Attorney-General George Brandis is at loggerheads with Communications Minister Malcolm Turnbull over proposed reforms to the Copyright Act. Brandis wants ISPs to take more responsibility for copyright infringement by their users. Turnbull says that they shouldn’t be required to police their subscribers' activities. Here’s how to understand what’s at stake in the debate.
Dan Hunter is a Professor of Intellectual Property and Innovation at Queensland University of Technology, and Nicolas Suzor is a Senior Lecturer, Faculty of Law at Queensland University of Technology. This post originally appeared on The Conversation.
Of all the reasons given to strengthen copyright law, the one that seems strongest is the moral argument by musicians, authors, artists and other creators that the internet is taking away their livelihood.
It is incredibly hard to become successful as an independent artist.
The majority of Australians who identify as professional artists earn less than $10,000 per year from their primary creative activity. Artists need to work second (and third) jobs to fund their creative work. Even then, their average income is less than both professional and blue-collar workers.
Unsurprisingly, then, many artists support stronger copyright laws. Everywhere we look, Australians are downloading creative work without paying for it. Music industry executives like John Ferris, Head of Licensing at Ministry of Sound Australia, point to the massive profits of Google and YouTube, and bemoan the tiny royalties that artists receive in the digital age.
Elsewhere, John Birmingham, author of He Died with a Felafel in His Hand, notes that the writers who started with him have all fallen by the wayside. He is the only one left from his cohort. He blames the internet and rails against those who don’t respect creators and who use copyright works without paying. Birmingham frames this as a simple failure of decency.
Artists and their representatives are right, of course: it is unfair that artists and creators can’t make a living from their art. Society probably would be a better place if creators could spend all day writing great novels and great songs, and not have to support themselves in other ways.
But it’s always been like this: Beethoven taught piano to the children of nobility, Bach earned his keep as an organist and choirmaster, not as a composer. The old joke about barkeeps and waitstaff being mostly underemployed actors and authors is a cliché because it has always been true.
Making copyright stronger won’t help
Unfortunately, making the copyright system more draconian by making ISPs liable for actions of their users almost certainly won’t help artists.
Copyright helps large producers and distributors in film, television and publishing industries. An individual artist is still more likely to win the lottery than make the big time. Those artists who do win the lottery win big – and those who don’t have to take other jobs.
Making copyright stronger is not going to fix this structural problem.
Since the 1990s the copyright system has been made more and more onerous – but most artists haven’t been getting any richer. Each one of these reforms has failed, and the new proposal is almost certainly going to be a bust. The government could impose the death penalty for copyright infringement and it still would not create a future where the bulk of people who want to be independent artists can reliably make a good living from their work.
Higher internet prices, greater costs for providers
At the same time, the current proposal will impose costs on communications providers like ISPs, search engines and cloud computing providers, as well as the everyday consumer.
Compliance costs and liability risks will drive some providers offshore. They will also increase the cost of internet access for everyone. This is, at heart, why Malcolm Turnbull disagrees with the Attorney-General.
The question is whether the possibility of greater protection for creators is worth the cost to our communications infrastructure. The answer depends on your perspective.
From the perspective of successful authors and artist representatives like Ferris and Birmingham, enhanced copyright protection is probably a good idea. There is no downside for them. They succeeded in the old media environment, and the Brandis proposal means that they may be able to hold on to that success for a while longer.
The internet enables creativity
But from the perspective of the national interest, the proposal is a bad one. Harming the communications infrastructure is a bet against the future – and against those newly emerging creators who don’t follow the model of the past.
The internet makes it easier than ever before to be a creator and to build an audience for your works.
Some of these creators are being paid for their efforts – and some aren’t in it for the money. It’s not an exaggeration to say that we’re living in a Golden Age of Creativity, even if creators who won under the old media model are suffering.
As for professional creatives, things really aren’t all that bad.
Becoming a successful independent artist is still a worse bet than the lottery. But for the much larger group of artists working in arts industries and the even larger group of creatives working in other industries, wages and job satisfaction are actually substantially higher than the national average.
Some artists can’t adapt to the new environment. The good news is, there are many other ways to support artists other than via copyright-driven revenue: more investment in arts grants, better prizes, or other public subsidies.
The constant upward ratchet of copyright isn’t going to make any difference to these artists. It’s just going to hurt the infrastructure that we now rely on.
John Birmingham calls us “freetards”. But, in arguing against the Brandis proposal, we think that it’s important to look at the interests of all Australians, not one small set of special interests.