Category Archives: Copyright

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Australian copyright laws have questionable benefits

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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.

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

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Image 20170322 25755 1y5edm2
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.

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Writing and Copyright

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The link below is to an article that looks at what you need to do to copyright your work.

For more visit:
https://ebooksuccess4free.wordpress.com/2017/01/05/do-i-need-to-copyright-my-book/

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

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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.

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When it comes to books and copyright, the government should leave things as they are

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David Throsby, Macquarie University

The Australian book industry is in a state of considerable agitation as it waits to see if the federal government will scrap the parallel import restrictions of the Copyright Act.

Lifting the restrictions has been recommended by the Harper Committee and the Productivity Commission, and a decision could come next week, next month, or never.

These regulations restrict the importation of commercial quantities of books without the permission of the copyright holder. There is a strong sense of déjà vu in the current situation. Every few years since the 1980s a recommendation for repeal of these import restrictions has been put to the government of the day and every time the government, whether Coalition or Labor, has rejected it.

The arguments for doing away with them are based on simple economics. The restrictions provide some protection for authors and publishers in the face of international competition. The overall effect is to raise, at least temporarily, the price of books to Australian consumers, though the directly attributable cost increase is uncertain.

Keep reading: Parallel importation and Australian book publishing: here we go again

Nevertheless, any form of protection is anathema to economists as it distorts markets, creates inefficiencies in the allocation of our national resources, and restricts the access of consumers to cheaper supplies of products from abroad.

The cultural exception

So should books be treated differently from anything else? Books are a cultural product, and can be defined as such for the purposes of international trade. Ever since the structure of the world trading system was set up in the 1940s with the establishment of the General Agreement on Tariffs and Trade, the forerunner of the present-day World Trade Organisation, a special case for cultural goods and services has been recognised: the so-called “cultural exception”.

The principle behind this concept is the proposition that cultural products are not just commercial merchandise, but embody cultural values that are separate from and additional to their economic value. These cultural values, it is argued, can be shown to be important to society, especially when they represent something about the national culture from which they are derived.

Keep reading: Friday essay: thriving societies produce great books – can Australia keep up?

So the argument concerning Australian books, written by Australian authors about Australian subjects and published by Australian publishers is that they convey such values. Hence, in the context of international trade they should be granted a cultural exception and should not be subject to the same free-trade ideology as other commodities in the global marketplace.


Tarek Mostafa/Reuters

Some hardline economists – including in the Productivity Commission – acknowledge the significance of Australian books to our culture. They’re willing to accept a role for the public sector in ensuring that the cultural contribution of the book industry is maintained, provided that the community agrees that such a role is worth paying for.

The argument here is that if Australian books generate a sufficient level of public-good benefit through their contribution to our collective cultural life – a contribution that cannot be purchased overseas, by the way – this may constitute a case of market failure. Government intervention to correct for it may be justified if the benefits from intervention outweigh the costs.

So far so good, you might think. But it is one thing to agree that some level of support for an industry is justified – and quite another to determine how such support might be provided.

Economists are likely to argue that instead of the blunt instrument of parallel import restrictions, whose beneficiaries may well include many of the “wrong” people, direct fiscal support would be more appropriate because it can be targeted at those who generate the public benefit, such as Australian authors.

Protection through fiscal channels?

If we accept this line of argument, and if the existence of public-good benefits from the Australian book industry is assumed, it can be argued that the best policy action in the present circumstances would be to remove the import restrictions, and replace them with an equivalent level of protection provided through fiscal channels, for example by increasing the levels of financial support provided to writers and publishers of Australian books.

Such a recommendation may have merit in principle, but in the realpolitik of the Australian government today it simply doesn’t stand up. Federal funding for the arts and culture sector has been under considerable pressure in recent years. Even more pointedly, the government last year signalled its attitude to supporting the book industry by abolishing the newly-established Book Council before it had even held its first meeting.

Keep reading: Short shelf life: the Book Council of Australia is stuffed back on the rack

The possibility that the Government would approve a new budget allocation of any significance to compensate authors or publishers following removal of the import restrictions must be regarded as very remote indeed.

Some commentators have argued that import restrictions are a relatively minor issue, particularly when set against other more far-reaching copyright proposals such as the possible introduction of US-style fair dealing – a prospect that would have much more serious implications for the book industry. Nevertheless the recommendation is there, and needs a response.

What to do? To avoid a confrontation with an entire industry and to demonstrate a concern for the health of Australian cultural life, the government could either abolish parallel import restrictions and provide compensatory support for the production, distribution and consumption of Australian books, or it could leave things as they are.

As we have noted, successive Australian governments have in previous years accepted the latter as the appropriate practical and principled strategy. In its own interests, the present government would be well advised to do the same.

The Conversation

David Throsby, Distinguished Professor of Economics, Macquarie University

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

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Copyright and Ownership

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The link below is to an article that looks at the current digital dilemma of copyright and the issue of ownership of content.

For more visit:
http://www.slate.com/articles/technology/future_tense/2016/10/the_uncertain_future_of_copyright_in_the_on_demand_age.html

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

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Matthew Rimmer, Queensland University of Technology

The award-winning Australian author Jackie French is wrong. In her open letter, she blasts the Productivity Commission’s report on intellectual property, released last month.

The report, though, makes a number of sensible recommendations that will help modernise Australia’s copyright laws for the 21st century. Economically, the report is rigorous and comprehensive.

Morally, the study shows a subtle and nuanced appreciation that copyright law is designed ultimately to promote the public interest of the Australian community.

The proposed reforms will enhance consumer rights, competition policy, access to knowledge and Australia’s ambitious National Innovation and Science Agenda and “ideas boom”.

The report also makes some helpful suggestions regarding Australia’s process for treaty-making in respect of intellectual property.

Competition policy

The Productivity Commission has recommended the repeal of parallel importation restrictions for books, which supports the position of Prime Minister Malcolm Turnbull and Treasurer Scott Morrison.

Allowing parallel imports will make books cheaper, potentially boosting sales and the number of active readers.
J Brew/Flickr, CC BY-SA

Australia’s parallel importation restrictions are an anachronistic hangover from British imperial publishing networks and are anti-competitive.

Over the past 40 years, the High Court of Australia, the Prices Surveillance Authority, the Australian Parliament, the Australian Competition and Consumer Commission, the Productivity Commission and the Harper Competition Policy Review have highlighted how Australian consumers are paying more than they should for books.

Parallel importation restrictions largely benefit multinational publishing networks and foreign authors rather than local authors. As the Productivity Commission comments:

Most of the additional income from higher book prices goes to overseas authors and publishers whose works are released in Australia. The Commission estimated the additional income flowing overseas is around 1.5 times that retained by local copyright holders. In effect, PIRs impose a private, implicit tax on Australian consumers that largely subsidises foreign copyright holders. Indeed, none of the authors with top ten titles in the sample provided by HarperCollins are Australian.

The removal of parallel importation restrictions would be beneficial for Australian readers. Cheaper books for Aussie kids would be a great policy outcome.

In response to the Productivity Commission, publishers and authors have been running a scare campaign against the commission’s recommendations. The multinational publishing empire HarperCollins has grimly defended the restrictions.

Authors Thomas Keneally, Richard Flanagan, Peter Carey, Tara Moss and Jackie French have railed against the report. However, their emotive arguments are weak, inaccurate and unconvincing.

Parallel importation laws are not an effective means of protecting local culture or creative livelihoods. The removal of the restrictions will not destroy the local publishing industry. Indeed, opening up the book market may well be beneficial for publishers and authors by removing age-old distortions in the marketplace.

The Productivity Commission also supported the Australian Parliamentary Inquiry into IT Pricing and recommended that Australian consumers should be able to circumvent geoblocking.

Australian consumers deserve a fair deal in the digital economy. It has been concerning that Australian internet users are paying much more for IT works than our counterparts overseas.

Foxtel has opposed these recommendations. However, consumers such as Mark Serrels have complained that Foxtel’s service provides a poor distribution system for TV shows such as Game of Thrones.

Innovation

The Productivity Commission was concerned that “Australia’s copyright system has progressively expanded and protects works longer than necessary to encourage creative endeavour, with consumers bearing the cost”.

The commission also recommended that Australia should adopt a broad defence of “fair use”, supporting the previous inquiry by the Australian Law Reform Commission Into Copyright Law and the Digital Economy.

The defence of fair use in the United States has enabled innovative start-ups to flourish in hot-spots such as Silicon Valley, Boston and New York. Indeed, the US courts recently recognised that Google Books was protected under the doctrine of fair use.

Professor Peter Jaszi has noted that fair use is the “secret sauce” of US competitiveness.

Australia is at a competitive disadvantage because it has only a much more limited, purpose-specific defence of fair dealing. Start-ups may well be reluctant to base themselves in Australia because of fears of copyright litigation by incumbent industries.

The Productivity Commission recommended:

A new system of user rights, including the introduction of a broad, principles-based fair use exception, is needed to help address this imbalance.

The commission observed:

One of the key advantages of a fair use over a fair dealing exception is that the law can adapt to new circumstances and technologies.

The Australian Law Reform Commission has already highlighted how a defence of fair use could future-proof Australia’s copyright laws.

In addition, the Productivity Commission has recommended that all Australian governments should implement an open access policy for publicly funded research.

The policy should provide free access through an open access repository for all publications funded by governments, directly or through university funding, within 12 months of publication. This proposal will help boost Australia’s Ideas Boom.

The open access sharing of research will support the creative industries, as well as science and technology. Ryan Merkley, CEO of the Creative Commons project, has highlighted the benefits of open access publishing.

In particular, public health research could benefit. As US Vice President Joe Biden recently observed, there is a need to get cancer research out from behind pay-walls.

Fair trade

The Australian government has been involved in a flurry of negotiations over intellectual property and trade, with the Australia-US Free Trade Agreement, the Anti-Counterfeiting Trade Agreement, the Trans-Pacific Partnership and various trade agreements with Chile, Japan, China and South Korea.

The Productivity Commission noted that the Mickey Mouse copyright term extension under the Australia-US Free Trade Agreement was incredibly expensive for the Australian community. Australia is a net importer of copyright works, and there was a need to mitigate against the costs of exorbitant copyright term extensions.

Reflecting upon such hectic activity, the Productivity Commission has been critical of the government entering into trade agreements without openly and fully assessing the benefits and costs of intellectual property obligations.

The commission warned:

Agreements embodying provisions on the scope and term of IP protection necessarily involve a ‘wrestle for rents’ – Australia should not capitulate too easily.

Moreover, the commission was concerned about the “spaghetti bowl” of trade agreements that Australia had been involved in:

Further, in more recent times, there has been a tendency to favour bilateral and regional initiatives over multilateral ones, resulting in overlapping and complex rules.

The commission’s report will provide a salutary caution for the Australian Parliament as it evaluates the Trans-Pacific Partnership.

Rather than let the Productivity Commission’s report be lost in the tumult of the 2016 election, Australian politicians should pay heed to the popular interest in the study.

The Australian public has been crying out for copyright reforms to our anachronistic laws to bring them up to date with the digital age of the 21st century.

There is a great opportunity for political leaders to capitalise upon this public interest in competition, innovation, access to knowledge and fair trade.

The Conversation

Matthew Rimmer, Professor in Intellectual Property and Innovation Law, Queensland University of Technology

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

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Australian copyright reform stuck in an infinite loop

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Kathy Bowrey, UNSW Australia

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

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

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

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

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

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

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

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

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

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

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

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

The background paper to the Exposure Draft notes:

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

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

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

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

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

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

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

The Conversation

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

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

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Your Questions Answered on open access

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Virginia Barbour, Australian National University; Danny Kingsley, University of Cambridge; James Bradley, University of Melbourne; Keyan Tomaselli, University of Johannesburg; Lucy Montgomery, Curtin University, and Tom Cochrane, Queensland University of Technology

Open access means making peer reviewed works freely available in digital form, so that anyone with internet access can use them, without financial, legal or technical barriers. It allows users to download, copy, print and distribute works, without the need to ask for permission or to pay.

To the mark the eighth annual Open Access Week, we asked what readers wanted to know about the initiative.

Why do we need open access? How can I use it? Is it better for the sciences or the humanities?

Lucy Montgomery: Open access is a powerful mechanism for widening access to knowledge and for increasing the impact of research beyond universities. Because it makes peer-reviewed scholarship free at the point of use, open access helps ensure people who need knowledge can access it, even if they can’t afford to pay for it.

Patients scouring the internet for the latest information about rare medical conditions, scholars in the developing world, and practitioners who want to apply evidence-based research to challenges they face every day, are just a few examples of groups who benefit from open access.

The global shift to open access is being driven by a consensus that the public has a right to access publicly funded research outputs. Closed publishing models rely on recovering the costs of publishing research by selling access to it. This made sense in a print-dominated world, when the marginal costs associated with making and distributing physical copies of books and journals was high; it makes much less sense in digital landscapes where the costs of making additional copies of a work once it’s been published are very low.

The global shift to open access is being driven by a consensus that the public has a right to access publicly funded research outputs.
Gideon Burton/Flickr, CC BY-SA

Once a work has been made open access, it’s free for anyone in the world to read or download. This is a boon for anyone who has ever been frustrated by a pay wall, for teachers looking for resources that can be shared easily with students, and for scholars who hope their work will contribute to a wider body of knowledge.

Although open access has been faster to take off in the sciences, it also has important benefits for scholars working in the humanities: helping authors to share their work with the communities that they write both for and about, and making knowledge and ideas available to new audiences.

How can journals meet the costs of editing, typesetting, proofreading, website construction and management if they move from subscriptions to open access?

Keyan Tomaselli: One of the key blind spots in open access discussions is the cost it poses to publishers. Journals that are not funded by foundations or universities are financially vulnerable in an open access environment unless they start charging for publishing articles. This is because their “permissions income stream”, which are paid to journals through national copyright agencies when their articles are reproduced in student course packs, will dry up.

In this model, the burden of payment will shift from reader or library payment for downloads or subscriptions, to author or institution for articles to be published. The assumption that open access is free – after data charges are paid – is wrong because though readers can access articles for free, authors and their institutions will end up paying so journals can recoup their costs. Data charges relate to the cost of internet access and downloading.

Too often one forgets that such accessing of the internet has cost implications too. And then there are journal post-production costs, including online platform hosting, marketing, discoverability, and archiving, among other things.

Open scholarship includes open notebook, open data and open review as well as open access. What are more systematic and rigorous treatments of open scholarship?

It’s now possible to put a digital ‘stamp’ on different scholarly outputs.
Gideon Burton/Flickr, CC BY-SA

Danny Kingsley: There’s an increasing amount of research and discussion about open scholarship about integrity and researcher support; research management; assumptions and challenges; and about how we capture what’s being produced in repositories.

But although the nature of research is changing profoundly, the current system still only rewards and recognises traditional publication. Opening up scholarship has multiple benefits: research claims can be verified, work doesn’t have to be repeated to recreate the data, and data can be analysed from other perspectives.

It’s now possible to put a digital “stamp” on different scholarly outputs, called digital object identifiers (or DOIs). This means a researcher can be cited when another uses their work, and receive recognition.

By having an “open process” in research, we can put digital stamps on all aspects of research, such as progress in thinking through an online discussion paper, for instance; new techniques; and approaches and experiments. These can themselves be cited and therefore rewarded, rather than only recognising traditional published outputs.

How do we ensure research published under open access continues to have a system of rigorous quality checks, such as peer review, that can cope with the enormous load of research looking for publication?

James Bradley: We can’t ensure rigorous peer review of research will be undertaken under open access. Not only that, we know for sure that the explosion of open access journals has allowed for the publication of not just bogus work, but also work that’s irrelevant or useless for scientific or the whole academic enterprise.

How do we know this? For starters, there was an infamous sting in late 2013 that revealed a nonsensical piece of research was accepted for publication by a large number of open access journals. Then, there’s the research showing the huge numbers of “predatory” journals, which are basically in it for the money. The academic or the academic’s institution pays for publication and the piece gets in, regardless of quality. That’s why so many researchers often get emails from start-up journals soliciting our work — for a fee. It’s all about profit.

There’s another form of quality control that transcends peer review and lies in the after-life of a publication.
Gideon Burton/Flickr, CC BY-SA

To mitigate this situation, there’s the Directory of Open Access Journals, which is supposed to act as quality control. If you make it on to the list, then you are supposed to be reputable. But some of the journals that have made it to the list are, in fact, “predatory”.

But it’s false to assume that all research that makes it into a front-rank publication is great or that all work in pay-for-publication journals is junk. The peer review system has always had flaws. Ultimately, there’s another form of quality control that transcends peer review and lies in the after-life of a publication — the opinion of your peers.

And this can, to some extent, be measured by metrics through citation databases. But it’s also reflected in the status and reputation accorded by your peers. It was ever thus, and most definitely remains the best form of quality control.

To what extent does this issue go beyond the machinations of open access versus the nuances of what’s free and not free, to the problem of the role of the university in a world where capitalism and the internet frame much of what we do?

Tom Cochrane: Open access has three points of origin. These, in no particular order, are the interests of the researcher in greater exposure and readership; the distorted economics of the price of scholarly communication (as distinct from the true cost of academic publishing); and the fact that the internet has made open access possible in the first place.

Openness in access to research outputs, research data and research processes, enhances replication capability, and allows review.
Gideon Burton/Flickr, CC BY-SA

As the debate about open access has matured, it has also become clear that greater openness can also provide protection against research fraud or dishonesty. Openness in access to research outputs, research data and research processes, enhances replication capability, and allows review.

Open access has no particular correlation or causal relationship with the broader role of universities, other than to improve the efficiency and integrity of research and to increase the likelihood of greater integration with their various communities. It’s certainly true that we wouldn’t have seen it develop without the internet and, as such, the movement is another case of innovation and disruption of legacy models.

Where are we getting with the movement, year to year? How much concrete progress has there been as opposed to awareness raising?

Virginia Babour: There’s no doubt that the open access has come a long way. There are now mandates for open access in many countries and institutions globally.

These mandates vary in what they require. Some, like the one in the United Kingdom, are primarily supported through publication in open access journals. Others, like Australia’s funding councils’ mandates, are via deposition of an author’s research in university repositories.

There’s also been an explosion of different technologies around open access, including new ideas on what can be published – just parts of articles, such as figures, fir instance – and new models for publishing open access books.

Finally, the infrastructure to support open access is developing with licenses for publishing, which lay out clearly how articles can be used. And identifiers for people and documents (even parts of documents), so there can be better linking of scholarly literature.

Open access is an evolving ecosystem. There will be different models to fit different specialities and probably different countries. But that’s fine if it works.

The Conversation

Virginia Barbour, Executive Officer, Australasian Open Access Support Group, Australian National University; Danny Kingsley, Executive Officer for the Australian Open Access Support Group, University of Cambridge; James Bradley, Lecturer in History of Medicine/Life Science, University of Melbourne; Keyan Tomaselli, Distinguished Professor, University of Johannesburg; Lucy Montgomery, Director, Centre for Culture and Technology, Curtin University, and Tom Cochrane, Adjunct Professor Faculty of Law, Queensland University of Technology

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

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Life plus 70: who really benefits from copyright’s long life?

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Catherine Bond, UNSW Australia

Few of us wish to disclose our age. But, for the purposes of this article, I am willing to do so: in 2012, I turned 30.

According to data generated by the Australian Bureau of Statistics, a woman in Australia aged 30 in 2012 will likely live for another 54.90 years. If this figure is correct in my case, then copyright will protect this article for nearly 125 years. It will officially enter the public domain on 1 January, 2141.

Is what I say in this article so significant that I, and many generations of Bonds to come, should enjoy a right to control who copies this piece for the course of the next century and beyond?

Probably not. However, that is how copyright applies in Australia. So why do we protect copyright for the life of the creator plus 70 years?

Term of his natual life

The length of copyright protection has been in the news recently following the leaking of the Intellectual Property Chapter of the forthcoming Trans-Pacific Partnership (TPP).

Under the TPP, Australia won’t be required to make any changes to our term of copyright for works (such as this article). We already introduced the TPP-mandated period of protection for published works – life of the author plus 70 years – when we signed the Australia-United States Free Trade Agreement in 2004.

Before this, Australia’s term of protection was life of the author plus 50 years, which is the minimum standard required by the Berne Convention, our main international copyright agreement. However, other countries in the TPP, such as Canada and New Zealand, will need to extend copyright in works to life plus 70 years if the TPP proceeds.

For as long as there has been statutory copyright protection, there has been a stated term of protection for published works. That duration is seen as part of what is described as the “copyright balance”.

When the High Court of Australia considered in 2009 whether copyright should protect a TV guide created by Channel Nine in IceTV v Nine Network Australia, the judges stated that:

[…] the purpose of a copyright law respecting original works is to balance the public interest in promoting the encouragement of “literary”, “dramatic”, “musical” and “artistic works”, as defined, by providing a just reward for the creator, with the public interest in maintaining a robust public domain in which further works are produced.

Copyright provides authors with an incentive to create works and release these to the public, by rewarding that author with a number of rights for a limited period of time.

These rights include control over who can copy it or make it available online. In turn, during the term of copyright, the public can use the work as allowed under law, but after copyright expires, any person may copy the work in part or in whole in a variety of ways.

Out of public domain

Over the years, that period of protection has been extended a number of times to take account of factors, including the impact of war, although today copyright protects works for far longer than a patent might protect an invention (20 years) or a design (two terms of five years).

Jane Austen’s books, for example, have been in the public domain for more than 150 years. As a result, anyone can publish and sell their own edition of Emma or Sense and Sensibility, or use Austen’s characters in another story, as happened in Pride and Prejudice and Zombies and its forthcoming film adaptation.

Innovative works such as Pride and Prejudice and Zombies are made possible only once copyright lapses.
Robert Burdock/Flickr, CC BY-NC-ND

When Austen died in 1817, copyright in her works passed to family members, as was intended under copyright law. A posthumous term of copyright was to ensure that heirs of the copyright owner could benefit from what his or her family member created, and to continue to enjoy some financial benefit after the death of the original author.

However, this does not always happen. Austen’s relatives sold the copyright in her works to an English book publisher in the 1830s, and it often happens that a publisher or another third party will own copyright.

When Men at Work were famously sued for copying the children’s song Kookaburra Sits in the Old Gum Tree, the owner of the copyright was not Marian Sinclair, the writer of the song, or her direct heirs. Instead, it was a music publishing company, Larrikin, which purchased copyright in the song from the Public Trustee.

Today, we have empirical evidence that a strong public domain provides significant economic benefits.

Often these benefits are overlooked when we are negotiating trade agreements like the TPP, which may have broader strengths and consequences beyond those that affect IP. However, when the duration of copyright in an online article starts to sound like science fiction, it may be time to limit the time of copyright.

The Conversation

Catherine Bond, Senior Lecturer in Law, UNSW Australia

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