Australian copyright reform stuck in an infinite loop

Copyright matters. It is a body of law that affects what we know, how we experience and understand the world, and what we are allowed to do with the knowledge we gain. But for most of us copyright is more of a snarl. We only know of it as a restriction that complicates how we interact with each other. It is not often experienced as regulation that helps make good new things happen.

Malcolm Turnbull’s “ideas boom”, his innovation and science agenda, is supposed to make innovation happen by spending A$1.1 billion over four years. The policy papers don’t include any mention of copyright. But copyright rules and regulations sit behind all the agendas found in the innovation statement.

So what is happening with the rules that will affect our capacity to “leap, connect, sparkle and guide” others? There is a copyright agenda underway. And in short, under Attorney-General George Brandis, there has been a lot of twitching and jerking.

Brandis did not have a clean slate. When he took his place in the Abbott ministry there was already an extensive and much needed review of copyright underway, established by the former Labor government.

Headed up by UTS Professor Jill McKeough, the Australian Law Reform Commission’s Copyright and the Digital Economy Inquiry undertook an exhaustive process to produce this final report.

Brandis sat on the final report for some time, tabling it in Parliament on February 13, 2014. The day after he gave a speech where he agreed with the problems highlighted in the report:

“The Copyright Act is overly long, unnecessarily complex, often comically outdated and all too often in its administration, pointlessly bureaucratic.”

But rather than engage with the recommendations of the report, he raised the furphy of piracy — an issue specifically excluded from the ALRC terms of reference, reserved for trade discussions conducted without public input — and then in August 2015 the Abbott government established yet another review.

The Productivity Commission inquiry into Austraia’s intellectual property system looks beyond copyright. Ostensibly there is a wide-ranging inquiry into IP laws and “incentives for innovation and investment, including freedom to build on existing innovation”.

However successive governments have negotiated away many areas of Australian IP policy in international agreements, beginning with Chapter 17 of the 2005 the US-Australia Free Trade Agreement, and more recently the 2015 Trans-Pacific Partnership. These agreements, negotiated without public scrutiny or evidence about impact, limit our capacity to determine the national interest in fashioning the balance of our IP laws.

In terms of copyright, the Productivity Commission inquiry covers much of the same ground as the ALRC: efficiency and balance, adaptability for the future and evidence based reform. In response to the issues paper 115 submissions were received. There will be another round of public submissions when the discussion paper is released in March/April 2016. So many rounds of public consultation going on, but to what end?

Among the raft of government business hidden in the Christmas break an Exposure Draft was released by the Department of the Communication and Arts (DOCA) on December 23, 2015. There is a public invitation for comment until February 12, 2016.

The background paper to the Exposure Draft notes:

“It is appropriate to proceed with the amendments contained in the Bill before the [Productivity] Commission reports as those amendments simplify the operation of the Act and are likely to be consistent with the recommendations (if any) made by the Commission.”

However the draft provisions are far from simple to follow. They completely fail to address basic issues affecting those who legally access material held in public collections. The bill is based on fantasies about how institutions work in practice and ignores the public’s experience of them altogether. Mere oversight or part of the government’s design?

For example, section 113M allows libraries and archives to make “preservation copies” of original material that is of historical or cultural significance to Australia, but they are not allowed to make these copies available to patrons except through a terminal on site. As a researcher I am not allowed to make an electronic copy of the material so I can use it in writing up my research. As is common practice in libraries I would probably be allowed to transcribe a document by hand.

However transcribing by hand is, as a matter by law, no different to a digital reproduction. Why does this law require me to spend public research money to physically attend the institution, perhaps also requiring an airfare and accommodation expenses, so I can take out my quill?

The bill sets out excessively complicated rules that allow institutions to provide material that might or might not be in copyright to researchers. The rules only apply to a limited number of institutions. The ability to comply with them is based on the incorrect assumption that collections are catalogued to the Nth degree where it is easy to determine who the author was, the date of making the work, the date of publication of the work, the date of the author’s death, relevant details of the current estate holder.

These collections have little commercial, educational or cultural value if left dead, buried and forgotten because of lousy copyright laws. Institutional purpose and the value of the collection is generated when the material is utilised, repurposed, and made to bloom again, by users of the collection.

If the “ideas boom” is to move from mediocre slogan to stimulate real “leaps” and progress so that the “brightest” can shine, there is a need for more than a redistribution of public funds to starving public institutions. Copyright law reform needs to be taken seriously as a political concern, not left as a plaything shunted from inquiry to inquiry, while other games are carried on behind the scenes.