Fair use fairly useless for photographers

The Federal Government will soon draft legislation based on the Productivity Commission’s final report into intellectual property, which strongly recommends Australia adopt a US-style fair use and orphan works exception.

The Commission has not swayed from its position that copyright is not right in Australia. Source: PC

The Government has opened the matter to a final round of public consultation, due by February 14, before it makes its decision.

According to the report ‘Australia’s copyright arrangements are skewed too far in favour of copyright owners to the detriment of consumers and intermediate users’. Introducing a ‘system of user rights, including the well-established principles-based fair use exception’, would ‘go some way to redress this imbalance’. – That, and wildly reducing the lifespan of copyright.

The Commission’s final report was released over the Christmas holidays to reduce publicity, which is mostly critical of its recommendations. Slipping the report out at Christmas and the ridiculously short period for public consultation signal a government intent on railroading the legislation through regardless of the concerns of local creative industries.

The 752-page report argues against evidence and viewpoints provided by opponents to fair use – primarily the publishing, music, photo, and TV and film making industries. That is, just about any group involved in creating content.

‘Recent analysis undertaken by EY (Ernst & Young)  for the Australian Government assessed the benefits and costs of introducing a broad US-style fair use exception, and concluded that adoption of fair use in Australia would be a net benefit to the Australian community,’ it said. ‘While intrinsically difficult to assess, the analysis (unlike others commissioned by inquiry participants) examined the impact of fair use on Australian consumers and the broader community, users of copyright material such as schools and libraries, and rights holders.’

Another study, commissioned by inquiry participants, and undertaken by PwC Australia, made conclusions which are a stark contrast to EY’s ‘net benefit’ claim. PwC estimates Australian-produced creative works will experience a $1 billion GDP decline, particularly from small and medium-sized businesses losses.

Moreover the PwC report, commissioned by APRA AMCOS, Screenrights, PPCA, Copyright Agency | Viscopy, Foxtel, and News Corp Australia, additionally suggests litigation will rise permanently from fair use, both in the number of cases and their duration.

PwC uses Canada as ‘a case of what not to do’. Its book publishing industry has suffered a 98 percent reduction in copyright fees for authors and publishers, resulting in major closures, after it adopted fair use.

The Productivity Commission, which has a gung-ho, free market approach to society, claims the PwC report had several shortcomings.

‘Significant contextual differences exist between the Canadian and Australian publishing industries, and it cannot be assumed that the market situation in Canada would be replicated in Australia’, it says, while using Israel and the US as evidence that fair use is economically beneficial.

Another argument against Canada is that ‘there is debate about the extent to which all of the declines in the Canadian publishing sector can be ascribed to changes in Canadian copyright law’.

These unproveable ‘maybe/maybe not’ style assertions appear as substitutes for evidence by the PC  throughout the report.

Film and television association, Screen Producers Australia (SPA), said the report maintains ‘an ideological attack on content’.

‘The Commission gave little consideration to content owner’s views in its issues paper and draft report,’ SPA CEO, Matthew Deaner, said. ‘With a tin ear to the creative community’s concerns, the Commission rehashed its reckless recommendations with little revision.

‘Ultimately, the Commission idolised ideological arguments, sacrificing content at the altar of an economic orthodoxy. The report is an insult to the Australian creative communities.’

Wait, what’s fair use again?
ProCounter has extensively covered ‘fair use’. This is how the Commission describes it:
‘There are two main approaches for providing exceptions to the exclusive rights granted to creators — fair use, which relies on principles and context to determine if use of copyright material is “fair”, and fair dealing, which prescribes a confined list of purposes for which exceptions can be granted.’

Australia has fair dealing. It allows copyright infringement provided it is done for research or study, criticism or review, parody or satire, reporting the news, and giving legal advice. It’s clear-cut and simple.

On the contrary, fair use relies on courtrooms to interpret what is ‘fair’, based on ‘fairness factors’:
– The purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes;
– the nature of the copyrighted work;
– the amount and substantiality of the portion used in relation to the copyrighted work as a whole;
– and the effect of the use upon the potential market for or value of the copyrighted work.

There’s clear benefits to the likes of educational institutes – but also for those appropriating another’s work.

The AIPP’s submissions were written by AIPP board advisor, Chris Shain, who spoke directly with the Commission at a hearing in July last year.

Photographers will not benefit from fair use. The time and cost of litigation can cripple a photographer financially, as the AIPP highlighted in its initial submission.

Look no further than the Richard Prince fiasco. Photographers don’t dare enter the legal arena with Prince. He is willing to fight a long and hard battle to win. Just ask French photographer Patrick Cariou.

‘Essentially, such an exception (fair use)… would further move the balance of economic power away from photographers and towards larger and better-funded third parties,’ the AIPP wrote, later stating: ‘The Commission does not appear to be aware that the introduction of “fair use” would almost certainly lead to an open season on copyright material, as people would think that just because they think something is fair to use, it must be so.’

The Australian film and TV, publishing, and photo industry have all expressed disapproval of fair use. And so has the music industry.

‘Australian songwriters and music publishers pleaded with the Commission to temper the approach it took in its draft report and support a robust copyright framework to ensure all creators receive fair payment for their work,’ said APRA CEO Brett Cottle. ‘Instead, the Commission’s final report endorses all the recommendations in its draft report, and introduces a raft of new proposals, all of which are singularly aimed at weakening Australia’s existing copyright regime.’

It couldn’t be more clear for these industries, and more noise couldn’t have been made. From pleading with the Commission to generating media publicity. But to no avail.

Orphan works a ‘balancing’ act
The report bitterly accepts the Australian government cannot legally reduce the length of copyright, due to international treaties. However, it takes a final swipe.

‘Evidence and logic suggests copyright protection lasts far longer than is needed,’ it smugly states. ‘Few, if any, creators are motivated by the promise of financial returns long after death, particularly when the commercial life of most copyright material is less than 5 years.’

It continues to argue that ‘studies have found the term of around 25 years enables rights holders to generate revenue comparable to what they would receive in perpetuity’.

The somewhat sneaky way around the international treaties on copyright length is adopting an ‘orphan works’ exception.

‘The existence of orphan works has become a greater issue as libraries and archives have sought to make their collections available online,’ it says. ‘The Australian National Film and Sound Archive estimated as much as 20 percent of its collection is orphaned or abandoned and highlighted examples of projects that have been shelved, and opportunities to celebrate Australia’s heritage foregone, due to the time and expense of identifying the relevant rights holders.’

Under orphan works, provided a user of copyrighted material undertakes a ‘diligent search’, infringement is allowed. Of all forms of content, a digital photo is the simplest to detach from its creators rights. Strip out the metadata and it’s done.

And then it’s over to the courts to determine what entails a ‘diligent search’. A Google search? Two and an email? Three? Who knows!

Ending on a good note
A sop to photographers is the proposal to introduce a kind-of small claims court for intellectual property, based on the UK’s Intellectual Property Enterprise Court (IPEC).

‘The Commission recommends the Federal Circuit Court introduce a specialist IP list, with procedural rules similar to the IPEC. A separate small claims track suitable for self-represented litigants should provide an informal forum for low-value cases.’

Fairly useless, so far
The Commission largely ignored most creative industries affected by its recommendations, but politicians may be more easily persuaded by public opinion.

The Greens are the first to criticise the report.

‘The… report is more about establishing a protection racket for the big multinational corporations like Google than a genuine response to audience needs or investing in Australian or industry,’ Greens senator and arts spokesperson, Sarah Hanson-Young, said.

Click here to let the Government know your thoughts on the Productivity Commission final report.

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