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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 18, 2016


Former Foxtel chief executive Kim Williams claims that the Productivity Commission’s report on copyright could spell the death of Australia’s film, music, book and television industries. But there is little to no evidence that is the case.

As Productivity Commission commissioner Karen Chester told Crikey in April, the PC believes that Australia’s copyright system, over time, has swung too far in favour of “some vocal rights holders and some influential exporting IP nations, and it has lost sight of the users”.

The Productivity Commission’s draft report, released in April, is an attempt to swing the pendulum back.

This is “patent nonsense”, according to Williams, who now heads up the Australian Copyright Agency. He says there is no evidence copyrighted works are more expensive in Australia than elsewhere — although Choice does have evidence Australians paid about 50% more for digital content than elsewhere in the world when the dollar was closer to parity.

In a speech to the Melbourne Press Club on Wednesday, Williams said the Productivity Commission’s draft report was “ill-considered”, “poorly argued”, “unusually slanted” and “lopsided”.

Copyright holders such as those Williams’ organisation represents have many issues with the report’s suggestions to improve copyright in Australia, chief among them the proposal to introduce a fair use rule into the Copyright Act.

The Productivity Commission is one of many government agencies to recommend the government adopt a new fair-use standard, similar to that in the US, to make use of copyright works for adaptation, online services, news reporting and in schools much easier.

Williams has been critical of the proposal, relying on a PricewaterhouseCoopers report commissioned by the Copyright Agency that found fair use could cost Australia’s GDP more than $1 billion.

But the Productivity Commission examined the claims made by PwC in its draft report and thoroughly debunked many of them. The $1 billion GDP impact is based on a cost-benefit analysis that the PC said was “methodologically flawed”:

“It concentrated on potential impacts on publishing, ignoring the fact that fair use would apply to all of the copyright industries. The cost benefit analysis also implicitly assumes a closed economy model where transfers represent a redistribution of welfare between consumers and producers without a change in overall welfare.”

Williams also claimed that the introduction of fair use in Canada led to a 98% reduction in licensing fees to schools and universities. The PC said in its draft report that there is debate over the extent to which all declines in the Canadian publishing sector can be blamed on changes to the copyright act, including the shift to digital textbooks, the sales of second-hand textbooks, and the use of open education resources.

The Productivity Commission also said that there are significant differences between the Canadian and Australian markets, including the fact that Canada is adjacent to the world’s largest English-speaking publishing market that could supply goods easily to Canada. The PC has said that where fair use has been introduced, such as the US and Israel, innovation has flourished.

In response to Williams’ assertions, in a series of tweets this morning, intellectual property academic Rebecca Giblin listed several examples where a lack of fair use in Australia was restricting what educational institutions could do. For example, a lecturer who wants to use a clip from Breaking Bad in a lecture currently has to seek permission from the studio. If fair use were in place, with an exception for educational uses, permission would not be required.

Williams also takes issue with the PC’s position that the ideal copyright term is between 15 and 25 years after the creation of the work. Australia has signed up to international treaties (with the US) that have forced our copyright term for works to be extended to 70 years after the death of the author. For example, it will be 2086 before Starman enters the public domain.

Williams said a copyright term of between 15 and 25 years would be akin to confiscating superannuation from people when they turn 50:

“Most would call that a form of theft, wouldn’t they? Not only is it unfair but it makes it much harder to support and nurture the next generation of stars and Aussie icons — the Jimmy Barneses, Peter Sculthorpes, Patrick Whites and Mad Maxes of the future.”

Williams instead advocated for a “progressive, sensible, and responsible evolution” to copyright changes, driven on principles of doing no harm and respecting creators. If the government adopts the PC’s draft recommendations, Williams predicts a backlash.

“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.”

Williams estimates that the average writer makes just $13,000 a year from his or her writing, and that loosening copyright restrictions will make it even tougher for writers.

But how much the Copyright Agency actually pays Australian writers remains unclear, as it does not disclose how much it pays directly to Australian authors. The Copyright Advisory Group to COAG said in its response to the draft report that the $700 million per year paid by schools on direct purchase would not be greatly affected by fair use, and that the licensing scheme the Copyright Agency oversees actually tends to benefit overseas authors more than Australian authors.

The commission’s final report will be handed to the government in September.


Jun 8, 2016


The Greens appear to be backing away from previously strong policy to introduce a “fair use” exception into copyright law as the party seeks to woo votes in the arts sector.

Many lobby groups in the arts industry have been campaigning against changes to copyright law proposed in the Productivity Commission’s recent draft report on Australia’s intellectual property framework. Most of the heat has been focused on a recommendation, following on from the Harper report, that the government remove parallel import restrictions on books.

But some of the complaints have been around the recommendation that the government introduce a fair use exception into copyright law to replace the outdated “fair deal” exceptions, which require most of those who want to use copyrighted material to seek permission first. Fair use would allow copyrighted material to be adapted and used for a variety of purposes.

Those opposed to the change claim it would lead to massive litigation and fear for artists who seek to protect their works. The Productivity Commission addressed many of their concerns in the report, but it remains a point of contention for the industry.

Calls for fair use are not new. In fact, the Greens introduced a bill for fair use into Parliament in 2013 to, as Greens Senator Scott Ludlam said at the time, “remove discrimination to the visually impaired, protect Australia’s libraries, digital innovators and education institutions, prevent Australians paying higher prices for software, games and music and to adopt the US fair use model which allows the law to respond to new technology that was not, or could not, be foreseen by parliamentarians”.

But it appears the Greens have backed away from this policy. Greens arts spokesperson Adam Bandt told an audience of arts sector members at the Wheeler Centre in Melbourne on Wednesday that the Greens were not in favour of the US fair use model.

“I think this is something we have to get out in front of so it doesn’t become the subject of litigation, and the real question has to be: how do we ensure people are fairly remunerated? For me it is a question of fair pay rather than fair use,” he said.

“If that’s our question, then we can approach the subsidiary questions of how we deal with digitisation, the fact that people’s works can be reproduced easily. Work out whether we need changes to our existing laws to forestall the kind of litigation we’ve seen overseas, but I would urge … I think there’s two camps developing here. One that’s just unequivocally pro-US style approach, pro-fair use, and another that is saying, ‘we’ve just got to maintain existing settings and everything will be fine. If only we prosecuted more people for breaches of copyright it would be fine.'”

Bandt said Australia needed to work out how to “get in front of that” because “otherwise Google is going to win, and I want to make sure that Google doesn’t win, the artists win”.

Crikey sought additional comment from Bandt’s office but received no response. On Twitter, however, the MP for Melbourne pointed to policy that stated there needed to be greater engagement with stakeholders before any changes were made to copyright.

Neither Communications and Arts Minister Mitch Fifield nor opposition arts spokesman Mark Dreyfus addressed the matter of fair use. Dreyfus said that Labor would “treat with tremendous caution” any proposed abandonment of parallel import restrictions on books, while Fifield just again reiterated that the government would not reduce the current copyright term.


May 26, 2016


Even bringing up the debate that perhaps copyright terms might be a tad too long in Australia was enough to send copyright maximalists into a spin this week, forcing Communications Minister Mitch Fifield to correct the record.

In the Productivity Commission’s report on the state of Australia’s intellectual property system, released in April, the commission noted that the ideal length of time for a piece of content to remain in copyright would be between 15 and 25 years after its creation, rather than the “author’s life plus 70 years” term we have in Australia today, thanks largely to Disney via the US Free Trade Agreement. But in its report, the commission made clear that this view was a “finding”, rather than a specific recommendation, because, as Crikey reported at the time, Australia’s hands were largely tied in terms of copyright because of international trade agreements.

It didn’t take long for the Productivity Commission’s prediction of the Chicken Little response from copyright holders to come true. Well-respected authors such as Richard Flanagan accused the government of trying to take royalty money away from them. Author Jackie French said that the report was “economically rubbish” and “morally indefensible”:

“Innocently, I had assumed that the royalties from these books would continue to support my husband and myself in our old age. Now, in my sixties, I have been told by the ill-named ‘Productivity Commission’ that ‘Writers rarely write for financial reasons,’ and I may only own my work for 15 years.”

This was the sideshow to the bigger fight copyright owners are having, which is preventing a fair use exception — which would allow copyrighted material to be adapted and used for a variety of purposes — from being introduced into Australian copyright law. This would replace the outdated fair deal exceptions, which require most of those who want to use copyrighted material to seek permission first. The Productivity Commission recommended fair use be implemented, as fair deal limits much of what people can do in Australia today.

“Where [fair use] is alive and well in the US and Israel, innovation and creativity fosters, and from our perspective, it doesn’t really undermine the commercial rights of the actual rights holders themselves,” Productivity Commissioner Karen Chester told Crikey last month.

Many copyright defenders, including Foxtel and Kim Williams, pointed to a PwC report released in February that claimed that a fair use exception would reduce Australia’s GDP by $1 billion and force rights holders to take up court cases to protect their content. Williams said:

“‘Fair use’ is an American legal principle which would allow large enterprises to use copyright material for free, which, under Australian law, they currently have to pay for. PwC recently estimated that introducing ‘fair use’ in Australia could result in a loss of GDP of more than $1 billion.”

The problem was, the Productivity Commission pre-empted this in its report by reviewing PwC’s findings and finding them wanting. It found the report had assumed current copyright settings were optimal, and conflated fair use with third-party use, and assumed that one could easily compare the Canadian situation on copyright with Australia’s. Most importantly, the cost-benefit analysis used to derive the $1 billion figure was flawed:

“It concentrated on potential impacts on publishing, ignoring the fact that fair use would apply to all of the copyright industries. The cost benefit analysis also implicitly assumes a closed economy model where transfers represent a redistribution of welfare between consumers and producers without a change in overall welfare. However, as a large net importer of copyright material, transfers from Australian consumers to foreign producers do affect community welfare.”

Their criticisms of the PwC report were conveniently ignored by those arguing against fair use, who all continued to cite the PwC report as evidence that the sky would fall in should fair use be implemented in Australia.

Nevertheless, the government has felt the pressure. In a press release this week, Fifield put out a statement categorically ruling out changing Australia’s copyright term:

“This is not something the Government has considered, proposed or intends to do.”

Despite a concerted campaign from rights holders against fair use, Fifield hasn’t, however, ruled out potentially bringing in fair use changes after the election.

“The Turnbull Government is committed to ensuring that the intellectual property system provides appropriate incentives for innovation and the production of creative works. We also need a system that does not unreasonably impede further innovation, competition, investment and access to goods and services.”

Legislation to “simplify the protections” for copyright owners would be introduced at the start of the next term of Parliament, Fifield said. This is largely for the non-controversial “safe harbour” changes to make it easier for libraries to preserve copyright material.

Media briefs

Feb 11, 2015


First on … where? When a woman was shot by police after reportedly threatening them with a knife in West Hoxton in Sydney’s south-west yesterday, Channel Seven sprung into action, and managed to secure a photo of the woman outside the Hungry Jack’s outlet holding said knife.

The image led Channel Seven’s news, but it also led everyone else’s. Insiders at the leading network were baffled at the treatment given to the image. Channel Nine was the first to repurpose it, cropping it and blurring it to remove the blaring Seven watermark (see first image for a still from Seven’s news, second image from Nine’s news — note the small “Pic: CH 7” in the corner below Nine’s logo). But then, not to be outdone, Channel Ten did the same thing, cropping the image still further to remove the Channel Nine logo.

Crikey understands Seven will probably be inquiring into how the photo ended up on first Nine then Ten, but Channels Nine and Ten will probably be protected under the Fair Use clause of the Copyright Act. Repurposing images that first air on a rival network has a long and infamous history — this is unlikely to be the last time this happens. It’s dog-eat-dog in the 6pm news battle, between ratings leader Nine and former leader, Seven, with Ten sniping away at 5.30pm under former Nine and Seven News and current affairs boss, Peter Meakin — a strong defender of fair dealing of other network’s vision.

Channels Nine and Ten were contacted for comment. It’s worth noting the image is on the front page of The Sydney Morning Herald today — with a credit to Seven News. — Myriam Robin

Continue reading “Media briefs: First on … where? … Domain becomes MMP … a scalp for Speers …”


Aug 4, 2009