tired of blaming the evil 1% AlexD – or are you just envious of their continued success? The richer get richer, it’s a principle – you are getting richer, or am I wrong? The politics of envy & jelously. The Government is the problem when it keeps increasing taxes to pay for promises that they know they cannot keep. Germany now wants to impose a petrol tax on all Europeans to pay for the asylum seekers that Germany has let in. Crazy. Agree about the Green’s, they will never get in power in Oz, but if they ever did, the rich would just up and leave and go to to the Isle of Man or NZ and then we would be stuffed.
        Edit:“The more it grows, the lower the real economic growth.”
        Evidence for that is also very thin on the ground. Look at Russia; defence gobbled up 70% of it’s budget in the Cold War; outcome: Collapse. Look at Detroit – when pensions reached 50% of Detroit’s expenses, the rich, middle class and lower middle class just pulled stumps and left because they kept raising taxes and now it is the biggest basket case in the USA. Enough evidence for you? Or do you rely on Government largesse?

      • “Don’t you get tired of blaming the evil 1% AlexD – or are you just envious of their continued success? “
        No – I just get tired of the rich telling the middle class to blame the poor and the government.

        “The richer get richer, it’s a principle – you are getting richer, or am I wrong? “
        I think you are missing the point. As a society we do have some choices in terms of how we allow people to accumulate wealth. I for one would rather see people productively engaged and to do that people do need to pay tax. We live in an advanced economy so best get used to it.

        “The politics of envy & jealously. “
        It’s not envy or jealousy bud. That’s just your messed up way of framing issues so we can’t have a real discussion about the actual choices we do have.

        “The Government is the problem when it keeps increasing taxes to pay for promises that they know they cannot keep. “
        No, the problem is many are increasingly married to a shallow value system that believes greed is good and that Ayn Rand was a great sage. The evidence of its failings have been increasingly evident from the 80s onwards.
        Some feel there is virtue in a race to the bottom in which governments leave the poor to fend for themselves and individuals unburdened by regulation and tax. In that free for all world I think you will find that the confidence needed for risks to be taken by investors would rapidly evaporate. It’s time to stop believing in a failed ideology. Pay your taxes and make sure governments do a better job of delivering services.

        “The end is caused by the mismanagement and greed of government – not the 1%.”
        If you think the GFC and indeed most financial collapses are purely the product of mismanagement and greed by government, you have been living much of your life in a neoliberal fantasy world. It is the power and greed of the 1% that is undermining our governance structures. While governments have failed to regulate for this effectively, it has been powerful private capital interests that have derailed efforts to reign in rampant greed in the private sector. Hardly surprising given the large political donations permitted in our democratic system and corporate influence over the MSM.

      • The middle class is shrinking and they claim the 1% are making too much. Is that really the problem?

        Yes, yes it is.

        Growth in capital income has far outpaced growth in labour income for decades. By a factor of nearly two, from memory.

        That’s just one statistic, but they all point to the same thing.

        The problem is the 40% (government) is broke and consuming a steady increase in the proportion of everyone’s income.

        This is false. Tax as a percentage of GDP is relatively low at the moment, and has varied within a band of something like 25-30% of GDP for decades.

        Government produces nothing.

        False. Roads, public services, infrastructure, educated citizens, etc.

        Basically everything you claim is false and utterly unsupported by even a minute or two’s rational thought, let alone evidence.

    • If private enterprise like the banks and car manufacturers where so good at enterprise, why did they need to be bailed out during the GFC by none other than, the taxpayer?

      “Don’t you get tired of blaming the evil 1% AlexD – or are you just envious of their continued success?”
      Nah, we get tired of their incompetence:
      http://www.forbes.com/sites/susanadams/2014/06/16/the-highest-paid-ceos-are-the-worst-performers-new-study-says/#2715e4857a0b1d276c82293a

      http://www.smh.com.au/business/the-economy/10m-ceo-bonuses-encourage-shortterm-decisions-20150309-13z8sh.html

      Man, as the system is starting to fall apart the nutters are really upping the Kool-aid.

  1. Might be easier to have an article for each of the things the Libs haven’t stuffed. It would take up less bandwidth.

  2. Good start to a much needed discussion…
    Creating/accepting so many stupid IP rules and regulations is the business equivalent of a shotgun blast to the head, whatever problems they solved were no where near as significant as the problems these rules create. Personally I believe we need a complete overhaul of all IP laws for the simple reason that they no longer serve the interests of the general population. Copyright’s just one of the problems, US/international Patents laws are a complete joke….and a really bad joke if they are to be enforced in Australia.

    • “Personally I believe we need a complete overhaul of all IP laws for the simple reason that they no longer serve the interests of the general population.”

      That would be you under the misapprehension that our Laberal governments exist to represent the will or interests of the people.

      Just slap the big “Sponsored by Fox” sticker on the front of Parliament House already, and be done with the pretense I say.

  3. Take a look at this: http://www.theatlantic.com/technology/archive/2013/07/the-hole-in-our-collective-memory-how-copyright-made-mid-century-books-vanish/278209/

    See that valley? That’s demand going unfulfilled due to the stifling effect of copyright as it stands.

    So the entire market full of millions of paying customers must be suppressed to protect the “potential” profit of the one copyright holder. I say potential because little money is actually being made. In reality, everyone loses.

    The propagandist rentiers have skilfully convinced everyone that the value of an idea is simply the idea itself, rather than the production of the idea.

    In reality, “good” ideas are as common as air and worth basically nothing. Almost all of the value is in the delivery and IP serves primarily to restrict that delivery, hence the value to humanity.

    I expect no reform of note because I believe Brandis to be a rent-seeker extraordinaire and a rampant narcissist to boot (they go together).

    • maybe books written after 1920s were not even worth reading -lol-

      I agree with you, copyright is just a way to create artificial shortage of ideas to enable rent seeking wet dream

  4. there is no evidence whatsoever that copyright stimulates scientific or technological innovation. It may stimulate commercialization of certain innovations but innovations themself. People creating new inventions are by far driven by something else … So the important thing that copyright does is it slows commercialization and by keeping prices high using artificial monopolistic shortage keeps certain technologies out of reach of large number of people – copyright actually does the opposite of what supporters claim to be doing.

    The weird thing happened over the last few decades – it became normal for a new commercialization of an old technology to be called technological innovation. Our prime minister is one of those people who don’t understand what innovation is. What he want is to create conditions where new commercialization monopoly would be created here as opposed to Silicon valley.

    AirBnB, Facebook, Uber, …are not innovations of scientific or technological kind – rather new business commercialization of the existing technology but still to a large degree protected by copyright to create artificial shortage and extra profit.
    Just as an example, have a look into one of uber patents “PROVIDING USER FEEDBACK FOR TRANSPORT SERVICES THROUGH USE OF MOBILE DEVICES” US20130246301 with 20 claims – unbelievable – it’s just crap – there is nothing there even remotely resembling an technological innovation, yet uber has been granted a monopoly over such ordinary and everyday idea that existed well before 2013 in just slightly different form. It would be easy (even in dodgy east texas courts) to defend against uber but no small startup wanting to get into that business can afford to even get into a legal dispute with large airbnb or some other company. Copyright is used to scare competition and prevent any development of competition.

    You can patent any idea these days (it was just marginally better in past) – it’s just another form of rent seeking without contributing to the society

    • At least with Patents they typically expire within 15-21 years (depending on the Patent).

      20 years is a long time to wait, but there’s always a treasure trove of stuff coming off patent that’s still of value. It’s short enough that I encourage all tech companies to patent everything under the sun. I’ll go to sleep for 20 years and then everything is awesome.

      But Copyright? Author’s life plus 70 years….the author is DEAD goddammit, how it is sensible that any other person could claim the right to profit? In the case of corporate works: 95 years from the year of first publication or 120 from the year of creation, whichever comes first.

      Sure, OK, a person creates something, give them first dibs on the right to make money out of it. But if they haven’t managed to make a buck after 10 years then get stuffed, give someone else a go, someone who doesn’t suck at marketing and logistics, assuming the product is of any value whatsoever.

      Not an entire century! It’s absolutely obscene.

    • Don’t you just love (sarc) the argument that Copyright stimulates creation of content? The IP Trolls love to roll that one out. Oh Noes! Without Copyright protection, nobody would be inspired to create music, art, movies, etc because, obviously, $$$s are the ONLY thing that motivates people to be creative.

      Never mind the wealth of evidence from psychological studies that $$$s and other extrinsic motivators do a terrible job of boosting creative performance.

      More like Copyright just allows Rentier IP Trolls to sit on their arses for 100 years and collect $s.

      Now if Copyright were shortened, to say 10 years, then after a decade of sitting pretty, they’d be forced to dream up something new for the $$s. Shouldn’t be a problem seeing as $$s are such a great motivator right?

      In other words, Copyright REDUCTION would stimulate the production of new content, quite the opposite to what the Trolls claim.

      • I’m more of a radical in this sense. No copyright is justifiable from a moral or practical side so it should be completely abolished. when someone creates something she/he/corp has ultimate business advantage (time) against all the people who want to copy. Same entity also has advantage in a shape of some “moral rights” (recognition, acclaim, …) that he or she can cash out in future (as it was the case in past).
        The way in functioned in past was far better: someone who did something grate would get public acclaim and quickly a well paid position in which he or she is expected to continue the work. This will not only enable that creative person to continue work without need to worry about money but also force (by the virtue of expectations) person to continue creating – double win

      • I’m with you on that. About the only place I see there being a legitimate need for strong IP protection is in the assignment of identity and origin. It is fraud to masquerade as another, or to falsely claim to be the first inventor of some intellectual product. So identity must be protected. Beyond that I see little value for IP.

        You’re right about time / first-mover advantage. Have people forgotten the value of keeping a (Trade) Secret? Just look at what Steve Jobs did with the iPad. He found a leak, silenced it, and sprung the market with the iPad, then enjoyed being able to enjoy an uncontested position for years.

        But once it is broadly known how to (re)produce something, let the cheapest vendor win the marketplace. Stressing again the need to protect creator identity, if the product spreads far and wide, the fame assigned to the creator will tend to have some sort of benefit that will be adequate, as you say. That is enough.

        May the cheapest producer win. Rentiers blocking market activity be damned.