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.

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.

Australian copyright reform stuck in an infinite loop

19 January 2016 by particularkev

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.

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.

Your Questions Answered on open access

24 October 2015 by particularkev

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.

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.

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

15 October 2015 by particularkev

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.

Catherine Bond, Senior Lecturer in Law, UNSW Australia

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