Why the not-for-profit cultural sector needs tailor-made copyright safe harbours



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There are many ways the not-for-profit GLAM sector – public galleries, libraries, archives and museums – could be protected from potential copyright damages claims.
from http://www.shutterstock.com, CC BY-ND

Graeme Austin, Victoria University of Wellington and Emily Hudson, King’s College London

A bill before the Australian Parliament will extend immunities from copyright infringement currently enjoyed by internet service providers (ISPs) to cultural institutions, educational institutions, and organisations assisting people with disabilities.

These immunities are known as “safe harbours”. They can be a useful policy tool. They help ensure that exposure to copyright liability doesn’t inhibit socially or economically useful activity such as developing internet infrastructure.

We argue that copyright issues for not-for-profit organisations differ from those affecting ISPs and their subscribers. Rather than expanding existing safe harbours, policy makers should tailor the concept to the needs of the cultural sector.




Read more:
Instagram is changing the way we experience art, and that’s a good thing


How the existing safe harbours work

Safe harbours have been justified as a quid pro quo to encourage investment in Internet infrastructure. ISPs were concerned that they could themselves be liable for their customers’ copyright infringements. Investment in internet technologies might have been inhibited by the risk of potentially enormous damages claims.

Currently, Australian safe harbours apply only to telecommunications providers such as Telstra and Optus. They shelter ISPs against monetary awards for copyright infringement for actions such as transmission and caching, and storage of infringing material uploaded by subscribers. The immunities don’t apply when the ISP is itself responsible for storing infringing material.

Immunity can also be lost when an ISP fails to meet key conditions, such as removing infringing material once the ISP knows about it.

Fresh thinking on safe habours

At first blush the bill makes sense. The institutions mentioned in the Copyright Amendment (Services Providers) Bill 2017 (Cth) do important work. A not-for-profit running a website that allows the uploading of material suitable for people suffering from visual disabilities, for instance, deserves immunity from copyright damages claims if some of that material turns out to be infringing.

However, the Australian bill should also prompt us to revisit the safe harbour concept itself. A safe harbour reflects a policy that certain activities are sufficiently important that they should not be inhibited by the risk of copyright proceedings. Rather than extending existing safe harbours to other institutions, we should look at how such institutions are currently inhibited by exposure to copyright claims, and how the law might be adapted.

There are many ways we can craft copyright immunities for the not-for-profit GLAM sector: public galleries, libraries, archives and museums. GLAM institutions currently enjoy some exemptions from copyright infringement, and there have been calls for a broader fair use or fair dealing defence.

Specific shelter for GLAM sector

Another possibility would be a safe harbour that is tailor-made for the GLAM sector.

The reforms in the Australian bill would apply only where the infringing activity is undertaken by patrons. But unlike ISPs, GLAM institutions need the greatest protection for the things they do themselves. We value museums, for example, for the expert work of their own curators and collection managers, not because they sometimes allow other people to upload material to their websites.

GLAM organisations use digital technologies in innovative ways. They put their collections online, link to the online collections of other institutions, and create vast repositories of metadata about collection items. Some exhibitions are digitally curated, with links to related objects and information, often located on remote sites. While some GLAM organisations allow third parties to post material to their websites, that’s not their core work.

Anyone working in the GLAM sector will tell you how copyright concerns limit their work. Institutions also fear the reputational damage of allegations that they disregard copyright. But so long as GLAM organisations act responsibly, these valuable contributions to cultural life should not be unduly inhibited by risks of copyright liability.

Striking a balance

Most GLAM sector organisations are responsible about copyright. If GLAM institutions use some material without copyright permissions, this is typically of limited commercial significance – quite unlike the commercially valuable material that is transmitted by ISP subscribers every second.

A fit-for-purpose GLAM safe harbour could encourage responsible behaviour while ensuring that the GLAM sector’s work is less impeded by risks of copyright claims. Unlike the ISP scheme, a GLAM safe harbour would not be limited to patrons’ activities. It might be conditioned on good faith efforts to raise copyright awareness among staff, including regular training. In the digital context, it might have a take down requirement.

The ConversationIn summary, the copyright issues for publicly funded not-for-profits doing valuable social work are not the same as those affecting ISPs and their subscribers. Lumping them together in the same safe harbour avoids more nuanced thinking about their relative social value and the different risks each poses for those who rely on copyright protections for their livelihood.

Graeme Austin, Professor of Law, Victoria University of Wellington and Emily Hudson, Senior Lecturer in Law, King’s College London

This article was originally published on The Conversation. Read the original article.

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How copyright law is holding back Australian creators



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In a new study, various creators described the process of obtaining copyright permission as ‘incredibly stressful’, ‘terrifying’ and ‘a total legal nightmare’.

Kylie Pappalardo, Queensland University of Technology and Karnika Bansal, Queensland University of Technology

Australian creators struggle to understand copyright law and how to manage it for their own projects. Indeed, a new study has found copyright law can act as a deterrent to creation, rather than an incentive for it.

Interviews with 29 Australian creators, including documentary filmmakers, writers, musicians and visual artists, sought to understand how they reuse existing content to create. It considered issues such as whether permission (“licences”) had been sought to reuse copyrighted content; the amount of time and cost involved in obtaining such permissions; and a creator’s recourse if permission was either denied or too expensive to obtain.

For the majority interviewed, seeking permission to reuse copyrighted content – for example, as snippets of music or video in films, or long quotes in written works – was a source of great frustration and confusion. The process was variously described as “incredibly stressful”, “terrifying” and “a total legal nightmare”.

Problems mostly centred on time delays and financial expenses. Creators found that the paperwork required to request permission was often long, complex and not standard across publishers and other rights-holder bodies. Many waited months for a response to a request; some never received one at all. Many reported feeling ignored and disrespected.

One interviewee, a composer, waited over a year for permission to set poetry to music. The music was due to be performed in a theatre production. The original poet was deceased but his publisher controlled the copyright.

After waiting months and not receiving a response, the composer was forced to painstakingly replace the words to the song with new ones that fit the same rhyme scheme, stresses, cadences and meaning as the original poem. This was a long and difficult process. Roughly a year after the play was staged, permission to use the poem came through from the publishers. By then it was too late.

Licence fees were also an issue for the creators interviewed. Licence fees can be expensive, even for very small samples. Many creators thought that copyright fees demanded for reusing small samples were unfair and stifling.

Projects abandoned

A filmmaker making a documentary about a small choir in rural Australia could not afford the licence fees to release the film to the public. To show snippets of songs sung by the choir, totalling less than two minutes of copyrighted music in a 20-minute film, with each snippet only seconds in length, the licence fees came to over $10,000. The project was ultimately abandoned because the filmmaker could not raise the funds to cover the licensing fees.

Faced with costly licence fees, one filmmaker had to abandon the project.
Shutterstock

Avoiding and abandoning projects were common reactions to the restraints imposed by copyright law, although a very small number of creators proceeded anyway, hoping to “fly under the radar”.

Some changed projects to try to circumvent copyright restrictions. For example, filmmakers might degrade the sound on their films for scenes where background music might be playing, such as those filmed in a pub or restaurant.

Ideas were filtered out early at the brainstorming stage because they were “too risky” or licensing would be “too expensive”. Some people avoided entire areas of creativity, such as appropriation art, music sampling or documentaries about music or musicians, because it was all just “too hard”.

Court decisions such as the 2010 “Kookaburra” case have further aggravated the problems. In this case, despite significant elements of original creativity, the Australian band Men at Work were found to have infringed copyright of a 1934 folk song, Kookaburra Sits in the Old Gum Tree.




Read more:
The Down Under book and film remind us our copyright law’s still unfair for artists


This case is a classic example of the gap that exists between law and creative norms. The law’s concern, in that case and others, is with what has been taken from an existing work. Creators, on the other hand, most commonly focus on the elements they have added to the work.

The study also highlights creators’ confusion about the scope and application of Australian copyright law. Creators were especially confused about legal exceptions to copyright infringement. In Australia, these are called “fair dealing” exceptions and they are narrow – they apply only to specified purposes (such as for research and study; parody and satire; reporting the news; and criticism and review).




Read more:
Explainer: what is ‘fair dealing’ and when can you copy without permission?


Creators expressed concern about what, exactly, fell within “parody and satire” or “criticism or review”. What do those terms mean when applied to art? Once participant remarked: “Everybody is out there flying a bit blind about this.”

Other countries, including the United States, South Korea and Sri Lanka, have broader exceptions to copyright infringement, which permit reuse for things such as remix or appropriation art, provided that the use is “fair”. These exceptions are generally called “fair use”. Importantly, these exceptions do not require the use to fall within a predetermined category, like reporting the news. Each use is assessed on its own merits.

Courts apply some basic standards in determining what amounts to “fair use”, which include examining the purpose for which an original work has been used; the extent to which it has been transformed; and the extent to which a new work impacts on the market of the original work.

In recent years, the Australian Law Reform Commission and Productivity Commission’s recommendations that Australia adopt a US-style fair use exception attracted significant criticism from much of Australia’s creative sector. Many considered that such an exception would be too broad and too uncertain. However, the study suggests this criticism may be largely unfounded.

The creators interviewed used their own strong sense of morality and fairness to guide what reuse they considered to be acceptable. These principles and norms align quite closely with the factors that courts use in assessing fair use, including how much new creativity has been added to the existing work and whether the new work commercially impacts the existing work in an unfair way.

The ConversationThis new study suggests that more flexibility in the law might actually help to spur the creation of new Australian work.

Kylie Pappalardo, Lecturer, School of Law, Queensland University of Technology and Karnika Bansal, Research Assistant, Faculty of Law, Queensland University of Technology

This article was originally published on The Conversation. Read the original article.

Latest on the Internet Archive Copyright & Piracy Controversy


The links below are to articles with the latest on the copyright and piracy controversy engulfing the Internet Archive, with a response from the Internet Archive.

For more visit:
https://the-digital-reader.com/2018/01/24/internet-archive-responds-coverage-ebook-piracy-good-works-defense/
http://blog.archive.org/2018/01/24/digital-books-on-archive-org/

Australian tech start-ups stand to lose out in proposed copyright reforms



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YouTube and Facebook are protected from Australia’s copyright laws, since they already operate within the US safe harbours.
from www.shutterstock.com

Kylie Pappalardo, Queensland University of Technology

The Australian government quietly introduced the Copyright Amendment (Service Providers) Bill 2017 to the Senate on Wednesday. If enacted, the bill will extend the scope of Australia’s copyright safe harbours – very slightly.

Safe harbours protect internet hosts and platform providers from monetary liability for copyright-infringing content posted or shared by their users. For example, if you post the latest Thor movie to YouTube, YouTube won’t be responsible for copyright infringement if it takes down that video. In Australia, we only extend this protection to internet services providers, not general purpose websites.

This matters because technology firms rely on limits to liability to manage their risks. Companies like Facebook or YouTube, which host millions of pieces of user content, would face serious difficulty starting in Australia because our laws on copyright infringement are so strict.


Read more: It’s time to future-proof Australia’s copyright laws for the 21st century


The new legislation is a step in the right direction, but it doesn’t go far enough to create an environment that fosters Australian innovation.

Excluding platforms from safe harbours doesn’t make much difference to tech giants like YouTube and Facebook, since they already operate within the United States safe harbours. But it does discourage Australian tech start-ups from the chance to experiment in a reduced-risk environment.

It is not just the US with broader copyright safe harbours than Australia – jurisdictions around the world extend safe harbours to internet intermediaries beyond ISPs.

The European Union, for example, provides that member states must ensure that any hosting provider will not be liable for unlawful content posted by users, provided it acts quickly to remove the content upon notice.

Low hanging fruit

It’s the second time this year that the government has amended Australia’s copyright laws. The first was the Copyright Amendment (Disability Access and Other Measures) Act 2017, passed in June, which provides greater access to copyrighted content for people with disabilities such as vision impairment.

Both measures are low hanging fruit for the government. They improve our existing copyright law, but they don’t advance us far from the status quo.

The government is staying well clear of the more contentious, though far more impactful, potential reforms to the Copyright Act recommended by bodies such as the Australian Law Reform Commission and the Productivity Commission.

What are the copyright safe harbours?

The copyright safe harbours came about as a result of the US Digital Millennium Copyright Act (DMCA) in 1998. The DMCA represented an important bargain struck between the established content industry, such as big film and TV studios, and the burgeoning tech industry.

The content industry got a “notice-and-takedown” regime that required online service providers to remove material that infringes copyright. In exchange, the tech industry got copyright safe harbours.

Under this system, the service provider must quickly and efficiently remove infringing content if they are informed about it by the copyright owner. This notice-and-takedown scheme has become fundamentally important to the way the internet works today.

Why are Australian safe harbours so limited?

In the 2005 Australia-US Free Trade Agreement, Australia agreed to adopt these provisions into Australian domestic law.

But in enacting the copyright safe harbours, parliament made a drafting error. Instead of extending protection to “service providers”, as the US law does, we gave protection to “carriage service providers” as defined in the Telecommunications Act.

Essentially, Australia only gave protection to internet service providers like Telstra, Optus and TPG, and not to platform providers like Whirlpool, RedBubble, YouTube or Facebook. For more than a decade, this has been a critical difference between US and Australian copyright law.

What’s changing?

The new bill appears to close the glaring gap between US and Australian law by replacing the term “carriage service provider” with, simply, “service provider”.

But the bill defines “service provider” to be either a carriage service provider; an organisation assisting persons with a disability; or a body administering a library, archives, cultural institution or educational institution.

It does not extend the safe harbour to those who actually need it the most – Australia’s internet hosts and platform providers.

This is a seriously missed opportunity for Australian innovators. There is a real risk for businesses, both large and small, who want to provide online spaces for people to communicate.


Read more: Australian copyright laws have questionable benefits


Our copyright laws potentially make hosts liable for much of the copyright infringing content that users may upload or share. But it can be prohibitively expensive and time-consuming to pre-screen all content before it is uploaded.

This is one of the reasons why many large social media platforms don’t base their operations in countries like Australia, and why Australian businesses are at a major competitive disadvantage compared to those in other countries.

Why not extend the safe harbour to Australian innovators?

There were early indications that the Australian government intended to extend the safe harbours to all online service providers, but these amendments were shelved.

Entertainment industry groups have been lobbying hard in recent years for measures that go beyond the notice-and-takedown scheme that the safe harbours provide. They want what they call notice-and-staydown: proactive filtering of unlicensed copyright content by service providers.


Read more: Explainer: what is ‘fair dealing’ and when can you copy without permission?


At the same time, copyright owners want higher payments. They use the term “value gap” to describe what they see as the difference between sites like Spotify that pay hefty licence fees to make content available to users and sites like YouTube that do not.

Content owners are no longer happy with the bargain they struck in the DMCA – they allege that sites like YouTube are gaming the system of the safe harbours.

There is a false equivalency at work here. Spotify is not a site for user-generated content and does not purport to be; sites like YouTube have everyday users at their core. If we believe that creative discourse, engagement and play matters then there is a cogent reason why sites that facilitate user-generated content might need some legal latitude.

However, this debate misses a more fundamental point. Limited safe harbour provisions hurt Australian creators and innovators. They increase the risk to innovators developing new technology products and platforms.

The ConversationAnd, importantly, Australian creators miss the opportunity to exercise greater control over their creations through notice-and-takedown mechanisms that are easy to use and far cheaper than copyright lawsuits.

Kylie Pappalardo, Lecturer, School of Law, Queensland University of Technology

This article was originally published on The Conversation. Read the original article.

Explainer: what is ‘fair dealing’ and when can you copy without permission?



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Fair dealing allows Australians to use copyrighted content for news and reporting.
antb/Shutterstock

Nicolas Suzor, Queensland University of Technology

Copyright law sometimes allows you to use someone else’s work – as long as it’s fair. In Australia this is called “fair dealing”, and it’s different to the law in the US, which is called “fair use”.

These exceptions are safety valves in copyright law – they allow lots of beneficial uses that society has agreed copyright owners should not be able to charge for, or worse, prevent.

There’s a serious ongoing debate about whether Australia should update its copyright laws and introduce fair use. The current law is not easy to understand – our research shows that Australian creators are often confused about their rights – and many think we already have fair use.

Fair dealing: What can you do in Australia?

The key difference between “fair use” and “fair dealing” is that Australia’s “fair dealing” laws set out defined categories of acceptable uses. As we will see, “fair use” in the US is much more flexible.

Australian copyright law sets out five situations where use of copyrighted material without permission may be allowed:

  • research or study
  • criticism or review
  • parody or satire
  • reporting the news
  • provision of legal advice.

We’ll explain the first four, as they’re most useful to the average Australian.

Research or study

You do not need permission to copy a reasonable portion of copyrighted material if you are studying it or using it for research. You do not have to be enrolled in school or a university course to rely on the research or study exception.

For example:

  • you can make a copy of a chapter of a book to study it
  • you can print or take screenshots of content you find on the web for your research
  • you can include quotes or extracts of other work when you publish your research.

The main thing to watch out for is how much you copy. It’s fair to photocopy a book chapter but not the whole book.

Criticism or review

It is lawful to use a work without permission in order to critique or review it.

Criticism or review involves making an analysis or judgement of the material or its underlying ideas. It may be expressed in an entertaining way, or with strong opinion, and does not need to be a balanced expression to be fair.

For example, a film critic does not need permission to play a short clip from a film they are reviewing. They may also use film clips from other movies to compare or contrast.

Ozzy Man Reviews runs a popular channel that reviews existing material, relying on the fair dealing exceptions.

It’s also legal to quote an excerpt of a book or song lyrics, or to reference a photograph in another publication as part of a review or critique of the work.

You need to be really critiquing your source material. So, for example, a review video that is really just the highlights of a film or show probably won’t be fair.

This is something that tripped up Channel 10 in its clip show, The Panel. When the panellists discussed and critiqued the clips they showed, it was generally fair dealing. But when they just showed clips that were funny, a court found them liable for copyright infringement.

Reporting the news

You don’t need permission to use existing copyrighted material while reporting on current or historic events. The law is designed to ensure that people can’t use copyright to stifle the flow of information on matters of public interest.

The key issue to check here is whether a work has been used in a way that is necessary to report the news. If the material is just used incidentally, to illustrate a story or provide entertainment, it won’t count as fair dealing.

Parody or satire

It is legal to use another person’s copyrighted material without their permission to make fun of them, or to make fun of another person or issue.

Making something funny is not sufficient to rely on this exception. The use must be part of some commentary (express or implied) on the material or some broader aspect of society.

FriendlyJordies is known for his satirical videos that comment on and criticise politics and everyday life in Australia.

When is a use ‘fair’?

Fair dealing only applies when the use is “fair”.

When assessing fairness in Australia, there are a number of relevant considerations, including:

  • how important copying is to your work (“nature and purpose of the use”)
  • the type of work being copied (less original works may not be protected as strongly as more creative works)
  • whether it is easily possible to get a licence within a reasonable time at an ordinary commercial price
  • the effect of your copying on the potential market for the original
  • the amount taken from the original work
  • whether attribution has been given to the original author.

Generally, a use will be fair if you are copying for a valid reason, you don’t copy more than you need, you give attribution where possible, and your work is not directly competing in the market against the original.

Things to remember:

  • Is copying necessary? Copying has to be necessary for one of the purposes above. This means that it might be fair to copy part of a song to review it, but it won’t be fair if you’re just using the song as background music.
  • Copy no more than you need. Sometimes you need to copy the entirety of an existing work – if you’re critiquing a photograph, for example. Usually, though, you should only copy the parts that are necessary. You can’t get away with showing a whole TV episode in order to critique one scene.
  • It’s usually not fair if you’re competing with the original. This is often the most important factor. When you copy existing material for your own study, to report on the news, or to create a parody, you usually won’t be undercutting the market for the original. But if you’re just repackaging the original material in a way that might substitute for it – a consumer might be satisfied with your work instead of the original – then your use probably won’t be fair.

How is ‘fair use’ different – what can’t you do with fair dealing?

In the United States, the law is more flexible, because it can adapt to allow fair use for purposes that lawmakers hadn’t thought of in advance.

Some of the things that are legal without getting permission in the US but not in Australia include:

Adapting to new technologies: Fair use is flexible enough to adapt to change, but fair dealing is not. For example, in the US, fair use made it legal to use a VCR to record television at home in 1984. In Australia, this wasn’t legal until parliament created a specific exception in 2006 – just about the time VCRs became obsolete.

Artistic use: In Australia, it’s legal to create a parody or a critique, but not to use existing works for purely artistic purposes. For example, Australian law makes it largely unlawful for a collage artist to reuse existing copyright material to create something new.

Machinima uses game environments to create new stories – but is not legal in Australia without permission from the game’s publisher.

Uses that document our experiences: Media forms a big part of our lives, and when we share our daily experiences, we will often include copyright material in some way. Without fair use, even capturing a poster on a wall behind you when you take a selfie could infringe copyright.

In a famous example, Stephanie Lenz originally had an adorable 29-second clip of her baby dancing to a Prince song removed from YouTube, due to her use of the song. She was able to get it put back up under US fair use law – but an Australian wouldn’t have that right.

Stephanie Lenz’s “dancing baby” video is legal under US “fair use”, but would likely infringe copyright in Australia.

Technical and non-consumptive uses: The internet we love today is built on fair use. When search engines crawl the web, making a copy of every page they can in order to help us find relevant information, they’re relying on fair use.

Under Australian law, even forwarding an email without permission could be an infringement of copyright.

The copyright reform debate

Two recent government reports, from the Australian Law Reform Commission and the Productivity Commission, have recommended that Australia simplify its copyright law by introducing fair use.

Many of us copyright academics have written here extensively in support of fair use over the past few years, but there are still many myths about what the law would do.

It’s been suggested that introducing fair use here would provoke a “free for all” use of copyrighted work, but that hasn’t happened in the US. In fact, some of the same major studios that oppose fair use in Australia are at pains to point out that they support fair use in the US because it is vital to commercial production that happens there.

The Motion Picture Association of America, for example, says that “Our members rely on the fair use doctrine every day when producing their movies and television shows”.

To put it simply: we don’t think that fair use will harm creators.

The “fair” in fair use means that it’s not about ripping off creators – it mainly allows uses that are not harmful. But we do think that fair use would provide an important benefit for ordinary Australians – both creators and users.

The ConversationKatherine Gough, a musician and law student at Queensland University of Technology, co-authored this article.

Nicolas Suzor, Associate professor, Queensland University of Technology

This article was originally published on The Conversation. Read the original article.

Australian copyright laws have questionable benefits


Beth Webster, Swinburne University of Technology and Mitchell Adams, Swinburne University of Technology

As the Australian Copyright Agency comes under pressure for appearing to use member royalties to enshrine self-serving copyright laws, it’s time to question the purpose of copyright. Some argue current laws ensure artists are fairly paid and make more local content. The evidence doesn’t support this idea. The Conversation

Copyright is primarily concerned with creative works.

Exploitation of copyright occurs when the author of a creative work excludes all others from reproducing or otherwise using their work for up to 70 years after their death, unless they, the authors, agree to authorise any such use (i.e. pay a fee or a royalty under voluntary or compulsory licences).

On the pro-copyright side, we have the global movie and music industry, many IP lawyers and prominent authors.

Opposing copyright, we have academics, economists and other public policy analysts.

Does copyright encourage more creative work?

The intention of copyright laws is to encourage people to create cultural products such as books, songs, movies and fine art etc. The argument goes that if the authors of these works (or their owners) can charge royalties to those who enjoy these works, then more people will decide to work as authors.

The author gets an income and can therefore spend more time creating works.

However, there are strong arguments that copyright may have gone too far. Royalties only go to a small amount of people, and they mostly prop up the incomes of “rent seekers”. Rent seeking is when income from copyright just makes existing creators wealthier and does not encourage more people to become creators.

The contra-copyright group see some advantage from copyright lasting a few decades, but not the current system, which grants copyright for life plus 70 years after death (there are some exceptions).

Royalties should not be paid beyond the point at which the income stream has an effect on decisions to create more now. Existing copyright laws (which can give control for over 100 years) are merely lining the pockets of movie houses and the heirs of dead authors, without having any effect on the current group of artists.

Australian culture will falter without copyright

The next argument in favour of copyright is that the true value of copyright is the ability for the owner to control the use of their work through licensing.

Given the ubiquity of the internet, it is now very easy to copy works and local authors will not be able to make a living from their work.

Hence, any time or effort they put into creations will be in their spare time after working elsewhere. Enabling authors to receive some royalties goes some way towards providing them with independent income.

But the contra-copyright group say the fact that most royalties go to very few authors, or go overseas to the big music and movies houses and publishers, means copyright does little for emerging and local artists.

In fact, the best way to encourage the local cultural sector might be to offer stipends or grants directly to local artists.

It is not to use copyright to overcharge the ordinary householder; prosecute those who illegally download movies; or to waste the time of students and school teachers filling in royalty forms.

A right to control your creation?

Another pro-copyright argument is that copyright is needed to ensure authors are credited for, and control, their work. This is also known as “moral rights”, and creates the obligation to attribute creators and treat their work with respect.

But we could question whether this is the role of copyright. Gifting moral rights does not necessarily mean the artist should be able to decide who can read or watch his or her work for the purpose of genuine enjoyment.

Authors should be paid for their contribution to society

The pro-copyright group claim that royalties are justified on fairness grounds. People should be rewarded according to their contribution to society and as royalties are linked to use (reading or watching), it is a clever way to link contributions.

However, in terms of value to society, a case can be made that primary school teachers, civil engineers or surgeons should be paid more. And as copyright only delivers a living wage to very few artists, we can question whether the current laws are a fair system.

Fair use

The Productivity Commission recently agreed with the Australian government to reform the education statutory licensing scheme, but commented that this decision was missing a recommendation to move to a “fair use” system of copyright exceptions.

Fair use allows for certain circumstances where people can use copyrighted material without the copyright holder’s permission.

Australia does not have a fair use exception. It only has a more limited “fair dealing” exception which means we can only avoid permission for uses that are on a list.

A fair use system would allow users such as schools and universities to use works in some situations without paying any royalties. Maybe, we should limit copyright to 20 years and increase our stipends to local artists instead.

Beth Webster, Director, Centre for Transformative Innovation, Swinburne University of Technology and Mitchell Adams, Research Fellow in Intellectual Property Law, Swinburne University of Technology

This article was originally published on The Conversation. Read the original article.

Australia’s copyright reform could bring millions of books and other reads to the blind



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Rule change should make it easier for more copyright works to be made available in Braille.
Chinnapong/Shutterstock

Nicolas Suzor, Queensland University of Technology

Proposed changes to Australia’s copyright law should make it easier for people to create and distribute versions of copyrighted works that are accessible to people with disabilities. The Conversation

The Copyright Amendment (Disability Access and other Measures) Bill was introduced to Parliament on Wednesday.

If passed, it would enable people with disabilities to access and enjoy books and other material in formats they can use, such as braille, large print or DAISY audio.

The Australian Human Rights Commission has long been calling for action to end the “world book famine” – only 5% of books produced in Australia are available in accessible formats. This means that people with vision impairment and other reading disabilities are excluded from a massive proportion of the world’s knowledge and culture.

Under the current law, educational institutions and other organisations can produce accessible copies of books, but the system is slow and expensive. Only a small number of popular books are available, and technical books that people need for work are often out of reach.

Technology should make accessibility much easier, but publishers have been slow to enable assistive technologies.

People with disabilities have long complained that they are not able to take advantage of new technologies such as inbuilt screen reading software on computers and smartphones.

Amazon’s Kindle, for example, used to allow text-to-speech to help blind people read books, but Amazon gave in to publishers’ fears and allowed them to disable the feature. Apple’s electronic books are much better, but there are still major gaps.

Our research looked at books available through electronic academic databases, and found that most ebook libraries have some features that frustrate full accessibility.

The Copyright Act in its current form does grant statutory licences for copying by institutions that assist people with disabilities, but there are no comprehensive exceptions for individuals. Research shows that even students in resourced universities have trouble accessing the materials they need to study.

A fair right for people with disabilities

The new Bill aims to create a clear right for individuals to copy materials into accessible formats. Critically, this new “fair dealing” exception also allows other people to help out by creating and sharing accessible versions of books and other materials.

This is a major milestone in making copyright law more fair. It implements Australia’s obligations under the Marrakesh Treaty, a landmark international agreement designed to stop copyright getting in the way of accessibility.

The Marrakesh Treaty, once implemented around the world, will enable organisations to share accessible books to the people who need them in other countries. This is an extremely important change as the costs of scanning and making a book accessible are so high that most blind people are denied access to most works.

Once the laws are clarified, the accessibility of books will increase dramatically. Google has been busy digitising the world’s books, and it has given those books to a charity called Hathi Trust. Soon, Hathi Trust will be able to share those books with blind people around the world.

Google’s partnership with Hathi Trust means that blind people will soon be able to access more than 14 million volumes almost overnight. This figure may grow quickly as Google has already digitised more than 30 million books. Very soon, the proportion of accessible books might jump from 5-10% to closer to 30%.

A missed opportunity

The Bill also proposes a number of other long awaited updates to Australian copyright law. But one thing the Bill does not do is fix a drafting error that has plagued Australian copyright law for the past decade.

When Australia signed the Australia – US Free Trade Agreement, we introduced a system of “notice-and-takedown” that would protect copyright owners. The system provides a way for people to ask online service providers to remove content that infringes copyright.

But the law was poorly drafted. It applied only to a small number of Internet Service Providers (such as Telstra, Optus and iiNet) but not the larger category of search engines and content hosts.

This means it does not apply to giants such as Google and Facebook. It also means that other organisations that host content uploaded by users, such as The Conversation, are also excluded.

These safe harbours provide a shield in case people – outside of the service provider’s control – use their networks to upload content that infringes any copyright laws.

The reason they are so critical is that it is often prohibitively expensive for the companies that host internet content to check all content before a user uploads it.

But the safe harbours aren’t free. The quid pro quo is that the ISP must introduce a notice and takedown scheme. This is one of the few effective mechanisms to get content removed from the internet, and has been a crucial part of protecting the rights of publishers and authors online.

Professor Kim Weatherall explains the drafting error in Australia’s copyright safe harbours.

When the new Bill was first drafted, it was set to fix the drafting error that excludes content hosts, search engines, universities and other organisations from the scheme. But the Bill introduced this week contains no such fix.

The extension of these safe harbours has become highly politicised, with major rightsholders warning that it looked like a win for Google and Facebook.

The past two decades of the internet in the United States have shown how critical the safe harbours are to all developers, both large and small. They reduce uncertainty and allow innovation in the ways that people access content.

So while this new Bill is important, it is also a missed opportunity. The drafting error in Australia’s copyright safe harbours means that neither tech companies or authors and publishers are well protected.


Tess Van Geelen, a Research Assistant at the Faculty of Law, Queensland University of Technology, contributed to this article.

Nicolas Suzor, Associate professor, Queensland University of Technology

This article was originally published on The Conversation. Read the original article.

Productivity Commission re-ignites copyright wars by recommending ‘fair use’


Nicolas Suzor, Queensland University of Technology and Shereen Parvez, Queensland University of Technology

The Australian Government has just released the Productivity Commission’s report into Australia’s Intellectual Property Arrangements.

It’s a move that appears to have been designed to avoid some of the controversy of the copyright wars by releasing the report just before most Australians settle into their summer break.

The report does something that is very difficult in copyright debates: it sets out a rigorous, evidence-based case for reform. Academics have praised the “independent and systematic study that has assessed the effectiveness, efficiency, adaptability and accountability of Australia’s IP [intellectual property] laws”.

Good evidence about how well intellectual property laws are working is sometimes hard to come by. Intellectual property laws, including copyright and patent law, have to be very carefully calibrated. If they are too weak, it is difficult for investors to recoup their expenses in bringing new inventions, books, music and films to the market.

But when intellectual property laws are too strong, they restrict innovation and access to knowledge. They prevent people from making new inventions and creating new works, because access to existing materials becomes too expensive or difficult.

For consumers, they can make access to knowledge and culture much more expensive, and they can get in the way of education and the legitimate needs of disadvantaged members of society.

Scholars have pointed out for many years that the optimal balance between protection and access to knowledge is extremely difficult to pinpoint. As a result, intellectual property policy is a deeply controversial and emotional political arena. In the past, decisions about IP policy have been made on the basis of heavy corporate lobbying, gut-instinct, hunch and guesswork.

The Productivity Commission’s report is important because it reviews the available evidence and provides recommendations that we have good reason to think will improve Australia’s intellectual property laws.

After reviewing the evidence, the Productivity Commission’s view is that copyright law is not balanced, and that our laws:

[…] are skewed too far in favour of copyright owners to the detriment of consumers and intermediate users.

Making Australian copyright law ‘fair’

Probably the most significant – and controversial – recommendation is that Australia should introduce a “fair use” exception for copyright infringement.

Fair use allows people to use copyright material in ways that are fair, without asking for permission first. It has been extremely important in the United States for many different industries.

Filmmakers use it to make documentaries, libraries use it to digitise and preserve their collections, scholars use it for important data- and text-mining research, and search engines use it to index the web.

The Productivity Commission’s report is just the latest in a string of reports to recommend that Australia introduce a fair use exception. It found that Australia’s current exceptions to copyright:

[…] are too narrow and prescriptive, do not reflect the way people today consume and use content, and do not readily accommodate new legitimate uses of copyright material.

Balancing intellectual property laws is a thrilling challenge.
J Mark Bertrand/Flickr, CC BY-NC-ND

Other recommendations

The report is detailed and comprehensive, and covers a lot of ground. The Productivity Commission recommended a raft of other changes to modernise Australia’s copyright laws, including:

  • preventing copyright owners from overriding consumer rights through restrictive contractual agreements

  • allowing Australian consumers to break digital locks on content that prevent lawful activities (like fixing a tractor)

  • fixing a decade-long oversight in our “safe harbour” regime that makes it extremely difficult for home-grown equivalents of YouTube or social media platforms to host content in Australia

  • clarify the law to ensure Australian consumers can use VPNs to access content lawfully available in other countries

  • ensure that the results of publicly funded research are made freely available to the public under Open Access policies

  • remove an exception from competition law that allows software and content companies to create exclusive deals and other restrictive licensing agreements that would otherwise be anti-competitive.

Restarting the copyright wars

The timing of this report seems to be designed to minimise some of the controversy that it will generate. The commission’s report warns that it will be extremely difficult to “pursue change in the face of strong vested interests”.

The Copyright Agency, the Australasian Performing Right Association and the Australasian Mechanical Copyright Owners Society (APRA AMCOS), prominent players in the book industry and several authors have all issued statements that are highly critical of the commission’s report.

Their essential concern is that the expansion of user rights will result in reductions in revenues and investment in Australian creative industries and Australian creators.

The great difficulty here is that copyright law is extremely complex, and the debate is so emotive that the details often get lost in the heated arguments. What little empirical evidence we do have to guide policy is glossed over in a strong reaction against change.

The reaction of the established copyright industries is understandable. It has been very difficult for publishers and distributors to adapt to the internet, and they are only now beginning to develop business models that work in the digital age. The process has been painful to say the least.

In this context, many publishers, distributors, and creators feel besieged by efforts to reform copyright law for the digital age. But it is too late now to go back to a pre-digital world.

The restrictions on parallel importation, which have kept prices high for books in Australia, are a good example of laws that just don’t work for digital markets. If we expect consumers to obey copyright rules, it is clear that we need to work to make sure that the law and business models treat them fairly.

The great shame about the copyright wars is that sensible, evidence-based proposals for reform get mixed up with highly emotive reactions to “piracy”. The proposals by the Productivity Commission are careful and well justified. The evidence we have is that they are not likely to harm the actual revenues of Australian creators.

There is no doubt that we need new business models – and public funding – to support creators in the digital age. This is the hard work of real practical change that needs to happen to enable our creative industries to thrive.

The good news is that overseas examples show that it is possible for creators to make money in the digital economy. The Productivity Commission’s recommendations are a bet that digital is the future, and that making Australia’s laws more efficient and effective is critical to the health of our future industries.

We’re looking forward to the government’s plans to implement these recommendations, but it looks like 2017 will be a heated year for copyright debates.

The Conversation

Nicolas Suzor, Associate professor, Queensland University of Technology and Shereen Parvez, Graduate Research Fellow, Intellectual Property & Innovation Law Research Program, Queensland University of Technology

This article was originally published on The Conversation. Read the original article.