Brandis' copyright crime and punishment

Australia’s copyright law is broken. There’s no disputing that but just how we put the pieces back together is still open to conjecture.

The Australian Law Reform Commission’s (ALRC) extensive and independent review of our copyright laws has found that despite the update in 2006, current legislation is struggling to keep pace with the changes in how content is consumed and distributed.

Redefining ‘Fair Use’

ALRC’s review presents a cogent argument for why a flexible fair use law makes sense and why the convoluted specific exemption directives should make way for a standardised framework.

While current law provides fair dealing exceptions for specific practices, the review contends that the current legislation is restrictive and should be replaced with a test that essentially provides a template to gauge whether using someone’s intellectual property is fair or is infringement.

It’s a tough nut to crack. Content creators may not like the idea of people transforming their original, copyrighted work to suit their purposes without explicit permission, but critics say that putting restrictions on fair use isn’t the solution.

Australian National University’s Dr Matthew Rimmer says the defence of fair use will help encourage innovation and competition in the digital economy, especially as emerging technologies like cloud computing and 3D printing are further embedded in enterprise and consumer space.

Dr Rimmer adds that the mooted reform will foster creativity in Australia – such as fan fiction, remix culture, and the maker movement.

“In an age of Mickey Mouse copyright term extensions, the defence of fair use will help address the growing problem of orphan works. Moreover, the defence of fair use will respond to problems of disability discrimination in Australia,” Dr Rimmer says.

However Attorney-General George Brandis isn’t quite convinced, pointing out that the fundamental principles of intellectual property law that protect the rights of content creators can’t be changed just because new media platforms are becoming popular.

“In this changing digital world, we must look for the opportunities, but in reviewing the intellectual property laws, the government has no intention of lessening rights of content creators to protect and benefit from their intellectual property,” Brandis said.

Crime and punishment

So, it’s time to bring the existing legislation up to speed but without hurting the myriad interests involved in the mix. Reconciling the interests of content creators while meeting changing customer expectations is the challenge, and the first step to a solution could be to separate the two separate issues at play.

Electronic Frontiers Australia executive officer Jon Lawrence says that debate around fair use has too often been lumped together with the issue of internet piracy.

“These are two separate issues: one is looking at how the current copyright laws can be reformed to meet community expectations and foster innovation; the other is how to stop the unauthorised downloading and sharing of copyrighted content,” Lawrence told Business Spectator.

The emotive issue of internet piracy almost inevitably overshadows any conversation on copyright reform, and unsurprisingly the reform imperative has quickly given way to a punitive approach.

Such an approach is designed to force internet service providers (ISPs) to police their customers, which pleases neither the ISPs nor consumers. 

Misplaced emphasis

Attorney General Brandis’ commitment to protecting content creators isn’t entirely out of line but the emphasis seems misplaced.

Brandis told an audience at the Australian Digital Alliance copyright forum last week that internet piracy may require ISPs to start enforcing stricter guidelines on consumers using websites to facilitate piracy.

Mr Brandis said that the government will consider possible mechanisms to provide a ‘legal incentive’ for an ISP to work with copyright owners in preventing infringement on their systems and networks.

“This may include looking carefully at the merits of a scheme whereby ISPs are required to issue graduated warnings to consumers who are using websites to facilitate piracy.”

By his own admission, the idea of forcing ISPs to become internet enforcers hasn’t been clearly worked out. Not just because the so-called '3 Strikes' enforcement hasn’t been effective anywhere in the world, but also because ISPs just won’t take on that responsibility.  

Both iiNet and Optus haven’t wasted a second making their intentions clear and Dr Rimmer says a draconian punitive initiative should not be the basis for a modern reformation of Australian copyright law.

“A discipline and punish model of copyright enforcement may threaten privacy, civil liberties, and freedom of speech," Dr Rimmer says.

Just who pays for this enforcement is the million dollar question. Given the so-called “budget emergency” that we are facing, the government won’t be in a mood to subsidise any such scheme. Meanwhile, even if ISPs were willing to police their networks, just why would they want to pick up the tab while the movie studios get their way?

The Coalition government now faces a choice – it can use the ALRC review to implement real reform or choose to find excuses to prop up legacy models that will inevitably wither on the vine.

Piracy is driven by lack of access and the traditional business model of content creators of keeping content behind locked doors has fed this industry. You can’t stop savvy customers from employing alternatives like virtual private networks (VPNs), nor shut down sites like Pirate Bay.

So how do we solve the problem? Well, giving consumers what they want at a reasonable price might be a start.