Thursday, December 15, 2016

Our copyright laws are holding us back, and there's a way out

Imagine a land in which everything was outlawed, except for the things that were specifically allowed. Things would more-or-less work, until you tried something new.

It would be illegal at first, perhaps for years, until the parliament got around to permitting it. This slow-moving land (which we'll call Australia) wouldn't stand a chance against competitors that could move quickly.

For the most part, we're not like that. We outlaw killing, rather than specific methods of killing. We permit the earning of income, rather than the earning of income from specific activities. Our laws are based on principles rather than prescriptions.

Except for copyright.

Google couldn't have grown up here because our copyright laws didn't explicitly permit the copying and indexing of the web. Video cassette recorders couldn't have developed here because our laws didn't explicitly allow home taping. Dr Rebecca Giblin of Monash University says if VCRs had been introduced here first instead of in the US, "rights holders may well have succeeded in suing them out of existence".

In the US, Google and Sony were able to rely on "fair use". The law there allows copying so long as it is fair, taking account of what's copied, the purpose for which it is used and whether or not it harms the market for the original work. It's based on principles rather than specifics, which means it copes with change.

In Australia, it's full of specifics. New activities are presumed to break the law until Parliament gets around to changing it, which can take years. Parliament didn't get around to legalising home taping until 2006, decades after the arrival of the video cassette recorder. You are now allowed to copy music from your CDs to play on another device, but only if you own that device. If your phone is leased on a contract, or your tablet is owned by your employer, your copies infringe copyright. You are allowed to take a photograph or scan of a newspaper, but only if afterwards you read only from the photograph or scan and not from the original paper. If you've complied fully with almost 600 words of dense text and succeed in making a legal copy but then lend it to a friend, that's no dice, even though you would be perfectly entitled to lend the paper to the friend.

The law obsesses about details, but never asks the most important question: is what's proposed fair?

Schools are also penalised for attempting to use new technologies. It's legal for them to use small amounts of copyrighted material in printed exam papers, but not in ones they email or put online. For universities attempting to compete with those in agile countries such as Israel, Singapore and the United States, it's a serious restriction. Universities Australia says its members typically spend between 1250 and 1740 staff hours seeking copyright permissions their competitors don't need to.

Like other Australians they're not even sure they can legally back up what they own. Backing up is essential in the age of computers but it involves the making of copies which can be charged for.

Five major inquiries have recommended that Australia future-proof its law by moving to the US system of fair use, as it probably should have as part of the US-Australia Free Trade Agreement.

Shortly, there'll be a sixth. The final report of the Productivity Commission inquiry into intellectual property will come with a detailed analysis from Ernst & Young that eviscerates work done by the main copyright collecting agency on the costs to the Australian economy of adopting fair use.

There would certainly be costs to it. Records tendered to the inquiry by Australian schools show the Copyright Agency is billing them millions of dollars for the display of materials that are freely available on public websites including tourism maps, health fact sheets and the homepages of institutions such as the Commonwealth Bank.

And they are are hit up for the use of so-called "orphan" works for which there is no longer an identifiable owner. The Copyright Agency, a government-mandated collection body, takes the money, holds some of it in case the owner ever comes forward, and distributes the rest to the owners of other works as a windfall, creaming off a generous amount for administration.

Australian schools say they pay 10 times more per student to use copyrighted materials than schools in New Zealand.

Students are entitled to copy small portions of copyrighted works for study – it's a right protected under a clunky alternative to fair use known as "fair dealing". But a quirk in the law means that if a teacher asks the students to make the copies, or presses the button on the photocopier, the school has to pay for them.

You're going to hear a lot in coming weeks about how "fair use isn't fair". That's impossible, by definition, because under fair use, if a use isn't fair it can't be permitted. What a switch towards it would do is move our law away from niggardly technology-specific details towards the one simple principle that's used in the countries that are getting ahead: whether, in all the circumstances, a use is fair. It'd be our entry ticket to the modern world.

In The Age and Sydney Morning Herald