When the Productivity Commission hits the send button next month on its final report into intellectual property arrangements, it will ignite a political and cultural debate on the protection of copyright that has been simmering for years.
Digital operators including Google, media companies, small business, authors and academics are lining up to lobby the government, particularly if the final report supports some of the Productivity Commission's more controversial draft proposals.
These proposals include replacing the current "fair dealing" model with the highly contentious and legally fraught 'fair use' exceptions model that operates in the United States; a model that allows the use of copyright material for any purpose if the use is "fair".
Another is a reduction in the copyright term from the current 70 years after death to 15 to 25 years after creation.
The stakes are high. A recent PricewaterhouseCoopers report, jointly commissioned by the Copyright Agency and media companies including News Corp, concludes that the introduction of fair use to Australia would result in a significant reduction in the production of Australian content. It estimates a loss to GDP of more than $1.3 billion and warns that based on the US experience fair use will increase legal uncertainty and litigation. It estimates this could lead to a significant increase in litigation costs from $26.6 million a year to $133 million a year.
But it is more than that. Kim Williams, the chairman of the Copyright Agency, in a powerful speech titled "Fighting for Copyright" last week, said: "Protecting copyright is absolutely central to the very things that are driving our future prosperity: creativity, invention and productivity."
He didn't mince his words. "I cannot think of another recent report that so misses the main drivers of its area of inquiry – what drives innovation? They miss what all people who run businesses know – innovation is driven by a clear operating framework, the talent of a company's workforce, their appetite for risk and the certainty that they will retain copyright in their products for a reasonable period.
"But more than this, the report profoundly disrespects all Australians involved in creative work. The people who entertain us, inform us, challenge our views about our country and make us proud to be Australian, would all lose out."
Protecting the future
Williams was talking about the next generation of stars and icons. The next Jimmy Barnes, Magda Szubanski, George Miller or Peter Sculthorpe. "All of these people, and those who will follow them, would be sacrificed at the altar of the commission's extreme ideology," he said.
The review was launched by former treasurer Joe Hockey to establish whether the system "provides appropriate incentives for innovation, investment and the production of creative works while ensuring it does not unreasonably impede further innovation, investment and access to goods and services". The regulation of copyright and the book industry formed part of that review.
There is no doubt that copyright laws need to be reviewed in light of the digital age and globalisation. But copyright is complex, steeped in politics and wraps around our national identity.
Since the draft report was released in April, 466 submissions have been received and a number of hearings have taken place.
At one end of the spectrum is the Australian Digital Alliance (ADA), whose members include Google, Ebay, Yahoo! and universities, which supports fair use and believes the current copyright term is "excessive". In its submission it makes the telling statement: "Recognising the limitations set by treaties to which Australia is a party and the virtually nil possibility of meaningfully winding back copyright terms given international constraints, the ADA advocates that the most effective way to address the excessive length of copyright at this point in time would be to introduce fair use."
At the other end is the Copyright Agency, a not-for-profit organisation that collects fees and distributes royalties to creator members for the reuse of texts and images. It believes the main recommendations for changes to the copyright system are based on a "faulty premise" that Australia's copyright system has expanded in ways that require balancing. It says the PC has misunderstood important aspects of Australia's copyright system, and has not been true to its claims that its position is evidence-based.
Indeed, Kim Williams in his speech made the pertinent point that if the Productivity Commission truly wanted to be "evidence based", it should examine the evidence of what has happened when fair use was introduced into other jurisdictions. Canada springs to mind.
"The adoption of US-style 'fair use' exceptions by Canada has slashed the payment of licensing fees by educational institutions by 98 per cent. That's right 98 per cent! It has done profound damage to that country's publishing industry, causing big-name university publishers like Oxford University Press to flee the jurisdiction, making fewer Canadian educational materials available to Canadian schools and universities."
Saving the nation's stories
That such a proposal is being entertained has prompted an outcry from many. Earlier this month the Australian book industry released #SaveOzStories, as a gift to the public. A number of authors, including Anna Funder, Peter FitzSimons, David Malouf, Tim Winton and Richard Flanagan, addressed some of the PC's proposals in a series of essays.
In his essay, FitzSimons said on a recent Thursday evening a group of authors, publishers and lawyers met in the Sydney offices of HarperCollins to discuss the controversial proposals.
He said the meeting, which included Nikki Gemmell, Jimmy Barnes and Judy Nunn, strongly opposed some of the proposals.
In a separate article Anna Funder describes the Productivity Commission's proposals as an attempt to "gut" the copyright of authors. She castigated the commission's "preferred position" that the copyright term should be 15 to 25 years after creation, not the current 70 years after death.
She rightly pointed out that any work published as recently as 2001 would be free fair game for any commercial enterprise to plunder.
"This would be to take away my ownership of my work after just 15 years. Copyright currently endures for my lifetime plus 70 years, for my children and theirs," Funder says. "The commission's proposal would mean that Stasiland, a book which won the most prestigious prize for non-fiction in the world, a book which is studied in the universities and schools in many countries, would from next year no longer be mine, nor a property for my children.
"Educational institutions, film makers and publishers in any country could just use and reproduce it however they liked and not pay me a cent."
Funder likened the proposal to borrowing money to buy land to build a block of apartments, then having them taken away. "I would not expect the government to expropriate my property at the end of 15 years. If this copyright proposal seems like a proposal for theft to you, that is because it is."
The Turnbull government has backed away from the Productivity Commission's sentiment that "copyright protection lasts too long" that "a book written today by an author who lives for another 50 years will be protected until 2136". But it is yet to reveal its hand on some of the other proposals, which could be a backdoor way of achieving the same thing.
As Williams says, it's a big economic issue, but it's more than that. "It has massive implications for our society also. Because as you all know creativity isn't just an economic need; it's a human need." Let's hope the government gets it right.
*Disclosure: Adele Ferguson is on the board of the Copyright Agency.
Autor: Adele Ferguson