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Aug 30, 2017


It’s time to check back in with Crikey’s favourite cartel, Big Copyright. Long-time readers will recall the fun we use to have with reports by various consultants commissioned by the copyright lobby to explain how much money the movie industry was losing to file sharing, and how urgent it was that governments intervene to censor the internet.

It worked, at least in Australia — there’s now an internet censorship regime that prevents you from accessing sites like The Pirate Bay — although it primarily seems to work to remind file sharers to make sure they turn their VPNs on before they start torrenting, since they can’t access the site otherwise. That Copyright Cartel companies like Village Roadshow give massive donations to both sides of politics ensures a docile legislature for such censorship.

Of course, the threat isn’t over. Village Roadshow’s lobbyist-in-chief Graham Burke blamed the Ten Nework being placed into administration on file sharing, telling that unfortunate misplacer of zeroesThe Australian’s Derwood Davidson, that file sharing had cost the network “hundreds of millions of dollars”.

We’re used to wild claims about how file sharing would destroy industries. File sharing would destroy all cultural industries, we were warned in 2011, and again in 2014. In 2014, Australia’s greatest director George Miller warned file sharing would destroy cinema and put Australia movie industry workers out of a job. Cinema is under attack, shrieked The New York Times last year. Burke went further in 2016 and said file sharing would destroy the Australian way of life. “The potential for havoc to our way of life is frightening,” the veteran copyright lobbyist said. “As for Australian feature film production … simply stated, there will be none. Already a number of companies and individuals have been put out of business.”

So let’s run the ruler over these claims.

Has file sharing destroyed the movie industry? According to the Motion Picture Association of America — long one of the foremost campaigners against file sharing — “in 2016, the global box office for all films released in each country around the world reached $38.6 billion, up one percent from 2015”.  That was a record return for films. In North America, the box office grew 2% to reach a new all-time record. Similarly, 2015 had been a new record globally and in the US, too. And 2014 had been a new record globally, though not in the US. In fact, every year since at least 2006 (as far back as MPAA reports go), global box office has broken new records, and most years North American box office has broken new records. Revenue has grown significantly faster than inflation since 2006.

So cinema remains strangely undestroyed. 

But what about in Australia? After all, as Burke says, we’re the worst file sharers in the world. Surely the box office in Australia has underperformed because of file sharing? Well, Australian cinemas had a record year for revenue in 2015, and then another record year again in 2016. In fact revenue has hit new records most years since 2000.

No evidence of destruction there, either. But what about employment in Australia’s motion picture industry? Surely that’s been hammered by all that lost revenue due to downloading? According to Australian Bureau of Statistics data on employment in the industry sub-division Motion Picture and Video Activities, which involves production, distribution and exhibition, in 2016 the industry averaged employment of 31,270 — just down on the 2015 level of 32,400, but the second highest ever. Indeed, a decade ago, the Australian industry employed just over 25,000 on average. When George Lucas was making the Star Wars films in Sydney, the industry employed just under 27,000 people. It now employs significantly more than that.

But maybe production of Australian feature films has been destroyed and we only help make Hollywood extravaganzas? According to Screen Australia data, since 2010, the average number of Australian features produced annually has been 33 — which is above the level of any decade going back to 1970. And there are currently 35 major international and Australian features in production in Australia.

Turns out, all those predictions of the imminent destruction of the movies were about as accurate as those rubbish reports on piracy the Copyright Cartel used to churn out.


Aug 28, 2017


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.


Aug 16, 2017


 The Copyright Agency Ltd, in all its “wisdom,” has published what it terms a non-exclusive, non-transferable licence for content from Fairfax Media, Bauer Media, News Corporation, West Australian Newspapers, Elliot Newspaper Group, Pacific Magazines, Torch Publishing and Border Watch Pty Ltd.

Acting as an agent for these publishers, CAL has created what it describes as a “free open licence” for newspaper content.

But how free and open is CAL’s “free and open” licence, really? Well, according to CAL’s licence, you can quote 20 words from any of the aforementioned outlets’ publications, as long as it’s not for advertising or commercial gain, for media monitoring or analysis, or in a publicly available publication.

So basically, if you’re a content aggregator getting paid for scraping social media or a journalist, you’re instantly in breach of CAL’s licence if you quote those outlets at all.

The licence grants permission to tweet or post the headlines from up to any five articles from those listed outlets in your personal blog, with a link back to the publisher — just so long as you’re not making money off it.

Advertising on your blog or running a crowdfunder online to fund yourself? A breach of CAL’s licence again.

According to CAL’s licence, you can also reproduce up to five articles from the outlet’s listed in CAL’s licence from any single edition in a family history book — so long as the book isn’t commercially available.

The licence doesn’t apply to the use of pictures, graphic designs and illustrations accompanying articles — according to CAL, for that you have to negotiate a separate licence.

Which doesn’t seem very free and open at all, to be honest.

Ellen Broad, associate of the Open Data Institute Australia Network, points out “’open” is a technical term. “An ‘open’ licence is one which allows someone to access, use, modify and share content, data, code for any purpose — commercial or non-commercial. This is a distortion of what ‘open’ means.”

According to Open Knowledge International, “open means anyone can freely access, use, modify, and share for any purpose (subject, at most, to requirements that preserve provenance and openness)”. 

“Open data and content can be freely used, modified, and shared by anyone for any purpose.”

Basically, an open licence gives people permission to access, reuse and redistribute content with little or no limits. But CAL’s licence sets up numerous limitations.

Indeed, CAL’s licence does not appear to meet the definition of an “open licence” as per international standards set by Open Knowledge International, which defines an open licence as a licence that doesn’t restrict any party from “selling or giving away the work either on its own or as part of a package made from works from many different sources”.

So, should you bother worrying about CAL’s licence if you’re a journalist, media monitor or content aggregator, a blogger or a family historian?

“You do not need permission to quote headlines or post links to news articles”, says associate professor Nicolas Suzor from the QUT School of Law. “This is a disingenuous attempt to impose restrictions on how people talk about news.”

Associate professor Rebecca Giblin from the Monash University Law Faculty wryly suggests CAL’s licence is “a bit like coming home to find a squatter in residence, who then generously says you can stay as well. In some key regards, the licence is purporting to grant the public permission to do what they are already entitled to do.”

The licence also raises the questions: how does CAL plan to enforce their license? Police the entire internet?

It’s almost as if Australia needs fair use laws — which by the way, became law in 1978 in the United States of America. As the Australian Law Reform Commission points out, “fair use is not a radical exception. It largely codifies the common law.”

Of course, CAL doesn’t support enshrining fair use into law at this time.

So, where to from here?

Perhaps it would just be easier to simply ignore content from the outlets that signed up to CAL’s licence, and avoid quoting, retweeting, reposting, blogging about and sharing their content at all.


Aug 3, 2017


The diary of Communications Minister Mitch Fifield’s first three months in office show lots of meetings with the major media companies as he came to grips with his new role, but none with any consumer groups or those with a differing view on copyright.

He first met multiple times with representatives from ABC and SBS in September, and then in early October held a raft of meetings with the media industry, including with Foxtel, Win, Prime, Southern Cross, Nine, Fairfax and News. In late October he met with Village Roadshow’s co-CEO (most likely Graham Burke). Village Roadshow is the biggest advocate for stringent laws against copyright infringers, and the beneficiary of government grants for film development in Australia.

[Fifield’s diary reveals mad scramble to fix Brandis’ arts cock-up]

While Fifield likely met the CEOs and executives from a range of media companies to discuss a variety of issues, including the most pressing issue media companies complain about — ownership restrictions — what’s notable is the absence of any meeting in his first three months in office with consumer groups, tech companies or groups such as Australian Digital Alliance, which have views differing on copyright law in Australia to the major media corporations.

Before Fifield took over responsibility for copyright law from Attorney-General George Brandis, there had been a full suite of copyright reform planned by the government for 2016, but this was abandoned. Gone too was hardline talk from the government in cracking down on copyright infringement, and plans to implement a code with ISPs for users caught illicitly downloading TV shows or films has not returned since. One of Fifield’s first pieces of copyright legislation (mainly to allow libraries to make copies of books in a format for visually impaired readers) originally included a controversial reform to protect companies like Google and others from being liable for what their users upload to their services. It’s law of the land in the US, but it sits in a legally grey area in Australia. There was significant lobbying from Australian copyright lobby groups, a campaign waged in the pages of The Australian and the government withdrew that part of the legislation to allow for more consultation.

[Fifield’s diary revealed: minister preferenced China telco before big local players]

Media reform legislation that would remove the two-out-of-three rule for media ownership and the 75% reach rule has passed the House of Representatives but has yet to be debated in the Senate. It is unclear at this stage whether the government has the numbers to pass the bill, and the government and the media companies have been lobbying Labor and the Senate crossbench to support the change. 

Fifield’s diary summary for his first three months as minister, provided to Crikey, can be found here.


Jun 14, 2017


In Media Files today, Fairfax is facing a defamation case in Sydney from the CEO of Sports Marketing and Management, the company that manages Olympic branding rights in Australia, and The Australian media columnist Mark Day has called it a day.

Fairfax faces defamation case. Fairfax was facing court this morning in Sydney with a defamation suit over an article written by business editor Mark Hawthorne about Olympics boss John Coates, and his relationship to the company that manages Olympic brand rights in Australia. The article, published in The Sydney Morning Herald in April, alleged that the company, Sports Marketing and Management, had close ties to Coates. The CEO Mark Bushell has lodged the action. The matter had its first case management hearing in the Federal Court in Sydney this morning.

Gone fishin’. The Australian‘s long-running media columnist and veteran journalist Mark Day’s last weekly column in the paper’s media section ran on Monday, offering some sage advice for young journalists:

“Enjoy it. Love it. Be curious, be sceptical, be brave — but remember, its not all about you. Your job is to report the world, not to make it spin around you.”

And while Day will still contribute with columns on media and military history from time to time, he’s already enjoying his retirement. He told Crikey via email he’d gone off the grid to go fishing in the Kimberley for a week, where he caught this Blue Bastard (aka Painted Sweetlip), which he said was very rare in the waters around Kuri Bay.

Revolving doors. Also moving on, BuzzFeed Australia political editor Mark Di Stefano has confirmed he’s leaving his job (which is now open) to move to London with his fiancee. Di Stefano has been in the role for three years, is formerly of the ABC and is a regular commentator.

Writers reject copyright reform. Some of Australia’s leading script writers have signed a rejection of the Productivity Commission’s recommendations on copyright. The report was released in December, which found that copyright laws were skewed too far in favour of copyright holders, “to the detriment of consumers and intermediate owners”. One of the key recommendations was to introduce a fair use exemption to copyright laws.

The Copyright Agency has been critical of the report, and issued the statement yesterday, which was signed by writers including some that worked on Animal Kingdom, Strictly Ballroom, Underbelly, Offspring, Muriel’s Wedding:

“Australian writers have a right to receive fair payment for their work and to work in a thriving industry with the ability to invest in the Australian story-telling that entertains millions of people each week on stage and on screen. The changes to Australian copyright laws being pushed by the Productivity Commission, large organisations and big technology companies will threaten our jobs, the jobs of future writers, and the livelihood of our industry.”

They used the statement to ask the Parliament to rule out the recommended changes.

Hundreds of jobs go at Time. Time Inc has slashed 300 jobs in a cost-cutting drive. The company, which publishes Time, People and Sports Illustrated, will lose about 4% of its workforce under the restructure, according to the Financial Times. The company was going to sell earlier this year, before backtracking, and CEO Rich Battista told MarketWatch the company was “re-engineering our entire cost structure”. “We’re trying to be as nimble and efficient as possible, and get this process moving,” he said.

Glenn Dyer’s TV Ratings. It was Seven’s night easily in the metros and regions. Nine did poorly and Ten did OK thanks to a solid night for Masterchef (1.25 million nationally). Seven’s First Dates (790,000 nationally) and Nine’s Love Child (784,000 nationally) were very weak, verging on flop territory. Seven’s House Rules was a bit of program spakfilla with the “top 10 reveals” — it was designed to milk the audience and it worked, with 1.24 million viewers nationally.

Australia’s 4-zip loss to Brazil last night in a soccer “friendly” was watched by 460,000 people on Nine Gem (317,000 nationally) and Fox Sports (143,000).

In the regions Seven News ruled again with 736,000 viewers, while Seven News/Today Tonight with 567,000 was second, followed by Home and Away with 537,000, The 5.30pm bit of The Chase was fourth with 490,000 and House Rules was fifth with 477,000. — Read the rest on the Crikey website


Mar 29, 2017


News Corp and its pay television company Foxtel have both suggested that Google should be forced to censor websites deemed to host copyright-infringing content — similar to the court orders put on internet service providers.

In 2015, the federal government passed laws that allow film, television, and music companies to go to court, in order to force Telstra, Optus and other internet service providers to block people’s access to piracy websites offering their content for free.

Village Roadshow is currently before the court, attempting to block over 40 websites it says constitute around 90% of the piracy sites visited by Australians. Foxtel has suggested to the government that Google, Facebook, and other online services, should also be required to block access to such sites if controversial safe harbour copyright exceptions — which basically protect service providers from secondary liability in piracy cases — were extended to these services.

The government was planning on extending safe harbour protections for libraries, educational institutions, cloud providers, and online services like Google and Facebook, as part of legislation introduced in the Parliament this week — but, at the last minute, the safe harbour amendment was dropped, with Communications Minister Mitch Fifield saying the government needed to hold more consultation on the matter.

This left some in the industry scratching their heads, as there have been no fewer than seven consultations on the issue of safe harbour over the past few years. But following the publication of submissions on the exposure draft of the legislation, it became clear that content owners had been concerned about the government including this in the legislation. News Corp Australia said what would be defined as a service provider would be so broad that even piracy sites would be protected. Foxtel said it was “very surprised to see” the proposal.

“No explanation has been provided as to the reasons for this change.”

Both News Corp and Foxtel said that, if the government were to embark on this change, site-blocking laws should also apply to the likes of Google, Twitter, and other online services.

“If service providers are to have the benefit of safe harbour, then section 115A should be similarly extended, such that rights holders are able to seek orders requiring service providers to block access to websites hosted overseas which have the primary purpose of infringing copyright,” Foxtel’s chief general counsel, Lynette Ireland, said in the submission.

“We question why it is not proposed, that these too be extended to service providers,” News Corp said in its submission.

Google already complies with Digital Millennium Copyright Act (DCMA) notices to remove piracy sites from its search results, and it is unclear how such a regime would operate, given the method of blocking websites developed by the court to date is very specific to the operation of ISPs.

The government appears to have a big fight ahead on safe harbour should it decide to proceed. Music Rights Australia said that there was no evidence to support the reforms, and questioned why the government would embark on such a change when the US and Europe are both reviewing their safe harbour schemes (which the government seeks to bring Australia in line with).

The call for safe harbour has mostly emerged from tech companies, including Google. In their submission, Google said that, while tech companies are offered safe harbour protections in the US and elsewhere, they have no protection in Australia — which places Australian companies at a “serious commercial disadvantage” compared to global competitors and Australian-based ISPs. In August last year, 25 organisations, including Redbubble — currently involved in a lawsuit over content hosted on its website — eBay, Microsoft, Twitter, and Envato, wrote to Fifield asking for the safe harbour extensions to encourage innovation and increase legal certainty for the companies.

Since the removal of safe harbour extensions from the Copyright Act amendment legislation, it is now considered “non-controversial” legislation that will pass through Parliament uncontested, even though the government has said it will consult more on safe harbour.

The legislation passed through the House of Representatives on Tuesday. Labor’s shadow minister for the digital economy, Ed Husic, accused the government of being “friends with Hells Angels” for siding with the motorcycle gang over RedBubble in a copyright dispute  similar to that which the company is now engaged in with Pokemon:

“You are aiding and abetting the Hells Angels in squeezing out an Australian firm from our local environment, because you did not provide safe-harbour reform. The Hells Angels complained to Redbubble about an image used on their site, and Redbubble took it down. That normally would be the end of the story. In the US context the Hells Angels would not have a leg to stand on. But, they shopped around and realised that with some of the toughest copyright laws right here, they could sue Redbubble — even though Redbubble as a platform, as a marketplace, took the action.”

The minister representing Fifield in the House of Reps, Paul Fletcher, said there would not be another inquiry into safe harbour, but a consultation by government.

Village Roadshow’s case to block over 40 websites including new versions of previously-blocked sites like The Pirate Bay, is expected to be resolved by the Federal Court quickly in early May.


Mar 17, 2017


Why is The Australian campaigning against safe habour changes to the Copyright Act? 

In at least five articles from The Australian this week about how bad an idea it is, a campaign is being run to stop changes that would clarify what online services can and can’t do with copyright works in Australia.

“Rather than respecting others’ copyrights, as law-abiding, non-monopolist companies do, Google is asking Australia to pardon its past and future copyright kleptomania to deny forever others’ normal right to their day in court,” today’s opinion piece from noted anti-Google writer and competitor Scott Cleland reads.

Let’s check it for fingerprints: 

Who benefits? News Corp, of course. The company’s director of corporate affairs Campbell Reid is quoted in one of Darren Davidson’s first articles, as being opposed to the proposal.

Who loses? Online services, educational institutions, and copyright reform. Under the current Copyright Act, carriage service providers — subject to meeting several strict conditions like removing repeat copyright infringers, and removing content when informed it is infringing — are exempt from liability for copyright infringement. In legislation expected to be introduced in the next sitting fortnight, the federal government will expand this safe harbour to cover educational institutions, online search engines like Google, and cloud storage services. It would mean more certainties for these companies that cloud services based in Australia are not in breach of copyright law for their activities. Facebook and Google currently get similar safe harbour exemptions for operating in the US. 

Connections: Google is being painted as the bad guy, despite the fact that many other companies and universities are seeking clarity on safe harbour law, at least to bring it into line with laws in other countries. The current line of attack is that the issue hasn’t been widely discussed. To the contrary, in addition to the Department of Communications consulting on the exposure draft of this legislation, Policy Australia has highlighted at least six other times since 2005 that the government has conducted reviews into expanding safe harbour. There will now also be yet another inquiry into it when the legislation is introduced

Conclusion: While on the one hand, News Corp is keen to push media reform, it can’t let Google or Facebook get one over on the communications minister as it battles for all the online ad revenue it can get.

Comments & corrections

Aug 30, 2016


On copyright and the vision impaired

CEO Copyright Agency Adam Suckling writes: Re. “First group new parliament disappoints: the blind” (yesterday).  I write in response to Josh Taylor’s piece in Crikey on the parliamentary amendments to make it easier for the visually impaired to access published books.

Organisations representing Australian arts, literature, screen and content industries support amending the Copyright Act to make it easier for disabled people to access published books, simplify the statutory licence for education and make changes that will benefit libraries. These amendments continue Australia’s role as a leader in introducing access to material for people with disabilities. Indeed, Australia has already ratified the international treaty for the visually impaired and has had access provisions for people with disabilities in place for over 35 years.

The approach used to arrive at these amendments, where diverse stakeholders agreed on a way forward within a framework set by the government, provides a model for reforming the Copyright Act. The agreed approach ensures that Australians have access to material across a wide range of platforms, while also ensuring that Australian creators are remunerated fairly.

But the highly controversial “Safe Harbour” provisions should be dropped from the legislation at this time. These provisions  will seriously weaken copyright protections for our creative community  and are strongly opposed by major content creators. The government should remove this contentious schedule and proceed with the amendments in the current Bill that would benefit the visually impaired.

On the plebiscite

Peter Matters writes: Re. “Why the govt needs legislation to hold marriage plebiscite” (yesterday). If an MHR submits a private member’s bill to provide universal marriage rights and the majority of the House agrees to proceed with it, it will be passed in both the House and the Senate. Gay people deservedly will have their dream come true, the taxpayers will have a large amount of extra money to use on desperately urgent education and health improvements and both House and Senate will have the bill they wanted. Last but not least, Malcolm and Bill will have discovered an obvious method to proceed with a large number of bills the majority of the of members — other than the Coalition troglodytes — agree on.

The reactionaries may scream their heads off in vain, but their real impotence will be publicly exposed and Parliament will function as it should – not as a bunch of schoolboys brawling behind the shelter shed – but as a civilised forum where members can reach agreement to the benefit of our country.


Aug 29, 2016


The government has delayed legislation that had been due to be introduced in the spring sitting to make it easier for visually impaired to access books.

In December, Communications Minister Mitch Fifield announced changes to Australian copyright law that are required as part of the Marrakesh Treaty, a treaty Australia and more than 50 other nations signed in 2013 to allow copies of works to be made in a more accessible format. Just 5% of books in Australia are accessible to blind and vision-impaired people. Once the changes are made, publishers could import or sell books translated into braille from overseas, giving Australians access to millions more titles.

An exposure draft of the legislation released last year included not only this change, but also archiving and licensing changes for libraries and educational institutions, and a safe harbour protection to indemnify search engines, universities and libraries for their users’ copyright infringement.

The legislation never made it through the last Parliament and was expected to be introduced in the first few weeks of the 45th Parliament, ahead of the treaty coming into force at the end of September. But the legislation wasn’t included in the government’s draft legislative agenda for the spring sitting weeks, and the government has insisted that the changes are not essential in order to comply with the treaty.

“Australia already complies with the Marrakesh Treaty. The bill and other regulation changes will further enhance access to copyright works for people with disabilities,” a spokesperson for Fifield told Crikey in a statement. “The government will introduce the bill at the earliest opportunity. ”

Vision Australia, the largest provider for people who are blind or have low vision, is understandably frustrated with the delay. Policy adviser Bruce Maguire told Crikey the organisation was “very disappointed” by the delay.

“Australia had been among the first countries to ratify the treaty in December last year. Nine months later, they not only haven’t implemented it, but it looks like they won’t be implementing it any time soon, which is a great disappointment for us, a great disappointment for people who are blind or have other print disabilities, and I think a great disappointment for the parliament,” he said.

“Passing this legislation now would have been a great example of how the new parliament with its new make-up could work for all Australians. The first opportunity, they’ve shown that they can’t.”

Crikey has heard from multiple sources that the delay might not be related to the Marrakesh changes. According to sources, there has been some controversy over the safe harbour provisions in the legislation, and a push back from the copyright lobby groups against these provisions. This has been notable in the lobby’s recent strong pushback against fair use proposals put forward by the Productivity Commission. The Department of Communications has not published the submissions to the draft legislation to indicate the views on the proposed safe harbour changes.

The Australian Copyright Council submission is public, however, and the organisation expressed strong support for the Marrakesh Treaty, and changing regulations to accommodate the implementation of the treaty. In a separate submission, the Australian Copyright Agency said that it did not support extending safe harbour as proposed in the legislation.

Comments & corrections

Aug 19, 2016


On copyright

Niall Clugston writes: Re. “Kim Williams’ dystopian nightmate of the future of copyright” (yesterday). Crikey’s barrack-room lawyer, Josh Taylor, is at it again. Now he’s supporting the extremist agenda of the Productivity Commission.

The Berne Convention of 1886 set a global standard of copyright protection for 50 years after the death of the author. Around the turn of this century, the European Union and the USA extended this to 70 years. Australia followed suit. The Productivity Commission’s proposal of 15-25 years after the creation of the work is not “an attempt to swing the pendulum back”. It is swinging a wrecking ball.

People often say that authors and artists get nothing from copyright. This is not true. J R R Tolkien sold the movie and merchandising rights to The Lord of the Rings and The Hobbit to United Artists and retired to a seaside resort. Therefore, he was able to share in the profits from the movies that were made long after his death. This kind of deal would not be possible under the proposal.

John Marsden wrote the book Tomorrow, When the War Began in 1993. The book and its sequels have been made into a movie and a TV series. However, under the proposed rule, the book would be out of copyright or approaching it. Rather than paying the author, a film-maker could save money by waiting a few years.

And if Australia had a short copyright term, while everyone else had 50 or 70 years after the death of the author, what would that make Australia? A pirate island?

CEO Internet Australia Laurie Patton writes: Twice in one week … ? Did he mention that the PC wants an end to geoblocking? This anti-competitive practice has seen Australian consumers relentlessly price-gouged on overseas content for decades. It also helped prop up the profits of Foxtel, which Williams ran for all those years on the mantra of maximising ARPU (average revenue per user)  rather than lowering prices and thereby increasing subscriber numbers. Foxtel never attracted more than 30% of households (very ordinary compared to most other countries) and now stands on a precipice as Netflix eats its lunch and the free-to-air networks deliver more sport on their extra digital channels.