Post ALRC - New World Order

An inspiring speech by Simon Lake at the recent Copyright Symposium in Sydney. Simon is the CEO of Screenrights.

Since it’s a Friday, I thought I’d start by telling you what a typical weekend looks like for me.

Last Saturday, I woke up and read The Sydney Morning Herald, The Guardian and The New York Times on my iPad. I logged on to Foxtel and watched the latest episode of House of Cards on Foxtel Go. Later, I caught up with Puberty Blues on Channel 10’s excellent app. I listened to some music on Pandora. I managed to start a new novel on my Kindle. I also had a look at recommendations for a new fridge on the Choice website.

The common theme is that all of the content I was accessing was delivered digitally, it was licensed, and copyright owners were being paid. And frankly, there are not enough hours to be able to enjoy even a little of what’s on offer.

When I listen to some of the debates surrounding the ALRC (Australian Law Reform Commission) about content being locked up, unavailable and hidden I wonder: what content, what platform? And I have to ask: what copyright owners aren’t interested in taking advantage of the new remunerated distribution models?

Last week I spoke at a conference for documentary makers. The audience was keen to know exactly what problems the ALRC inquiry was addressing. It’s a good question.

The answer I gave was that the ALRC was addressing a hypothetical question around exceptions, and came up with the hypothetical catch-­‐all solution of fair use.

If the then Attorney General asked a more practical question centered around licensing, such as “what is it that consumers want to do and can’t currently do now because of licensing restrictions”, there would have been different answers and a different set of propositions put forward.

Perhaps the debate also would have been less divisive and binary. We have always seen our licensees in education, government and subscription television as being gold standard copyright users who want to comply with the law, and do comply with the law, and we continue to have that view.

Perhaps there also would have been a different examination of the services that are on offer with the inquiry focusing on identifying licensing gaps and looking at what could be done to address those gaps.

It is interesting that the recommendations in the Hargreaves report centered around improving the licensing system as it stands now rather than, as

Professors Jane Ginsburg and June Besek describe it, proposing “the moving target” of fair use.

Here, the ALRC pushed the catch-­‐all fair use approach, even in the case of the statutory licence for retransmission – a licence that is supported by the main licensee, Foxtel, and the majority of rightsholders. In fact, the subscription operators make the point that it remains impossible for a retransmitter to obtain all the necessary rights to retransmit in advance of the broadcast. Interestingly, the ALRC recognised this in regard to the educational licence which we are pleased about, but overlooked this problem in their discussion of retransmission.

When it came to looking at the education statutory licence, there was not a single example of addressing the question of “what is it that we want to do and can’t currently do now”. And perhaps this is because teachers find the licence easy to use, and they have greater access to broadcast content than any other jurisdiction.

The education licence has also pushed the boundaries of innovation, with services such as ClickView and EnhanceTV Direct providing cloud based access to broadcast content on any device.

The current system for the use of TV in education is, by any measure, simple, flexible, innovative and fair.

I have no doubt that this is a result of our educational broadcast licence system being built from the co-­‐operation between the parties, a model that should continue to be adopted rather than rushing into fair use.

The proposed new landscape

Although we are very pleased that the ALRC has recommended retaining the Part VA licence, we believe the proposed fair use provision would undermine this system by creating an environment of uncertainty and litigation.

This, in turn, would have a detrimental impact on our filmmaker members and ultimately education.

Fair use is broad, vague and as such unfair for content makers

At the moment we have clearly defined and well understood boundaries between uses that are known to be fair and therefore free, and those that should be paid for.

What happens when those boundaries come down?

I have no doubt the limits of fair use will be tested, and fought over, constantly.

Companies and institutions will use material without permission, arguing that this is a fair use. And make no mistake the main drivers behind this reform have been large-­‐scale institutional users – not individual creators.

Copyright owners often won’t know that their work is used without their permission, or if they do, they then have to decide whether or not they want to argue for payment, knowing that this could involve lawyers’ fees and litigation.

US jurisprudence and industry guidelines

During the inquiry, Screenrights commissioned Columbia Law School under the guidance of respected copyright lawyers – Professors June Besek and Jane Ginsburg – to inquire how fair use works in the context of educational use in the United States.

Their report clearly highlighted how uncertain fair use is – with most cases going to numerous appeals, and decisions frequently reversed. It also looked at how difficult it is to negotiate industry guidelines – there’s the problem of getting all parties to the negotiating table, coming to agreement and then updating these agreements as technology changes. And at the end of the day, these agreements don’t have the force of law.

The Columbia Law School report suggested that fair use was unpredictable, with courts and advisers frequently coming to different views on the same facts. They said “any rule which privileges flexibility necessarily produces unpredictability”.

They also said that Australia should exercise caution before adopting fair use.

Swapping simplicity for uncertainty

The current system for educational use works well, is understood by all the key players, benefits creators and users of their work, and has actually been a technology driver rather than inhibitor.

Fair use will not benefit our creators – and they are the foundation of our digital economy. It will benefit institutional users of their work and tech giants who rely on indexing and using other people’s work to increase traffic on their sites to increase their value.

In responding to the ALRC we have endeavored to show that we are seeking to facilitate access, to innovate and to adapt to the changing landscape – but the bottom line is that our members should be paid for the use of their work.

Instead of the lawyers picnic that is proposed by the ALRC, a truly fair system has to have not just access – but fair payment – at its heart.

We strongly agree with the comments made yesterday by Matt Minogue from the Attorney General’s Department and Maria Pallante, the US Register of Copyrights, that the solutions to meet our licensees’ changing needs have to be developed co-­‐operatively.

We are pleased that the Attorney-­‐General George Brandis QC has spoken strongly and clearly of his support for respect for IP rights and his expectation that parties will work co-­‐operatively together.

It is a challenge we are ready to take.

We see the next steps in this process as being an opportunity to continue to work closely with all of our stakeholders to make positive and practical improvements to the operation of our copyright system for everyone.

Simon Lake's speech at the recent Copyright Symposium in Sydney. Simon is the CEO of Screenrights.

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