Copywrong: Why The Fair Use Copyright Reforms Won't Pass The Parliament

Parliament’s a funny place. And by funny I mean disparaging to the human soul. Almost everyone is out for numero uno, and industry interests and partisan politics often seem to trump the so-called “national interest”. It’s for this reason that the recent recommendation to install Fair Use prescriptions into the Copyright Act 1968 has a snowball’s-chance in hell of passing through the current Parliament. Let me explain why.

Image: Quinn Rooney/Getty

Yesterday, the Australian Law Reform Commission completed an historic, 18-month long review into the Copyright Act 1968. Their job was to find if the law was relevant for today’s society, which it pretty much isn’t. One of the headline recommendations is to install Fair Use prescriptions into the Copyright Act.

Fair Use clauses basically allow people to sample or transform an original, copyrighted work for the purposes of comment, criticism or parody. This can all be done without getting the explicit permission of the original copyright owner, so you can’t be sued for infringement under Fair Use for doing something like creating a meme and sharing it on Facebook as a simple example.

It’s tough to define what “fair use” really is, and hundreds of hours have been spent arguing back and forth in courtrooms about its definition. That’s the beauty of Fair Use: because lawmakers don’t want to limit what could be Fair Use in a society where everything is being remixed, remastered and redistributed every second of every day, nobody wants to put a hard and fast limit on it.

As long as you don’t take revenue away from or harm the producer or her work, then you can argue Fair Use. It’s open to legal interpretation. Check out the video above for a more digestible explanation.

The man ultimately responsible for the passage of these new law reforms will be the new Attorney-General, George Brandis.

One of the things you may not know about A-G Brandis is that he’s particularly interested in protecting the individual rights of content creators, given the fact that they contribute a huge amount of money to Australia’s gross domestic product every year. The same figures are reported over and over by politicians and content industry executives alike: the industry contributes 6.6 per cent of Australia’s GDP at a value of around $93 billion a year, while employing 900,000 people, or 8.8 per cent of the total workforce in this country.

It’s all well and good for them to contribute to the economy, but what’s more interesting is that these content creators have started donating heavily to the Coalition in recent months. Village Roadshow, for example, topped the content inudstry donor list in 2013 by donating over $300,000 to the Liberal Party.

Other creative industry heads have also recently come out in praise of A-G Brandis for his desires to “safeguard” their intellectual property from clauses like Fair Use. Creative industry heads like Dan Rosen, the head of the Australian Recording Industry Association (ARIA). A recent op-ed in the nation’s Liberal Party newsletter, he said that it was “encouraging” to have an Attorney-General on the side of the content industry:

This is not about protecting old and outdated business models, or stifling innovation. On the contrary, if we want our businesses to innovate so that they flourish we need to enable them to earn sufficient reward for their online investments. It is encouraging that we have an Attorney-General and Arts Minister who shares this view.

Furthermore, A-G Brandis himself has consistently come out swinging against any amendments to the Copyright Act 1968 that would soften it in any way as to give up rights once held by creative industries.

Before the report was even released to the public, A-G Brandis was taking alley-oop questions in the Senate about the Australian Law Reform Commission’s upcoming recommendations, saying that the internet hasn’t changed a damn thing when it comes to copyright (emphasis added):

, I want to reaffirm the government’s commitment to the content industries. It is the government’s strong view that the fundamental principles of intellectual property law…have not changed merely because of the emergence of new media and new platforms. The principles underlying intellectual property law and the values which acknowledge the rights of creative people are not a function of the platform on which that creativity is expressed. The principles did not change with the invention of the internet and the emergence of social media. So in this changing digital world, the government’s response to the ALRC report will be informed by the view that the rights of content owners and content creators ought not to be lessened and that they are entitled to continue to benefit from their intellectual property.

He said that part about the internet not having any effect on the need to update the Copyright Act not once, but twice throughout his ongoing answers, and it continues to inform his rhetoric on the subject. (You can read more here on page 990 of Senate Hansard for 5 December, 2013)

Even when tabling the report in the Senate yesterday, A-G Brandis once again tempered his language through the lens of the creative industry’s best interests (emphasis added):

These recommendations will no doubt be controversial and the Government will give them very careful consideration. We are particularly concerned to ensure that no prejudice is caused to the interests of rights holders and creators, whether the proposed fair use exception offers genuine advantages over the existing fair dealing provisions and that any changes maintain and, where possible, increase incentives to Australia’s creative content producers.

Australia’s creative industries are not just a vital part of our culture, they are also a thriving sector of our economy. The Australian screen production industry, for instance, contributes $752 million and directly employs 13,000 people in full-time work. Our music industry contributes $1.2billion to our economy and directly employs 15,000 people in full-time work.

But those who create the great Australian films, the great Australian television dramas, the great Australian albums, depend upon robust intellectual property laws to protect their creative endeavours. Just like any other workers in our economy, they are entitled to the fruit of their efforts.

Without strong, robust copyright laws, they are at risk of being cheated of the fair compensation for their creativity, which is their due.

As I know from my many discussions with members of the industry, they are looking to the Government to ensure that their interests are protected, and this, the Government will do.

I want to reaffirm the Government’s commitment to content industries. Not only do they contribute to our economy – they build a culture of innovation and artistic endeavour in Australia.
It is the Government’s strong view that the fundamental principles of intellectual property law that protect the rights of content creators have not changed, merely because of the emergence of new media and platforms.

The principles underlying intellectual property law and the values which acknowledge the rights of creative people are not a function of the platform on which that creativity is expressed.
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.

There’s that quote again: the internet hasn’t done a damn thing to change Copyright law according to our Attorney-General. That’s not how the head of the Australian Law Reform Commission’s Copyright review sees it.

Professor Jill McKeough, the Commissioner of the Inquiry into Copyright and the Digital Economy, said that Fair Use is “crucial in the digital economy”.

“Fair use can facilitate the public interest in accessing material, encourage new productive uses, and stimulate competition and innovation. But fair use also protects the interests of writers, musicians, film-makers, publishers and other rights holders. It was very important that in an inquiry about exceptions to copyright, we not lose sight of the purpose of copyright law,” she added.

When asked directly whether Fair Use or any of the other recommendations would be ignored by the government, the Attorney-General’s department has told us that they won’t pre-empt the discussion by ruling on what’s in and what’s out for the reforms, I think we can all see where this particular puck is going, even without mentioning the fact that the Trans-Pacific Partnership is going to swing in like a proverbial copyright wrecking ball in the coming months.

Sorry, Australia. You were so close.

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