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Aug 28, 2017

What Business Insider’s rambling hatchet job gets wrong about my work on copyright

A recent piece in Business Insider insults Rebecca Giblin's academic integrity. Here is where it goes so horribly wrong.

Chris Pash has written a rambling piece in Business Insider suggesting that Professor Kimberlee Weatherall and I have acted without integrity in our academic research into copyright. The claims relate to our membership of the Board of the Australian Digital Alliance (ADA), on which we sit as volunteers and independent experts, alongside representatives from schools, universities, libraries, technology companies and cultural institutions. That membership is clearly disclosed on our university profiles online, as well as wherever else it’s relevant.

This isn’t the forum for a line-by-line refutation, but there is an interesting yarn in the pattern of the misrepresentations he makes.

One of Pash’s claims is that Kim and I should have declared our board membership in our recent book, What if we could reimagine copyright? The bow he drew in his email to us seeking comment was that the ADA is advocating for fair use, and the book was about fair use, and thus disclosure was necessary. But in reality it’s not. Reimagine is a thought experiment imagining what copyright might look like if we were freed from vested interests, business models and ways of doing things. In fact, we deliberately didn’t include a chapter on fair use or exceptions because we thought there were more interesting rocks under which to look. One of the biggest themes that emerged from this international collaboration was the idea that copyright is failing creators — and that any reimagined system would have mechanisms in place to better protect their interests. You can see these ideas for yourselves; we made the book available for free online.

Reimagine’s pro-author theme was also at the core of our joint submission to the Productivity Commission following its draft report into intellectual property (IP) last year. There, we told the Commission that it was not sufficient to treat copyright as being purely economic in nature, when in fact creators deserve recognition and rewards that go beyond the bare amount necessary to incentivise creation.

We explained all this to Pash, and provided him access to both pieces of work when he asked us for comment. And yet he still misrepresented the subject matter.

More seriously, Pash also takes aim at my recent ARC Future Fellowship, hinting at some impropriety in the application process. Had he sought comment from me on this, I could have let him know that not only did I disclose my board membership in the application, but I disclosed the single piece of commissioned research that I’ve ever done for the ADA (also publicly available) no fewer than five times.  

Pash claims I was funded to “show how the current ‘fair dealing’ copyright regime negatively impacts culture”. I wasn’t. Neither “fair dealing” nor “fair use” appear in the application at all.

Leading on from Reimagine, my Future Fellowship is actually about how we need to take authors’ interests seriously if we’re going to have any chance of fixing the fundamental problems with copyright. Pash quoted very selectively from the project’s short description on the ARC website. What he left out is the bit that says that the mechanism I’m exploring to unlock meaningful reform in this deadlocked space is “fuller protection of authorship”.

This work was motivated by years of studying how, despite all the rhetoric in their favour, authors always get the short end of the stick. The economic literature into creative labour markets has repeatedly shown that authors are often forced to give up all or the bulk of their rights in exchange for distribution and audience access. There’s lots of reasons for this, but lack of bargaining power is one of the big ones. Other countries, particularly in continental Europe, recognise this by having laws that protect authors in their contracts with cultural intermediaries. In Australia though, authors have no such protection. My work seeks to change that.

So just why is a member of the Copyright Agency Limited’s Board, indeed one of the members who are explicitly supposed to be representing authors’ (rather than publishers’) interests on behalf of the Australian Society of Authors, misrepresenting and seeking to discredit research that’s about making copyright work better for creators?

The Pash piece was published the day before the government’s response to the Productivity Commission’s report into IP was released. In its final report, the Productivity Commission recommended the government “strengthen the governance and transparency arrangements for collecting societies”. As deputy chair Karen Chester said in her speech to the ADA earlier this year, “at the end of the day, and as a de minimis, you need to be able to follow the money. And we couldn’t and nor could rights holders or rights users.” The best estimates available to me, given the current lack of transparency, suggest that the authors might be receiving mere cents on the dollar.

The government supported the commission’s recommendation and has announced an immediate review. Submissions, by the way, are due on September 15. If you have any thoughts on the governance and transparency of Australia’s collecting societies — and, if you’re an author, on whether Chris Pash is a person you want representing your interests — now’s the time to make your voice heard.

* Dr Rebecca Giblin is an Associate Professor within the Monash University Law Faculty. She is the sole Chief Investigator on the ARC Future Fellowship ‘Reclaiming copyright’s lost cultural value for authors and the public’ and lead Chief Investigator on the ARC Linkage Project ‘Legal and social dynamics of ebook lending in Australia’s public libraries’. She tweets via @rgibli, and volunteers her time as an independent copyright expert on the Board of the Australian Digital Alliance.

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