For the love of ideas, deal fairly

Will copyright protect Australian creators in the digital age?

Newspaper clippings Art: Ann Ding

Last week, Wikipedia sent Australians a message. Banners appeared urging viewers to sign a petition for the government to adopt the US model of fair use, which would relax Australia’s copyright laws. A Productivity Commission report released in December last year also urged Australia to move to fair use. However, publishers say the change would threaten sustainable and diverse Australian content. Creators worry their material would be used freely without credit or compensation. On the surface, an open market of information and lower costs for universities may seem like a good idea. But if universities and ‘big tech’ are paying less for content, what does this mean for creators?

Australia currently operates under a system of copyright exceptions called ‘fair dealing’. It asks users two questions: Firstly, are you using copyright material for a specific public-interest purpose, like research, criticism, satire or news? If so, is the use fair? If the use of the material satisfies both of these questions, it is not considered intellectual property theft. Under the US system of ‘fair use’, the first question is eliminated, meaning the material can be used fairly for any purpose. This makes it much easier to defend copyright infringements. Instead of leaving the decision to parliament, US courts interpret ‘fair use’ according to defined fairness criteria.

In Australia, attacks on fair dealing have saturated media coverage and been amplified by powerful allies like Fairfax, Universities Australia and ‘big tech’ like Google and Wikipedia.

“Frankly, at the moment, the law is an ass … You physically cannot get permission for everything that you might want to do with copyright material,” says University of Sydney Law Professor Kimberlee Weatherall. Weatherall sits on the board of the Australian Digital Alliance, whose members include Google and over 20 universities. Online lobbyists like the ‘Fair Copyright’ campaign, which is funded by the Digital Alliance, ardently condemn fair dealing and ‘bust myths’ about fair use. But the debate has been unbalanced.

Unsurprisingly, both sides are guilty of distorting the facts. Wikipedia claims that if it was “hosted in Australia, it would be breaking the law”. They may need new copyright advisors. Uploading content to Wikipedia does not remotely breach Australia’s copyright laws, says Libby Baulch, Policy Director of Copyright Agency, a copyright collection body. Wikipedia operates under guidelines for ‘encyclopaedic content,’ whereby contributors license the online publication of their work. This is why Wikipedia, and all of its content, is available to Australians.

Concerns over fair use are valid. In the US, fair use has been used as a loophole to infringe the copyright of authors and photographers. At a New York arts festival in 2015, artist Richard Prince reproduced other people’s Instagram posts without their permission on canvases that reportedly sold for up to US$90,000. How did he bypass copyright law? He edited out the caption and commented on the Instagrams first.

Another case is Google Books. The Authors Guild sued Google in 2013, alleging their mass digitisation of books infringed their copyright and they should be paid fair compensation. Their case was denied; the courts found that Google had met the legal requirements for fair use. These cases are evidence that courts can “lose their way” at the expense of creators, says Baulch.

The fair dealing campaign paints a somber image for Australian artists’ future under fair use. The Copyright Agency published an open letter against fair use from Aboriginal and Torres Strait Islander artists such as Jessica Mauboy and Bruce Pascoe in February. They said the Productivity Commission’s recommendation to adopt fair use “will harm the ability… to tell Indigenous stories and make a living”.

If fair use does permit creative work to be transformed without compensation, the consequences could be dire. The average annual income for an author is $13,000, according to research by David Throsby at Macquarie University. Authors rely on income from their statutory license, which is paid by Copyright Agency. Logic suggests that fewer restrictions means less money for Copyright Agency, thus less money for creators. Weatherall denies this would be the case. Yes, fair use would lower Copyright Agency’s income, but she “would be
exceedingly surprised if that flowed on and actual artists got less money”. Instead, it comes down to trusting the courts to interpret fair use fairly. Given the US’s track record, Copyright Agency would prefer to trust parliament.

But could fair use bring Australia’s tech sector into the 21st century? Adding open-ended copyright exceptions could allow ‘big tech’ companies to emerge in Australia, says Weatherall. Creators, especially visual artists, “have a lot to gain from having a vibrant tech sector right here”.

“The strongest creative industries are in the US and they operate under fair use,” points out Weatherall. “The biggest argument against the idea that publishing or creative activity will suddenly collapse in Australia if we get fair use is the United States. Or South Korea. Or Israel. Or Singapore.”

One blip on this sunny world portrait is Canada. After Canadian courts and parliament developed a ‘fair use interpretation of fair dealing’, schools and universities ended their licensing agreements with Access Copyright. They argued that their use of material fell under ‘fair use’ and refused to pay. This meant “less money going to Canadian authors, less money going to publishers,” and reduced employment and investment in Canadian content, which contributed to the withdrawal of Oxford University Press, according to Baulch and a Canadian PwC study.

Weatherall disagrees. “It’s not possible to say copyright change, then collapse of publishing. It just isn’t.” It is true that other factors underpinned the breakdown — internal reports from Oxford University Press do not cite copyright as a reason for closure and instead point to corporate restructuring. However, Canada’s case is difficult to ignore, and it is hard to believe our education sector would respond differently.

Fair use would be a big win for universities. A free market of information allows greater freedom and “more new and innovative uses of material,” says Weatherall. At the moment, universities pay around $33 per student annually for copyright material, less than the price of a textbook. This cost is not passed on to students. The worry is that universities would follow the precedent in Canada and stop paying altogether; schools have already requested a 30 per cent ‘fair use discount’ on licensing fees. Whether universities need fair use is up for debate — Baulch says their statutory license is “very broad” but Weatherall flatly disagrees. She says legal requirements to authorise every piece of content restrict online education. “There are, fundamentally, a lot of things we can’t do.”

This is true across all sectors – writers, artists and academics all need to constantly seek permission for copyright material. This “limits innovation, it limits creativity, it limits access to culture … it can’t be the case that every time you might want to do something new you have to go to parliament,” says Weatherall. By the time the Copyright Act is amended, “five years later, any company that might have wanted to do something creative has given up and gone to the states.” However to Baulch, this does not ring true.

“There’s absolutely no evidence that the current copyright regime has been an impediment to innovation in Australia … there’s a lot of rhetoric about it, but really no evidence,” she says. “Universities and schools are arguing for fair use because they want to reduce the compensation they pay,” just like “big tech companies will use a ‘fair use’ exception … to avoid or reduce licence fees”. Minor infringements, like posting a meme or using a picture of a Vegemite jar, are “trivial [things] with zero consequences.” In general, infringements have much lower consequences than in the US as Australia does not have statutory damages.

Fair use undoubtedly has its merits. At the end of the day, fair dealing is a prescriptive system. “Technologies change … but all we can do (under Fair Dealing) is list the things we know about now,” says Weatherall. Her solution — fair use purposes that are “open-ended” — have the “flexibility to deal with unanticipated uses”. Copyright Agency are still adamant that the current system is workable. They rightly point out that statutory licenses for education have coped with the introduction of LMS, electronic whiteboards and online learning, despite being established in the 1980s. While it is important to “update, modernise, rationalise” the existing framework, fair dealing is not the unworkable relic it has been portrayed to be.

So, take Wikipedia’s call with a grain of salt. Their appeal will reverberate across online media, given the powerful interests that stand to gain. Meanwhile, the bid to work within the system is on the outskirts of mainstream coverage.

One thing is clear — a thriving publishing industry ensures the diversity and sustainability of Australian content. This is a better fuel for innovation than any fair use exception.