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Fair use, or free use? Behind the interests and alliances that stand to gain from changes to Australia's copyright law

A screenshot from the video ‘Creationistas – Australian Copyright Is Broken’. By the Australian Digital Alliance

(DISCLOSURE:Chris Pash, Business Insider’s business editor, is a member of the board of directors of the Australian Society of Authors and of the Copyright Agency, and is a former director of PANPA, the newspaper industry group. He also receives royalties for copyrighted written material he owns.)

Lobby groups behind a high profile campaign on Wikipedia urging a switch to US-style copyright law in Australia have links to interests, including multinationals such as Google, which will gain substantially from any change to a so-called “fair use” system.

The links are undeclared when Australian visitors to Wikipedia are asked to email their local federal member of parliament.

Users are taken to another website where the copyright of the content on that site is claimed, not with the usual Wikipedia Creative Commons notice, but jointly by Electronic Frontiers Australia and the Australian Digital Alliance.

The ADA is a lobby group whose members — universities, the education sector and multinational technology companies — stand to gain tens of millions, or even hundreds of millions, of dollars from a change to “fair use” from the current regime.

The second group, the not-for-profit EFA, has accepted “substantial” funding from global tech company Google, which stands to gain from changes to copyright law that would make it easier for commercial interests to use content without asking for permission.

Also a key player is the National Library of Australia, a publicly funded statutory body. It is a member of the ADA. The alliance has an office within the library building in Canberra.

This campaign to change copyright law is commonly pitched from a premise that Australia is inferior to tech-savvy US where there is a system called “fair use”.

In the current debate, the surface message is everyone will benefit if content can be used without permission and for little or no payment. The underlying truth is some big players stand to gain significantly, to the cost of content creators.

“Fair use” essentially means being able to use anyone’s content as long as it’s “fair”. However, “fair” is a highly technical legal concept which has many definitions. Even in the US, where it’s in use, there are different views on what “fair” means.

Federal cabinet is expected to this month debate a proposal from the Productivity Commission to switch to “fair use”.

The campaign for a more liberal copyright regime is being prosecuted by organisations with interests and potential benefits from the changes they seek — including Australia’s universities and schools.

The universities stand to save at least $30 million, the amount they paid in copyright fees last year, and schools more than $60 million. (This represents about $16.93 paid per student per year paid by education departments to cover all copyright usage and no administrative burden for teachers.)

These interest groups, not for profits, businesses and at least one publicly-funded institution agitating for change to copyright law in Australia have shared goals and interests in the outcome of legislative reform.

While these relationships and agendas are not secret, the interests are rarely stated. When considered, they cast a different light on the warm arguments about bringing Australia in line with other nations.

Those pushing for a new copyright system, and urging people to send emails to their MPs, do so by championing the rights of those who use content rather than of those who create, and own, the content.

Most say creators should be rewarded for their efforts, but there has been little by way of explanation as to how this would help mainstream creators under “fair use”.

Certainly, there will be a benefit for those who like taking work created by others, making some additions or adaptations, and turning out a “new” work. These probably won’t need permission under “fair use”.

The depth and strength of the response from creators is an indication of how badly the change proponents have put the case for improving the life of authors and artists.

And many of those making the case for change usually fail to mention the benefits they stand to get from more extensive rights to use content.

But those interests become clearer with investigation.

Who benefits?

One of the three main groups behind a campaign on Wikipedia to lobby federal politicians to move Australia to a “fair use” system takes funding from Google.

EFA says it has not been influenced in its opinions by what it describes as “significant” financial support from Google Australia.

However, EFA’s budget would certainly be easier to manage with a bit more cash and the longevity and effectiveness of the group improved by easing some of the bill pressure.

Another group backing the Wikipedia campaign, the ADA, has many of its members potentially gaining financially if Canberra can be convinced, as a Productivity Commission study recommends, to change to a system similar to that in the US.

The ADA, which lobbies the federal government, is also supported by the publicly-funded National Library of Australia, a statutory body. The alliance has an office within the library in Canberra and its part-time staff member uses a national library email address.

Among the speakers at the alliance’s copyright forum, held at the national library earlier this year, was Karen Chester, the deputy chair and commissioner at Productivity Commission, who outlined to the audience how much universities and schools would save by not having to pay copyright fees for material allegedly not covered by copyright.

Another listed speaker at the forum was Bill Patry, senior copyright counsel at Google.

Wikipedia in the US lists Google, which has a clear commercial interest in changing copyright law in Australia, as a “major” benefactor.

There is no suggestion that the local Wikimedia chapter, staffed by volunteers, benefits directly. The global organisation mostly runs with small donations from many individuals. However, the Google-sponsored donations still help support the Wikipedia infrastructure which is a benefit to users in Australia.

Is “fair use” reasonable?

These interest groups put arguments that at first glance are compelling in favour of a change to a system more like the “fair use” of the US.

Who doesn’t want Australia to be a smart place where companies, relieved of the burden of asking permission to use content owned by someone else, can rise to become big players on a global stage?

The ADA, in its final submission to the Producivity Commission inquiry: wrote: “A fair use provision is essential to enhance Australia’s economic growth and provide both the incentives and flexibility needed for creativity in the digital age. Fair use will future-proof copyright and encourage innovation.”

And, of course, we all want startups to be able to compete internationally and for universities and research centres to be able to come up with significant breakthroughs.

The campaign on Wikipedia says: “Fair Use is a US legal principle which allows the use of copyrighted material without the copyright owner’s permission — as long as that use is fair, in light of four factors. We believe that using these copyrighted material on Wikipedia is beneficial, educational, transformative, and importantly, not harmful to the copyright owner’s commercial rights.”

Some of those who promote this view however — including universities, the education sector and multinational tech companies — stand to save or make millions if the copyright law is changed.

The membership of the ADA includes universities, museums, the education sector, content-dependent companies such as Google and Facebook, and libraries, including the previously mentioned National Library of Australia, which of course receives public funding.

Libraries want to digitise more content and make it available for research. But standing in their way are copyright laws which give long lasting ownership to their owners, the creators.

The digital alliance calls itself Australia’s “copyright peak body” but doesn’t have a content creator among its corporate membership.

Some of the big tech companies today, such as Google and Facebook, are content users, built on being able to access free content, whether it be user-generated or news articles owned by media brands.

The creators as a block — the authors, playwrights, scriptwriters, musicians and artists — say “fair use” is a US legal principle where companies get to use copyright material for free. And that means the creators don’t get paid. Content users benefit.

What’s agreed: change is necessary

Both sides — the users and the creators — seem to agree that the current laws needs change in some form.

Ask any librarian and they have will a story about how they’ve had to walk a complex copyright path on behalf of researchers. It should be made easier for researchers and academics to study and use so-called orphan works where the copyright owners can’t be found.

At this stage, it is worthwhile having a quick look at what copyright means.

Anyone who creates something, such as a novel, or poem or a song, owns that piece of work.

Current copyright law in Australia essentially sets out the limitations, or exceptions, of ownership. For example, people with disabilities, such as the blind, get a break.

Critics and journalists can quote from works if they are writing a review or reporting the news. Comedians can use parody or satire to make us laugh.

These exceptions evolve as technology and usage changes. The law has sometimes been slow to match this evolution but there have been changes recently and more are on the way.

The current Australian “fair dealing” copyright regime also has uses not available in the US. A TV station can use a snippet from a competitor’s channel of a sporting match if it is a news story. This is unusual in the US with “fair use” because sporting bodies have deep pockets and expensive legal teams at the ready. But in Australia it’s lawful.

What’s being talked about in the current debate is replacing current exceptions with US-style principles to the point that using copyrighted material is okay as long as this is “fair”, hence the term “fair use”. Content users win.

What’s fair isn’t strictly defined. In the US, it’s a complex process judged on a case-by-case basis. Content users go ahead and use content. Content creators then, if they have the resources, have to challenge that use if they object.

The trouble is that most copyright owners are poor, with authors earning less than minimum wages, and can’t afford lawyers to represent them if there is a dispute about this process. Content users win by default.

Declaring an interest

I have an interest in this area. I have been creating content and finding new ways to make money from it for some decades.

That process has involved both buying and selling rights to content in Australia and internationally in various jurisdictions including the US — in short, dealing with the concept of copyright and ensuring that those who create content get paid for their work. This process always involves written permission from the owner.

Currently I am an author-appointed member of the board of the Copyright Agency, the collection body created more than 40 years ago by the Australian Society of Authors. I also receive royalty cheques for copyrighted material that I own.

For many years I was an elected member of the board at PANPA, a newspaper industry body whose members own significant catalogues of content in the form of news articles. I’m not involved anymore other than as a judge of the annual newspaper of the year awards.

I don’t propose to visit each side’s argument in detail, in a “they said this” and “the others said that” format. What I will do is examine the lobby groups involved in the debate, the linkages between them and their interests.

To this point, anyone watching from the sidelines would get the impression that everyone in the pro “fair use” side — the content users — is acting only to make Australia a better place, while content creators are portrayed as obstructionists, holding up progress.

The Wikipedia campaign

A campaign in June this year urging Australians visiting Wikipedia to write to their MPs about changing copyright law to “fair use” was backed by the two organisations, the ADA and EFA.

Users were greeted with the message: “Copyright that makes sense. That’s fair. Wikipedia relies on FAIR USE to bring you content in articles like the one you were just reading.”

The notice said some material, such as the logo of the ABC or an audio-sample from the classic Men At Work song Land Down Under, could not be shown on Wikipedia if it was hosted in Australia.

This sounds like Australia is seriously disadvantaged. But it’s not correct, according to Kate Haddock, the chair of the Australian Copyright Council and a copyright lawyer.

(The copyright council is a not for profit representing “peak bodies for professional artists and content creators”.)

Hosting Wikipedia in the US doesn’t provide protection from copyright law in Australia, Haddock says. The display of the ABC logo is allowed under Australian rules, so no big change there.

The campaign on Wikipedia. Image: screenshot.

Wikipedia in the US, which builds and controls the infrastructure which hosts the online encyclopedia, lists Google as a “major” benefactor. By how much isn’t known, other than it is more than $US50,000.

The Wikimedia Foundation told Business Insider: “Google is one of many donors that contributes to the Wikimedia Foundation, and their contributions have not influenced Wikipedia’s involvement in the fair use campaign in Australia.”

The local Australian organisation is Wikimedia Australia, a registered charity run by volunteers. (EDS: Business Insider previously reported that Wikimedia Australia runs Wikipedia locally. Wikimedi Australia, which previously declined to comment, now says it does not.)

Questions sent to committee president, Gideon Digby, a photographer from Perth, went acknowledged but unanswered. (After an email to a general media response address, a person identifying themselves as a member of the local Wikimedia committee called and said the media didn’t understand the arguments, although there was little in the way of explaining why Australian volunteers are so keen on changing copyright.)

The Wikipedia campaign was started by Liam Wyatt, a volunteer Australian Wikipedia contributor who apparently lives in Europe and likes to use Twitter.

On May 23, he tweeted:

This implies he believes large technology companies are not involved in the “fair use” campaign in Australia.

His pitch to get Wikipedia to support the campaign, against the organisation’s usual neutral stance on politics, is all about “free knowledge”.

Wyatt, who confirmed his involvement with the Australian movement to Business Insider, also appears to be the main author of Wikipedia’s entry “History of fair use proposals in Australia“.

Wikipedia, a hugely popular resource, says it is viewed more than 8 million times a day by Australians.

At last report, 9850 people had sent emails to their MPs from the Fair Copyright site established for the campaign.

A spinoff website from the Wikipedia campaign, Fair Copyright, declares the “biggest beneficiaries of a move to fair use would be libraries, schools and universities”.

Electronic Frontiers Australia

According to its 2016 annual report EFA, which started in 1994 to promote “digital freedom, access and privacy”, recently decided to accept “significant” funding from Google.

It’s hard to tell what is meant by “significant” but it’s a small organisation so the sum would likely match its modest size.

Google Australia, when asked about its funding of EFA, said: “We have no comment.”

Asked why EFA didn’t declare its funding from Google, Jon Lawrence, the executive officer, said in an email: “It was not our major source of funding for the year in question. The majority of our funding in the past and present financial year comes from membership subscriptions and donations from individuals.”

He says the group’s support for the adoption of “fair use” predates, and is independent of, its relationship with Google Australia.

And besides, he believes the benefit from “fair use” to multinational technology companies will only be “marginal”.

An extract from the annual report of Electronic Frontier Australia.

“The primary beneficiaries of the introduction of fair use in Australia will be our education sector, consumers, locally-based online service providers and local creators,” Lawrence said.

“Large US-based online services providers such as Google already benefit from and rely on the fair use provisions in US copyright law, and as such, the introduction of fair use in Australia will be of only marginal or incremental benefit to such organisations.”

Australian Digital Alliance

The second organisation to put its name to the Wikipedia campaign, and claim copyright of the material on the fair use campaign website, is the ADA, which describes itself as a “broad coalition of copyright users and innovators”.

The membership comprises libraries and museums, universities, and Facebook and Google.

Collectively, universities pay an annual fee of around $30 million to the Copyright Agency to cover copying by academics and students across Australia. Schools pay $63 million.

On ADA board is a NSW Department of Education public servant, Delia Browne. She is also the national copyright director of the National Copyright Unit for the Copyright Advisory Group to COAG (Council of Australian Governments) Education Council — school education policy. This body advises Australian schools on copyright.

This link to the interests of universities and schools is obvious when studying the digital alliance website but not so clear when the organisation is publicly pushing, such as during the Wikipedia campaign, to transform the copyright landscape.

With the introduction of fair use, universities could argue there’s no need to pay copyright fees which end up being paid to authors and to publishers via the Copyright Agency. All they have to do is describe what they are doing as “fair use”.

Some say this may not be the ultimate impact of “fair use” in Australia.

According to the Productivity Commission’s report, the education sector says it will continue to pay under “fair use”.

However, the report also indicates that schools won’t be paying what they are now, saying: “The education sector has also indicated that fair use would avoid the current perverse situation where Australian schools pay millions of dollars each year to use materials that are freely available online.”

In this case, “freely available” apparently means that if access is easy, then the content is fair game.

Similar changes in Canada, while not called “fair use”, resulted in the near disappearance of such fees and contributed to the collapse of local educational publishing.

In that case, universities lobbied hard for sections of the Canadian Copyright Modernization Act which became law in 2012. The local writers and publishers then lost millions in copyright fees with universities claiming they could freely copy chapters from books without payment.

The Wikipedia campaign announcement. Image: Press Release

Jessica Coates, the executive officer of the Australian Digital Alliance (ADA), is a copyright advisor to the Australian Library Copyright Committee which advocates for “copyright law reform in the interests of Australian libraries”.

She divides her week between each organisation. The National Library of Australia provides her with an office and IT support. She has both a national library email address and one for the ADA

The ADA website, in its Whois lookup, has an email for technical support which goes to the systems administrator at the national library.

However, Coates says the alliance site is run through Oxide Interactive, a local Canberra company.

“We do have an office at the NLA (you can see this in our contact details on our website) and pay an annual rent for this,” she said.

“Both the NLA and Google are members of the ADA.”

She says the alliance has been a long term supporter of “fair use”.

“The banners on Wikipedia particularly tied into themes of access to knowledge that are of importance to our education and library members,” she says.

The ADA’s board includes Google Australia’s Michael Cooley, its Public Policy and Government Relations Counsel.

Google does chip in money to the alliance.

Google Australia, when asked what support it provides in terms of money and resources said: “Google is one of more than 40 organisations that are members of the ADA. We pay an annual membership fee and contribute financial sponsorship to the ADA from time to time. One of Google’s employees is on the board as the industry representative.”

There are also many board members with a library and university background including chairman Derek Whitehead, a former director of information resources and university copyright officer at Swinburne University of Technology. The alliance’s patron is Nicholas Gruen, CEO of Lateral Economics, a former adviser to Labor treasurer John Dawkins and a former member of the productivity commission.

He was also until April last year a member of the governing body of the national library, its council.

National Library of Australia

Dr Marie-Louise Ayres, the director-general of the national library, says the ADA, the Australian Library Copyright Committee, and the library have had a memorandum of understanding since 2013 for the provision of office accommodation.

She says the arrangement wasn’t taken to the library’s council, of which the digital alliance’s patron, Gruen, was a member.

The library won’t say what the digital alliance pays.

“The National Library of Australia declines to discuss information concerning the business, professional or financial affairs of the Australian Digital Alliance and the Australian Libraries Copyright Committee,” the library said in a written statement.

Asked how the publicly funded library could reconcile giving resources to a lobby group, the library said in a written reply: “The National Library does not give public resources to the Australian Digital Alliance.”

(A follow-up question asking how the library could support a lobby group went unanswered.)

The chair of the library’s council, the governing body equivalent to a board of directors, is Seven Group CEO Ryan Stokes. The Seven Group owns substantial amounts of content via Seven West Media, which owns channel Seven and the West Australian Newspaper group. Stokes declined to comment for this article. (One of the questions put to him was if he was aware, as head of a company with extensive content ownership, of the library’s implicit support, via the digital alliance, for “fair use” copyright changes.)

Google

A lobby group called Digi, short for Digital Industry Group, made a submission to the Productivity Commission urging the adoption of “fair use” to bring “benefits to creators and users alike”.

Digi’s members are Facebook, Microsoft, Twitter, Google and Yahoo!

The central message is that “fair use” is flexible and technology neutral, meaning that changing the law wouldn’t be needed when there are advances which, in the past, may have meant going back to parliament.

Their argument suggests fairness to creators can be assessed on the run. Content users then don’t have to deal with a messy process of trying to change the rules.

We know Google actively supports the digital alliance and others campaigning for “fair use”.

A Google Australia spokesman told Business Insider: “We believe copyright law reform would encourage leading global online service providers to bring their newest and best offerings to Australia, and free Australian businesses, including startups, to create innovative new online services (YouTube could not have started in Australia).

“We believe there’s an opportunity to bring Australian law into alignment with the legal framework already in place in the US and Europe, which would allow Australian businesses to more easily operate in overseas markets.”

The creators

One result of the campaign for “fair use” has been to bring together the nation’s content creators in a unified voice. They see the campaign as a threat to their livelihoods.

The response to the Wikipedia campaign is a competing website Free Is Not Fair.

This is supported by: the 43,000-member Copyright Agency/Viscopy; the Australian Publishers Association, the peak body for Australian book, journal and electronic publishers; APRA AMCOS with 90,000 songwriters, composers and music publishers; the National Association for the Visual Arts, representing the Australian visual and media arts, craft and design sector; Screen Producers Australia; Books Create Australia; Indigenous Art Code; and the Australian Society of Authors.

The Free Is Not Fair campaign is part of a growing global movement of creators standing up to those who build business riding free on their labour.

Reports have been coming in from the US, the UK and Canada where’s there’s a movement to fix the mistake of moving closer to “fair use”.

The competing website set up by creators.

The local Free Is Not Fair website says: “The Australian Government is considering changes to copyright that would lead to a lot of Australians no longer getting paid for their work. We need to keep copyright fair, for the creators and for the millions of people who care about keeping the Australian voice alive.”

Last year the Copyright Agency collected $139 million in copyright licence fees on behalf of authors and publishers.

The agency set up a Future Fund in 2013 after seeing what it called “catastrophic changes” to copyright law in Canada and “the substantial resources that some large technology companies and others” have dedicated to lobbying to have copyright laws relaxed” here in Australia.

The fund, announced at the agency’s AGM almost five years ago, has now reached an agreed cap of $15 million.

Over the same time $465 million was paid to members. It is this income for creators which is at risk.

The same sum, or the great majority of it, would be a gain to members of the digital alliance and others. Content users.

“The Future Fund is there to ensure there is a footing for the agency to continue operating and provide a source of funds for litigation and advocacy in the event the government proceeds along the lines of the Productivity Commission proposals,” the agency says.

The agency says the productivity commission’s recommendations are “extraordinarily hostile” to creators and indifferent to the complex processes of creating, producing and distributing content.

“There are areas in which the legislation could be updated in the light of changes in technology and consumer behaviour, but there are better ways to do this than transplanting a provision from the US copyright statute into Australia’s quite different system,” the agency said.

And does “fair use” really mean Australia will become more, as the latest cliche from Canberra calls it, innovative?

On the the Global Innovation Index for 2017 only two countries in the top 10 innovator countries have “fair use”.

The last word goes to author, academic and former arts administrator Jeremy Fisher, who was awarded an Order of Australia Medal in this year’s Queen’s Birthday honours list.

He argues individual creators lose their ability to earn as much as they might from their intellectual property because they are forced to deal with partners who seek to exploit them.

The former executive director of the Australian Society of Authors and board member at the Copyright Agency, wrote, in a personal submission to the Productivity Commission: “The weak need protection from the entrepreneurs.”

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