Uproar over Productivity Commission’s IP report

20 December, 2016 by Jackie Keast

The government has released the Productivity Commission’s final report into Australia’s intellectual property arrangements – the result of a 12-month inquiry. However, Screen Producers Australia (SPA), among others, have lambasted its recommendations as both “reckless” and a threat to local content.

The report said current IP arrangements “fall short in many ways” and various improvements are required. One of those areas was copyright protection, the scope of which the commission argued was presently too broad.

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“Australia’s copyright arrangements are skewed too far in favour of copyright owners to the detriment of consumers and intermediate users,” according to the report.

The commission has recommended a principles-based ‘fair use’ exception, similar to that which exists in the US. It argued this would allow Australia’s copyright arrangements to adapt to “new circumstances, technologies and uses over time”.

“Australia’s [current] exceptions are too narrow and prescriptive, do not reflect the way people today consume and use content, and do not readily accommodate new legitimate uses of copyright material,” said the report.

Copyright currently protects films for 70 years, and television broadcast for 50. While the report did not recommend changes to the length of copyright terms – to do so would need amendments to international agreements – it said there was scope to do more.

“Evidence (and logic) suggests copyright protection lasts far longer than is needed. Few, if any, creators are motivated by the promise of financial returns long after death, particularly when the commercial life of most copyright material is less than five years,” it said.

The commission said that long periods of copyright protection often resulted in ‘orphan works’ – those that were protected by copyright but unable to be used because the rights holder could not be identified.

“The existence of orphan works has become a greater issue as libraries and archives have sought to make their collections available online,” said the report.

“The Australian National Film and Sound Archive estimated as much as 20 per cent of its collection is orphaned or abandoned and highlighted examples of projects that have been shelved, and opportunities to celebrate Australia’s heritage forgone, due to the time and expense of identifying the relevant rights holders.”

The report recommended that liability be limited for the use of orphan works, as long as a user has undertaken a “diligent search” to locate the rights holder.

One of the key findings of the commission was that timely and cost-effective access to works was the best way to reduce infringement. As such, it recommended that the Copyright Act be amended to make it clear it was not an infringement for consumers to circumvent geoblocks, and that the government avoid international agreements that may prevent them doing so.

It also recommended the government strengthen the governance and transparency arrangements for collecting societies, such as Screenrights, including an ACCC review of the code of conduct.

Other recommendations included the expansion of the safe harbour scheme – which, if certain requirements are met, indemnifies ISPs from being held liable for alleged copyright infringement occurring over their networks – to cover all online service providers.

In terms of the enforcement of IP rights, the commission recommended the government introduce an IP list in the Federal Circuit Court. It should have similar features to those of the UK’s Intellectual Property Enterprise Court, including limiting trials to two days, caps on costs and damages, and a small claims procedure.

Industry criticises “threat” to Aussie content

SPA CEO Matthew Deaner said the report maintains the commission’s “ideological attack on content” and said the organisation would strongly oppose any government decision to adopt the report’s recommendations.

“The Commission gave little consideration to content owner’s views in its issues paper and draft report. With a tin ear to the creative community’s concerns, the Commission rehashed its reckless recommendations with little revision.

“Ultimately, the Commission idolised ideological arguments, sacrificing content at the altar of an economic orthodoxy. This report is an insult to the Australian creative communities.”

Deaner said an expedited court process to recover damages for infringement would be useless if there was no copyright left to protect.

“These reckless recommendations will unravel copyright’s carefully balanced incentives to invest in content, to secure international financing, to tell and sell Australian stories on screen. Without these incentives, there will be less Australian content made. We will all suffer.”

Screenrights called the report a threat to Australian content and to rights holders who wish to receive fair payment for their work.

“This so-called ‘fair use’ is based on US copyright law, and supports international big tech company interests, as a means of reducing their copyright licence fees, and in turn limiting the scope to compensate rights holders such as Australian filmmakers for their work,” said Screenrights CEO Simon Lake.

“This is a direct risk to royalties collected by the likes of Screenrights on behalf of our members,” he said.

APRA AMCOS said that the report was a “blunt attack” on Australia’s creative industries, “unashamedly promoting the interests of those who exploit Australian content over those who create it.”

“Australian songwriters and music publishers pleaded with the Commission to temper the approach it took in its draft report and support a robust copyright framework to ensure creators receive fair payment for their work,” said CEO Brett Cottle.

“Instead, the Commission’s final report endorses all the recommendations in its draft report, and introduces a raft of new proposals, all of which are singularly aimed at weakening Australia’s existing copyright regime – the economic framework around which Australia’s creative industries are built.”

Greens say report a “protection racket” for multi-nationals

The Greens have hit back at the report’s copyright recommendations, arguing they do not protect artists.

“The Productivity Commission’s report is more about establishing a protection racket for the big multi-national corporations like Google than a genuine response to audience needs or investing in Australian jobs or industry,” said Arts spokesperson Senator Sarah Hanson-Young.

“The Greens will consult with stakeholders on the recommendations of the report and we will consider carefully the details of any legislation put forward by the government. I urge the Minister to consult widely and fairly with Australian creative industries before any attempt to throw artists and creators under the bus.”

The government has opened up the report for final consultation until February 14. It will then deliver a response mid year.

Read the full report here.

 

 

 

 

 

 

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