Copyright changes would turn film and TV into a “cottage industry”: SPA
15 February, 2017 by Jackie Keast
Last December's Productivity Commission report into intellectual property arrangements suggested that Australia's copyright terms were too broad, and favoured copyright owners to the detriment of consumers.
Industry bodies such as Screen Producers Australia (SPA) and Screenrights criticised the report, arguing that many of its recommendations – such as Australia adopt a 'fair use' copyright exception similar to that in the US – were a threat to local content.
After the report's release, the government invited further consultation from stakeholders ahead of its own response, the deadline for which closed yesterday.
In its submission to government, Screen Producers Australia (SPA) outlined its ongoing opposition to both fair use and the finding by the commission that the term of protection is too long. SPA also opposes the recommendation that circumventing geo-blocking should not be considered an infringement of copyright.
“Put simply, if the commission’s recommendations on copyright were implemented, the Australian film and television sector would go from an internationally renowned industry producing films like Lion and Hacksaw Ridge and television programs like The Kettering Incident and Glitch, to a cottage industry overnight,” said SPA.
“The recommendations relating to fair use, safe harbour and geo-blocking would undermine the international financing and distribution of films and television content and reduce the capacity for content owners in films and television to protect their work online.”
SPA criticised an appendix in the commission’s report which said that many of the benefits expected to flow from the proposed reforms "particularly those arising from changes to copyright laws" were private or non-market. SPA argued that such benefits would be enjoyed by consumers, multinational tech companies and educational institutions at the expense of creators and content owners.
The organisation also expressed concern that the commission took just 12 months to conduct the wide-ranging IP inquiry – which also looked into patents, trademarks, circuit layouts and plant breeders’ rights.
“From the perspective of tight timeframes and limited resources, it is perhaps unsurprising that the Productivity Commission cherry picked recommendations from previous reports without new analysis or substantive supporting evidence,” SPA said.
Further, it said the commission's approach to evidence "left a lot be desired", stating it had rejected the arguments from content creators while "uncritically and unquestionally" accepting those from multinational companies.
In particular, SPA’s submission argued at length against the PC’s recommendation that the Copyright Act be amended to prohbit contracting out of copyright terms, and allow consumers to circumvent technological protection measures (TPMs), such as encryption measures, for legitimate uses of copyright material.
SPA argued this would make Australian contract law inconsistent with major trading partners, and pointed out that the PC had not set out how it proposes to deal with contracts not subject to Australian law – especially given that licences for audio-visual content are increasingly multijurisdictional and global.
According to SPA, any changes would mean increased uncertainty and higher transaction costs for licensing internationally. They would also give unfair bargaining power to institutional users of copyright material – such as universities or libraries – in negotiating licence fees for film and TV, especially if combined with 'fair use'.
That uptick in bargaining power would remove the need for institutions to directly licence with copyright owners would be "unacceptable," said SPA.
“This would eliminate an important source of revenue for producers from distribution arrangements, which would expose the independent production sector to great risk.”
SPA also argued against allowing users to circumvent TPMs, noting their importance in the digital environment.
"For example, a SVOD service might licence a film from a producer. Part of that licence between the streaming service and the copyright owner will contain obligations on the streaming service that it will adopt measures to limit the potential for unauthorised use of the content by subscribers and third parties or prevent downloads. The streaming service will give effect to this obligation by using a TPM.”
But if consumers could then circumvent the TPM, argued SPA, the value of the licence would be undermined.
The government has said it will release its response to the commission's report “in due course”.
Read the Productivity Commission’s full report here.