Image: Cloudstreet, the Foxtel production, might be worth nothing to Tim Winton under new copyright laws.
​Deborah Stone writes:
Australian writers are currently fighting two big battles: one on import restrictions and one on copyright.
The import restrictions battle results from a plan to remove parallel import restrictions, forcing Australian publishers to compete directly with cheaper imports, in accordance with the recommendations of the Harper Review into competition policy.
Read: Cheaper books, squeezed writers get government nod.
The copyright fight results from the recommendation to replaced current copyright laws with a ‘fair use’ provision, a move proposed Australian Law Reform Commission and recently backed by the Productivity Commission.
These changes could see an end to educational licensing. The Commission also recommended copyright end after between 15 and 25 years of a work being produced.
Read: Creatives will lose default copyright under government recommendations
Read: Productivity commission drops copyright bomb
The copyright changes would replace the ‘fair dealing’ provisions with a US style ‘fair use’ regime’.
But what are the practical results for writers? At the launch of a new book on the subject Writers and Copyright, Adam Suckling, the Chief Executive of the Copyright Agency gave the example of Tim Winton’s modern Australian classic Cloudstreet. Published in 1991, the book has been a high school curriculum text for more than two decades and was just this year produced as an opera.
Adam Suckling writes:
The Cloudstreet Example
Cloudstreet, as you will all know, is a towering, sprawling novel with the most wonderfully drawn characters in the Lamb and the Pickel’s families. It has regularly been voted Australia’s most popular book, it won the Miles Franklin and is widely recognised as one of the finest Australian novels of our time.
But Mr Winton, along with the Lambs and the Pickels would all be taken to the slaughter-house, in the Commission’s ‘first best’, as economists say, brave new world. Tim Winton would lose his rights to the book he wrote, after 15 years.Cloudstreet was published in 1991, which means he would have no rights to it after 2006.
So Foxtel, who made a wonderful six part series of the show in 2011, would not have had to get Mr Winton’s permission to adapt his book, or paid him for it.
Not, I should say, that Foxtel had any issue with paying for copyright given they recognise that the whole eco-system of investing in Australian content relies on an effective copyright regime. I know this as I worked there – and Foxtel spent over $600m per annum on Australian content, all underwritten by effective copyright laws.
My point is, anyone could have taken Mr Winton’s creation after 2006 and done whatever they wanted without asking him or paying him, in the Commission’s world.
Google, Netflix who ever – could just have taken it.
Further, in this brave new world, universities and schools would be able to copy thousands of pages of his book for their students without paying Mr Winton or his publisher a cent.This would occur from the day that the book was published.
And international publishers would be able to dump remainder copies of Cloudstreet in Australia – for which Mr Winton would get a lower royalty than from a local publisher.This would also occur from the day the book was published.
So no money from broadcast rights. No money from education institutions. Less money from his international publisher. And much less money flowing to Australian companies that create Australian stories.
Fair dealing versus fair use
Fair dealing essentially says that if you want to use someone’s copyright material you need to ask their permission and possibly pay for this use, unless the use falls into a number of exceptions. If the use falls into an exception you do not have to seek permission. The exceptions are for things like research and study, parody and satire and reporting.
Fair dealing then, seeks to strike a balance between protecting the rights of creators and also allowing for the dissemination of material where there is a social benefit.
The Commission has recommended that this clear, well-understood regime be replaced with a new US style approach called ‘fair use’.
Fair use does not have clear exceptions, but says that copyright material can be used without permission so long as this use meets certain broad principles.
The advocates of fair use say that this ‘principles based’ approach means it is technologically neutral and therefore suited for a world of on-going technical change.
Fair use, they say, also allows for innovations because companies can take copyright material and use it, without permission or payment, to create new products to benefit consumers.
The problem with fair use – is that it is not fair.
What it actually has meant in practice is that large companies and institutions who previously needed a licence to use copyright material, do not need a licence for use of this material.
So the first problem with ‘fair use’ is it would strip millions of dollars away from Australian storytellers and content creators because governments, companies and large education institutions, who now pay to use content, would stop paying as much or stop paying at all.
The professional services firm, PriceWaterhouseCoopers examined what happened in Canada when similar changes were made in 2012. Universities and schools refused to pay for the educational content they used.
This led to a 98 per cent reduction in licensing revenue, the closure of many publishing operations and a loss of jobs. For instance, Oxford University Press stopped producing Canadian textbooks for schools.
Secondly, ‘fair use’ would permanently lift legal costs in Australia because the exception is so broad that copyright infringement cannot be easily defined. US copyright cases are almost five times the volume of cases in the UK, whose law is comparable to ours.
So it would be good for lawyers, but bad for creators and consumers.
Thirdly, ‘fair use’ would undermine our effective and fit-for-purpose licensing system which allows Australian teachers to share and copy every book, magazine, image or journal published in the world, with their students, for less than the cost of a single book each year, paid by school departments students.
None of this means that we shouldn’t continue to update our Copyright Act, as I said at the outset.
Industry-led reforms to the Act are already well advanced and there has been unprecedented collaboration between rights holders, libraries and education institutions on this.
So we’re aiming for sensible reforms which balance the incentives and protections for creators, with the rights of consumers to access wide-ranging material on fair terms.
