The link below is to an article reporting on flood damage to the Australian National University’s Chifley Library in Canberra, Australia.
Australia’s consumer laws aren’t adequately protecting Australians who buy digital products such as e-books and digital music. If a TV doesn’t work, or an iPod or computer is faulty, the law provides a remedy. The same is true for physical books and music media – but not for their online counterparts.
Under Australian law consumers are entitled to receive goods that are of acceptable quality and fit for their purposes, and that correspond with their description, among other legally enforceable consumer guarantees. But these guarantees apply only to “goods” and “services”.
How digital products fit (or don’t fit) into the goods and services categories has been debated for decades, and the law still hasn’t properly accommodated them.
Australia’s consumer laws went through a major update in 2010, but remain out of date. The digital world moves fast, but our consumer laws remain rooted in a system that assumes “goods” and “services” are the only types of trade. These laws still owe much to sale of goods legislation passed in the United Kingdom all the way back in 1893.
What are consumer laws?
The law generally expects that people and companies entering into contracts are able to look after their own interests. Consumer laws exist to provide additional legal protection to consumers, who are usually in an unequal bargaining position compared to the companies they deal with.
A consumer is someone who acquires goods or services that are ordinarily bought for personal, domestic or household use, or for a price of A$40,000 or less.
Consumer purchases include a range of items – TVs, iPods and computers are just some examples. Where a consumer purchases goods, the law requires that those goods comply with particular consumer guarantees, no matter what the terms and conditions of sale say.
If a new “smart TV” won’t connect to wifi, or if an iPod or computer’s battery doesn’t last as long as it should, the consumer guarantees provide a remedy.
It was during the 1980s and through to the 2000s that initial questions arose over how the law treated software. The question at this time was whether software counted as “goods”. A series of court cases found that software was considered goods only if it was supplied within a tangible object – for example, on a disk (later, on a CD or DVD).
Because of this, when consumers started downloading software over the internet they were left without many protections. If software downloaded directly from the internet didn’t do what it was supposed to do, they might have no effective legal rights at all.
In 2010, with the Competition and Consumer Act, the definition of goods was finally amended to include “computer software”. But this still excludes many common digital products, such as e-books and digital music. These do not constitute “computer software” as the law understands it.
Recent court proceedings highlight the large gap in the Australian consumer law.
In 2016, the Australian Competition and Consumer Commission brought a Federal Court case against Valve Corporation, alleging it misrepresented consumers’ rights concerning content bought through the Steam video game platform.
Justice Edelman found that Valve Corporation had supplied “goods”, being “computer software”, but also found that “non-executable data was not computer software”, and that such non-executable data could include “music and html images”.
In other words, the computer games were “goods” (attracting the law’s protection) because they were executable programs. This part of the Federal Court’s decision was not challenged in the Full Court of the Federal Court, which dismissed Valve Corp’s appeal in December 2017.
If this definition of computer software is applied in future cases, then there is a legal gap when it comes to other types of digital products. E-books and digital music (among others) require executable files to work, but aren’t themselves executable files, so would not constitute computer software.
If they don’t constitute computer software, they also aren’t goods under the law. And if they aren’t goods, consumers who acquire these digital products don’t obtain the protections and guarantees of Australia’s consumer laws.
The wider consequences of inequality in the law
Beyond this problem for consumers, this legal gap also creates an inequality for retailers. Retailers that deal in physical books and music (whether they are “bricks and mortar” or online) are required to comply with the guarantees and protections under Australian consumer law.
This means that businesses dealing in physical goods incur costs that those that sell only digital equivalents (apart from software) can avoid. Australia is in effect subsidising those who sell only digital products (many of them foreign companies) by not subjecting them to the same legal liabilities.
A simple legislative amendment can easily solve this problem. Rather than providing that goods includes “computer software”, a legal provision stipulating that goods include “computer software and other types of digital products” would capture the broader range of products we see in the marketplace today.
We can learn from the United Kingdom, where digital products are given their own dedicated consumer rights regime. The United Kingdom has a series of consumer rights applicable to the supply of goods, the supply of services, and also to the supply of digital content.
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.
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.
In 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.
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.
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.
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.
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).
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.
This new study suggests that more flexibility in the law might actually help to spur the creation of new Australian work.
Australia is a world leader in passing the most amendments to existing and new anti-terror and security laws in the liberal democratic world. Since September 11, 2001, it has passed 54 laws.
The latest suggested addition is the Turnbull government’s crackdown on foreign interference. The bill has been heavily criticised by Australian Lawyers for Human Rights, Human Rights Watch, and major media organisations for being too heavy-handed and far-reaching in the limits it would place on freedom of expression and several other civil liberties.
The government’s own intelligence watchdog, the Inspector-General of Intelligence and Security, argues the bill is so widely worded that its own staff could break the law for handling documents they need to access to do their job.
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A young woman of 23, Dorothea MacKellar (1885-1968), had a poem published in the London Spectator in 1908, titled Core of My Heart. She was the daughter of a wealthy pastoral family, educated privately, a graduate of the University of Sydney. She is said to have written the first draft of the poem in 1905 in response to the breaking of a prolonged drought on the family cattle and tobacco farming property, Torryburn, near Maitland in NSW. The poem was also written in protest against the anti-Australianism of many Australians at that time, excoriating them for their nostalgic love of English “grey-blue” landscapes and English weather.
Later, she re-titled the poem My Country and its second stanza remains the best known most quoted stanza of poetry in Australia, beginning with that belligerent, youthful and anthemic cry of “I love a sunburnt country”. She declared she could not share a love of “coppice”, “field”, “ordered woods” or “soft dim skies” because “My love is otherwise”.
She was in effect working to create not only pride at being here in such a raw and dramatic and vast place, but to make a new vernacular against the prissiness of English idioms of paradise. She even declared, defiantly, a love for the “stark white ring-barked forest” so common to Australia’s landscapes. We have forgotten how much of a rant this anthemic poem was in its time. It was a poem openly turning truisms on their head, giving a new generation its new native voice.
And of course, the poem exaggerated its argument, and opened itself to ongoing arguments over what it might mean to be in Australia, to be Australian, to find an identity in triumphant harmony with this place.
Kevin Gilbert (1933-1993), born on the banks of the Lachlan (Kalara) River at Condobolin, the youngest of eight children, found himself on the receiving end of, as he put it, “White Australia’s apartheid system”. In hospitals, Kevin Gilbert and his people were confined to verandahs and given blankets with “Abo” stamped on them. In his New True Anthem, he found his own moment of protest in the undiminished arguments over nationalism:
Despite what Dorothea has said
about the sun scorched land
you’ve never really loved her
nor sought to make her grand
you pollute all the rivers
and litter every road
Your barbaric graffiti
cut scars where tall trees grow
the beaches and the mountains
are covered with your shame
injustice rules supremely
despite your claims to fame
the mud polluted rivers
are fenced off from the gaze
of travellers and the thirsty
for foreign hooves to graze
a tyranny now rules your soul
to your own image blind
a callousness and uncouth ways
now hallmarks of your kind
Australia oh Australia
you could stand proud and free
we weep in bitter anguish
at your hate and tyranny
the scarred black bodies writhing
humanity locked in chains
land theft and racial murder …
It’s not so much MacKellar he had in his sights, for she was a fellow poet of protest, and a fellow poet in love with the land, but it was the profiteers, the racist systems, polluters and exploiters of every kind he wanted to expose. How that word “grand” has been mis-used and degraded, how far we are from being “proud and free”. No punches are pulled in this anti-anthem, and all the necessary questions are asked. Kevin Gilbert’s poem participates in the tradition of the corrective poem of insult, adopting the anthem as an anti-starting point.
Alec Hope (1907-2000) similarly used the moment of Australia’s commitment of troops to the Second World War to write his famous poem, Australia, allowing himself to speak over the top of Dorothea MacKellar to paint Australia as “drab green and desolate grey”.
Her rivers of water drown among inland sands,
The river of her immense stupidity
Floods her monotonous tribes from Cairns to Perth.
In them at last the ultimate men arrive
Whose boast is not: ‘we live’ but ‘we survive’.
A type who will inhabit the dying earth.
And her five cities like five teeming sores,
Each drains her: a vast parasite robber-state
Where second-hand Europeans pullulate
Timidly on the edge of alien shores.
There is nothing in Australia to celebrate and very little to admire in European modernism. Our only hope (Hope?), he ends gloomily, from a place we might call “love-hate”, is to remember that from such deserts as we have in abundance, prophets do come.
And now, the new voices of new poets come to this troubled tradition and make a claim to a voice, a language, an imagery that might wake us up to who we are and where we might be going. Omar Musa, raised as a Muslim, whose heritage is Irish-Malaysian, inspired by his poet father and the example of Muhammed Ali, is more famous as a novelist, a rapper, a slam performer and a You Tube sensation than as a poet to be read in a slim volume of verse.
His new book, Millefiori, is a solid and powerful and sometimes heartfelt incursion into poetry publishing, a book quickly read, but one that needs to be lived with and read over a number of times if the inner voice is to come through and the imagery work on its reader.
The longest poem in the book is Ranthem, an anti-anthemic poem in the tradition of Dorothea MacKellar’s and Alec Hope’s outspoken, youthful defiance and Kevin Gilbert’s hard won anger:
The people tell me love it or leave it. Fuck that.
How about love-hate it and stay? I’ll carry the flame.
They try to disqualify everything that I say
Cos I’m a big brown brother with an Arabic name.
They call me ungrateful and unpatriotic.
Sheeeeit! That attitude is straight idiotic.
If loving your country means wanting change for the better
That means criticizing the ugly
Side of society ASAP.
We need this kind of poetry to be published, to be happening, to be out there provoking us and projecting images of ourselves that might push us, in Musa’s phrases, to be “nuanced, shift the lens, be brave and consider again”. There might be more accomplished poets, more worthy commentators, but it’s clear that this one’s got a voice that says a lot of what needs to be said just now, and we’re interested.
Musa comes to his poems as both himself and, like Hope and MacKellar and Gilbert, as a voice made by a generation:
But do I have the right to commentate at all?
A middle-class Aussie man, that’s a lot of gall.
Cos this isn’t about me, so maybe adding my voice
Is just making the debate more cloudy …
but part of me feels it’s way worse if I don’t say shit.
You can’t help but admire the ways he catches phrases and phrasing, but you listen too to what he’s saying, hearing the reframing of the whole country going on inside those Ranthems.
As the debate continues over whether Australia Day should be celebrated on January 26, this series looks at the politics of some unresolved issues swirling around Australia Day – namely, the republic and reconciliation. And just for good measure, we’ll check the health of Australian slang along the way.
The Australian attachment to slanguage (slang language) goes back to the earliest settlements of English speakers in Australia. As Edward Gibbon Wakefield noted in his 1829 Letter from Sydney:
The base language of English thieves is becoming the established language of the colony … No doubt [terms of slang and flash] will be reckoned quite parliamentary, as soon as we obtain a parliament.
Wakefield’s observation was spot-on. The cant of the underworld (so-called “flash” or “kiddy” language) flourished in these early days. Slang had become an important way of fitting in and avoiding the label “stranger” (or “new chum”) – and, as linguist Evan Kidd confirms, it still is.
Yet, every few years there’s a furphy that our beloved “Strine” slang is doing a Harold Holt.
Reports of the death of slang downunder are total bulldust
Early in 2017, the Australian pie company Four’N Twenty expressed its concern that Australians hadn’t been “slinging slang” enough, and so launched its “Save Our Slang” campaign, aimed at promoting some 70 you-beaut, dinky-di, true-blue Aussie-isms (bloke, bogan, grouse, straya, you bewdy, and so on).
A few years earlier, in 2014, the appearance of Tony Thorne’s Dictionary of Contemporary Slang sparked a series of articles heralding the end of the golden era of Australian slang, prompted by the fact that the work had added only three new (not terribly usual, to our mind) Australian terms: tockley “penis”, ort “buttocks” and unit “bogan”).
We commonly pin the blame for the death of Aussie slang on our anklebiters-cum-adolescents and their love of seppo (short for “septic tank”, rhyming slang for Yank) slang. But it’s worth noting seppo influence has been a lexical and moral concern at least since the introduction of American “talkies” in the 1920s, as documented by historian Joy Damousi:
… that influx of nauseous American slang and vile English which regularly appears upon the screen, and threatens to reduce the Australian vernacular to the level of the New York gutter-snipe.
It’s also worth noting that some of what we consider to be true-blue slang in fact finds its origins in – hold onto your Akubra – early contact with American English.
There was an influx of Americans to the goldfields from the 1850s, and they brought with them a bunch of American colloquialisms. These included bonza/bonzer, which is probably from American English bonanza (originally from Spanish and used in the US in the 1840s for a successful gold mine).
Even waltzing – “carrying” – is probably from American slang, or at least was used at the same time and in the same way. Sure, we have records of Australians “waltzing Matilda” in 1890, but Tom Sawyer and Huck Finn were “waltzing” with this same meaning (albeit sans Matilda) in 1884.
Australian slang: like the eggs of the codfish
Some align the disappearance of Aussie slang with Australia’s maturing as a nation.
Certainly words, more than other aspects of language, are linked to life and culture, and perhaps the changes in Australian society are such that the days of the chiacking larrikin (or cheeky lovable prankster) have passed?
But it is the nature of slang that there will always be a turnover of terms – today’s cobber is tomorrow’s mate, ranga for a redhead replaces blue/bluey, bogan replaces ocker and so on.
As American writer Gelett Burgess put it in his 1902 essay, In Defence of Slang:
Like the eggs of the codfish, one survives and matures, while a million perish.
An expression that fills a need becomes accepted but, as Burgess describes:
… it is a frothy compound, and the bubbles break when the necessity of the hour is past, so that much of it is evanescent.
His own brilliant creation blurb for “a short publicity notice” was clearly one of the eggs that survived – and thrived.
We are continuing to sling slang
It seems we get so obsessed with the death of Australian English that we miss those many great terms that are being created beneath our very eyes in Australia and by Australians. Just look at the slew of recent additions to the Australian National Dictionary (most stemming from the 1980s and 90s):
… hornbag, snot block, checkout chick, houso, reg grundies, ambo, rurosexual, seppo, spunk rat (previously also spunk bubble), chateau cardboard, firie, tradie, trackie daks
And we continue to play with these terms – goon has been around for a while, but it keeps on inspiring new creations, including goon bag (1998), goon juice (2000), goon of fortune (2004), goon sack (2009), and so on.
The rhyming hoon is another great example of how language is always on the move. It’s attested as a noun in 1938 (“lout”, “exhibitionist”), but with the shift to “young hooligan, especially as a driver” in the late 80s, we see a rich proliferation of changes, including hoon as a verb (1988), and nouns denoting the act of being a hoon, including hoonery (1987), hoonishness (1993), hoondom (1998) and their weapon of choice, the hoonmobile (1994), with which they could be adjectives hooney or hoonish.
The other interesting thing about hoon is that it illustrates how one meaning can oust another. The driver sense of hoon has pushed out the pimp sense that existed alongside it from the 1950s to the turn of the century (a very rare case where a risqué meaning hasn’t won out).
So, slang continues to flourish. It’s also clear there’s no sign that we’re about to give up our shortenings – as seppo, firie and trackie daks attest, Australians still love abbreviations. And we are exporting them it seems.
Aussie contributions to world lexicon
Australian selfie was the Oxford Dictionaries “Word of the Year” for 2013 (the frequency of the word had increased by a whopping 17,000% since the previous year). Its success was astonishing – in the same year it was even crowned Dutch Word of the Year (no squeamishness about loanwords in the Netherlands).
But there are plenty of other success stories too: budgie, greenie, pollie, surfie, even mozzie are now also making appearances in global English, as are demo, preggo and muso. These join many other exports – no worries, like a rat up a drainpipe, to put the boot in, to rubbish (someone) to name a few.
Australia recently scored another global hit with Macquarie’s Word of the Year 2017, milkshake duck, “a person who is initially viewed positively by the media but is then discovered to have something questionable about them, which causes a sharp decline in their popularity”.
It’s a “patriotic pick”, as Tiger Webb points out. Coined by Australian cartoonist Ben Ward, milkshake duck not only marks an Australian contribution to the global lexicon, but also carries shades of an Australian cultural contribution: the tall poppy.
So, let’s not milkshake duck (verb) Australian slang by focusing too much on the past cultural cringe and underplaying the evolving nature of slang.
After all, it’s funny to think that at the same time as we’re complaining about Australian slang dying, the Brits are complaining about Australian language features slipping into their kids’ repertoires.
Catch up on others in the series here.
The recently released NAPLAN 2017 results and findings from the latest Progress in International Reading Literacy Study (PIRLS) have got Australia talking again about how our children are faring when it comes to literacy.
We know from PIRLS, while most Australian children are meeting international benchmarks for reading at year 4, nearly one in five are not meeting these benchmarks. Australia has one of the largest proportions of students who fall below the “intermediate” benchmark into the “low” or “below low” categories, compared to other English-speaking countries, including the US, Canada, and England.
Despite the range of steps that have been taken to address literacy levels across Australia, a large proportion of children are still not meeting international standards for reading. So what other approaches could we try?
Parents: an untapped resource
Our findings from a study of 2,600 parents showed more than half of children under two and nearly half of children aged three to five are not being read to every day.
We found, while most children were being read to by an adult in the household four to five days a week, a concerning proportion were not being read to at all or very infrequently. Specifically, 13% of 0–2-year-olds and 4% of 3–5-year-olds were not read to at all by an adult at home in the previous week.
Our research also looked at how important parents’ educational values and aspirations for their children were and how they felt about their interactions with their children’s educators. The survey has national relevance, as most of the findings relate to broader parenting issues.
Why early reading is vital
We know from decades of international research that what parents do at home with their children has a profound effect on children’s learning outcomes. Children who experience enriched, cognitively stimulating home environments are at an advantage in the learning process because they have had exposure to many more words.
The evidence in support of providing a language-rich environment to children is vast. Children with language delays at school entry are at greater risk for academic difficulties. With flow-on effects to later academic and socio-emotional challenges, the imperative to tackle language and literacy problems early is paramount.
And while older children typically need less input from parents when it comes to actually looking at words on the page, that doesn’t mean the parents’ role in supporting reading diminishes. Creating a home environment that encourages time and space for books is key.
If we know reading works, why don’t we do it?
The message that simply sitting together, opening a book, and reading and pointing to words can be incredibly helpful in building the foundations of good literacy has certainly cut through with many parents of young children.
But there are many reasons parents don’t read at home. As we know from sectors such as health, simply telling people what needs to be done – such as exercising more – does not take their personal context into consideration. Alone, it’s not enough to motivate people to adopt new patterns of behaviour.
Considering how best to support parents to read more often to their children is an important question and will depend on a thorough understanding of the barriers that are preventing them from doing so. Family and work pressures and parental confidence around reading books are some possible factors that could be further explored as barriers.
A shared concern
Children’s literacy is not the sole responsibility of parents, but it’s clearly an area where parents and schools can work together. This parent-educator partnership featured in our survey, which explored parents’ views about their interactions with kindergarten, child care and school teachers.
Most parents (92%) felt comfortable communicating with their children’s teachers. Although 21% did not think or were unsure if their child’s teacher understood their child.
Also, 20% did not agree they were able to participate in decisions that affected their child at kinder or school.
Of note, fathers tended to feel less comfortable talking with their child’s teachers than mothers did.
While 82% of parents felt their opinions were valued in discussions with their child’s educators, 11% had mixed feelings about this and 7% felt their opinions weren’t valued.
Given what we know from research about the value of parents being connected with their children’s educational settings, it follows that parent-teacher partnerships are important for children’s educational outcomes.
Consequently, it’s important issues like literacy are looked at holistically. Literacy is not just as an education system issue, and not just a parenting issue. It’s a societal issue.
Parents are ready to engage
We found the vast majority of parents (93%) see their own contribution to their children’s learning in the early years as important. This supports the view that today’s parents are generally well placed for taking on information about how to improve their children’s literacy and educational outcomes.
It’s encouraging that most children are being read to at home – even if not every day. But in the context of concerns about Australia’s position in international literacy rankings there’s more to be done.
The message to parents is clearly “read early and read often”. The message for policy makers and professionals is “support parents to better engage with their children’s learning”. This could take many forms and is dependent on context. It could include strategies such as building literacy messages and materials into existing parenting support services and promoting online resources for parents, given our survey found 79% of parents look for answers online about parenting issues.
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.
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.
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.
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.
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.
And, 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.
The results of an international study into the reading skills of Year 4 students offer reason for optimism for Australian children.
The latest Progress in International Reading Literacy Study (PIRLS) shows that, on average, reading achievement among the Australian children surveyed improved significantly between 2011 and 2016. This is excellent news.
However, there is still cause for concern about Australia’s literacy standards, with the PIRLS study showing that a substantial minority of Year 4 children continue to struggle with reading.
The Progress in International Reading Literacy Study
In 2016, 6,341 Year 4 students from 286 Australian primary schools took part.
The study focuses on two reading abilities – reading for literary experience, and reading to acquire and use information. Students were given texts to read and then asked to answer multiple choice and short answer questions. Example questions include:
How does the author show you what the red hen is like?
According to the article, what is one way people have made the sea more dangerous for turtles?
Signs of improvement
The results show Australia’s national average performance improved significantly between 2011 and 2016.
With the exception of the Australian Capital Territory, all the states and territories showed an improvement. The improvement was statistically significant in Western Australia, Queensland and Victoria.
The increase in the average scores in many states is due to better performance by students at the top end of the scale. This is a wonderful outcome for those students.
While the 2016 PIRLS results run counter to the trends in the most recent PISA and TIMSS international assessments, the improvement isn’t entirely unexpected. Recent years of NAPLAN results have shown an improvement in average reading scores for Year 3 students.
It’s difficult to draw any firm conclusions about the reason for this improvement. But it’s fair to say there has been a strong focus on early reading since NAPLAN was introduced in 2008, putting a spotlight on progress in this vital area of education.
Indeed, the PIRLS results provide a very useful external validation of the reliability of the NAPLAN results, as they report similar trends in reading over similar periods.
The sting in the (long) tail
The improvement in average scores is certainly heartening. But the PIRLS data also show that when it comes to reading, many Australian children are still being left behind.
In 2016, 6% of Australian children did not meet the minimum (low) international benchmark for Year 4 reading. This is only a very small improvement from the 2011 figure of 7%.
Some 19% of Australian children in Year 4 did not achieve the intermediate benchmark. To reach this benchmark, children needed to be able to:
- make straightforward inferences about things that weren’t explicitly stated in the text
- work out the order of events in the text, and/or
- find and repeat explicitly stated actions, events, and feelings in the text.
PIRLS describes this benchmark as a “challenging but reasonable expectation”.
In 2011, 24% of Australian children in Year 4 did not achieve this benchmark. So the figure of 19% in 2016 is an improvement. But it’s a poor outcome compared to other countries, including England, Canada, and the United States.
Despite some improvements, Australia still has the second-largest proportion of children below the international intermediate benchmark for reading among English-speaking countries.
Early identification of low progress readers
Research shows that children who struggle with reading in their early school years are unlikely to ever catch up. These children need to be identified and supported much earlier.
This year, an expert advisory panel to the Australian government (which I chaired) reviewed early years reading assessments used around Australia. We found a deficit in the assessment of phonics skills in particular.
Phonics is the ability to translate the letters on a page into their respective sounds. It’s a skill that children (and adults) need so they can read and learn unfamiliar words. Without the ability to read and learn unfamiliar words, children have little hope of reading for meaning.
Based on the outcome of the review, the panel recommended (as have other experts) a trial and possible subsequent adoption of the Year 1 Phonics Check that has been statutory in English primary schools since 2012.
In this context, it’s worth noting that England’s results in PIRLS 2016 – the first group to take the Year 1 Phonics Check – are the best they have ever been.
The Phonics Check is a quick (five-minute) and effective reading check. It’s neither stressful for children nor onerous for teachers, and provides immediate information to teachers about this fundamental aspect of literacy development.
The expert panel acknowledged that phonics is one of five essential components, alongside:
But of those five components, there is good reason to believe that phonics isn’t being taught effectively or assessed consistently in many schools. For the children most at-risk of reading failure – including those from socioeconomically or language impoverished homes, and children with learning difficulties – the consequences are devastating.
Literacy on the agenda
This Friday, Australia’s federal, state and territory education ministers will come together for the year’s final Education Council meeting. Their agenda will include the need for a national Year 1 literacy and numeracy check.
The PIRLS statistics will be thoroughly dissected and debated. But it’s important to remember these statistics represent real children.
What does it mean to be unable to read? One mother of a Year 6 child poignantly described it as “not being able read the jokes in Christmas crackers around the table at Christmas lunch”.
This should not be the case for a child who has spent seven years at school. A literacy check in Year 1 could prevent many Australian children from falling through the cracks, and facing a lifetime of disadvantage.