Fair use fight gets ugly

The Age economics editor Peter Martin has criticised The Copyright Agency for creating a $15 million ‘future fund’ to fight proposed changes to copyright law, such as the introduction of a ‘fair use’ exception to copyright infringement.

Peter Martin highlights that the development of the Google search engine wouldn’t be possible in Australia due to copyright law. Source: SMH.

The Copyright Agency (CA) is a government-mandated copyright collection agency, which receives fees from schools and universities, among others, for ‘orphan works’ – works that have been separated from their authors. It holds onto the fees for four years, and then distributes them to content creators including photographers and authors if they can be found.

However Martin reports it has been funnelling this money into a fund, which the agency told him has been set up to ‘support member advocacy, run any legal cases that would arise as a result of changes in legislation, and cover operating costs while the law remains unsettled and where there had been a reduction in licence fees’.

The fund has financed initiatives to lobby against recommendations from the Productivity Commission, which is pushing the Federal Government to water down copyright protection.

Google and education institutes team up
The funding was accumulated from 2013 to 2016, and Derek Whitehead, chairman of the lobbyist the Australian Digital Alliance, has accused the Copyright Agency of not paying members during this period.

‘As far as we can determine, since 2013 no author or publisher has received any payment at all from the funds received when universities and schools copy orphan works,’ he told The Age.

The Copyright Agency states it distributed $465 million since starting the fund.

The Australian Digital Alliance is a strong supporter of ‘fair use’, and Whitehead has a vested interest in damaging CA’s credibility.

Its membership consists mostly of universities and education institutes. And then there’s Google and Redbubble. All parties heavily invested in seeing fair use introduced.

Fair use permits copyright infringement provided the offence is ‘fair’ by meeting a number of ambiguous factors. In the US, fair use has been used as a legal loophole to infringe some photographers’ copyright. Australia currently has fair dealings, which prescribes a list of purposes which permit copyright infringement, such as using material for research or study, review or critique, or reporting the news.

CA chairman, Kim Williams, says the Alliance is simply a lobby group, advocating for its members’ interests.

‘There is nothing wrong with such groups putting forward their views. But they should be taken for what they are,’ he wrote in a column for Fairfax, in response to Martin’s piece.

An update from Copyright Agency CEO, Adam Suckling, provided background to why it needed the fund.

While access to learning resources for universities and libraries has been presented as the virtuous rationale for introducing fair use, Suckling highlights how large tech companies have bankrolled government lobbying to weaken copyright law in Australia and elsewhere.

‘In light of the catastrophic changes to copyright law in Canada and the substantial resources that some large technology companies and others have dedicated to lobbying to have our copyright laws relaxed, our board set up a future fund in 2013 to support members’ interests,’ he said.

During the funding period four research reports have been commissioned or co-funded by CA.

Understanding the Costs and Benefits of Introducing the ‘Fair Use’ Exception, a Pricewaterhouse Cooper report funded by the Copyright Agency along with APRA, Viscopy, News Corp, Screenrights and others, is an instance of how the fund was used.

The report countered the Productivity Commission’s insistent claims that fair use would be good for Australian content creators. It found the opposite – that small businesses would struggle to protect copyright, possibly leading to a $1.3 billion hit to the economy.

The report examined Canada’s economic loss after implementing fair use – a case again echoed by Suckling in his statement this week (May 2):

‘The future fund is there to ensure there is a footing for the Agency to continue operating and provide a source of funds for litigation and advocacy in the event the government proceeds along the lines of the Productivity Commission proposals,’ he said. ‘You may recall that revenues to copyright owners declined rapidly in Canada by over 90 percent when similar proposals were adopted, having a detrimental impact on Canadian publishing and the prospects for writers and publishers there.’

The report has been ammunition for many businesses, organisations and individuals arguing against fair use in submissions to the Productivity Commission.

In the Fairfax article, former CA director Peter Donoughue – now a critic of the agency and working as a university professor – called the fund outrageous.

‘It’s a reactionary stance,’ Donoughue said. ‘Extracting millions from publicly-funded schools and universities for the copying of orphan works has always been wrong. The owners are untraceable. The money should have been returned to the institutions it was taken from. To think it’s been siphoned into a “fighting fund” against those institutions is outrageous.’

CA points out that educational institutions aren’t the enemy. It’s the large tech companies like Google, which strategically joined the Australian Digital Alliance to use the noble ‘fight for universities’ as a smokescreen for its own commercial objectives.

‘The agency strongly supported recent changes that simplify the education licence provisions, make it easier for libraries to exhibit material and enhance access to copyright material for the visually impaired,’ Williams wrote.

Based on Martin’s selection of sources in his article – two supporters of the Productivity Commission recommendations – it’s clear he’s picked a side. But this becomes more evident in his other work.

A handful of his articles have the headlines: ‘Schools and universities are charged millions for things that are free’, ‘Our copyright laws are holding us back, and there’s a way out’, and ‘Copyright denies millions proper access to books: “Fair use” would fix it’ – in which he outrageously compares current copyright law to Hitler’s Germany and Mao Zedong’s China.

While Martin is the economics editor of The Age first and foremost, his website indicates his long relationship with the university system. He’s worked as a journalist for Melbourne University in 1996, is a Distinguished Alumni of Flinders University, and co-authored four economics textbooks for the university system.
-Will Shipton


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