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EXCLUSIVE: The links between academics and commercial interests lobbying to change Australia's copyright laws

Editor’s note: The following article has been edited from its original form. The original contained some suggestions which implied wrongdoing or deceit on behalf of prominent academics Rebecca Giblin and Kimberlee Weatherall. We have deleted some specific parts of this story which made those suggestions, and added further context and commentary from the academics involved to accurately report their position. Business Insider Australia retracts any implication that Associate Professor Giblin and Professor Weatherall are anything but academics of the highest integrity and honesty, and apologises for any distress or damage to their reputations caused by the publication of the original version of this article.

Dr Rebecca Giblin speaking at the Australian Digital Alliance’s seminar in Canberra. Image: Screenshot YouTube.

The search for academic truth appears to run in only one direction in the current debate over whether to change Australia’s copyright laws.

The linkages between commercial interests which stand to gain from a change in copyright laws and academics writing scholarly papers about the issue are byzantine in their complexity and often obscured by the fact that the beliefs and positions of those involved are not stated.

The players include Google, the National Library of Australia, a lobby group whose members stand to gain millions from a change in copyright but presents itself as champion freeing information from old world chains, and academics who support change but don’t mention this when writing on unrelated issues.

Two key Australian academics are members of the board of directors of the Australia Digital Alliance, some of whose members might stand to gain from a switch in Australia to a US-style “fair use” copyright system.

The two are Rebecca Giblin and Kimberle Weatherall, both of whom are members of the board of directors of ADA, which affiliation is listed on their professional websites.

The membership of the ADA includes Google and Facebook, plus universities, libraries and the education sector, all of whom stand to gain tens of million, and perhaps hundreds of millions, from a change in Australia’s copyright laws, making it easier to use content without seeking permission from, or paying, the copyright owner.

A book on copyright, edited by Giblin and Weatherall for the Australian National University (ANU), “What if we could reimagine copyright?” was launched at an event hosted in February by the ADA, the same organisation for which the academics are board directors.

The book, while it benefits from support from the ADA in the form of a launch, does not mention the ADA or the fact that its editors are on the board of directors. The book does not deal with fair use. Weatherall points out a common view in the book is that copyright is failing creators and that the copyright system would be better served if created benefited more directly from the system that is created in their name.

It is all part of a web of connections in the campaign for copyright reform, an issue currently before federal cabinet and which could erode the earning ability of creative Australian individuals and companies — from artists and musicians to photographers and publishing companies.

Business Insider has previously reported that the ADA did not disclose the commercial interests of its members when it backed a campaign on Wikimedia urging Australians to write to their MP urging a change to “fair use” copyright.

The second group behind the Wikipedia campaign, Electronic Frontiers Australia, receives what it calls “substantial” funding from Google, also a beneficiary of a change in copyright laws.

The two academics confirmed to Business Insider that they favour a “fair use” approach to copyright, but say their ADA director positions are not a conflict of interest that requires disclosure when they write on unrelated topics.

Giblin and Weatherall told Business Insider that they “reject the suggestion that there is a conflict of interest involved arising from our board membership whenever we write about any copyright-related issue, or that we have to specifically reiterate our board membership on all scholarly publications”.

They said it was incorrect to assume that as ADA board members they were somehow bound, in their scholarly writing, to promote the interests of individual ADA members.

“We are not bound, as a matter of corporate governance, to simultaneously promote the diverse, and sometimes conflicting interests of the wide range of individuals, organisations, public sector institutions and private companies that are members of the ADA,” they said.

“It also misunderstands our role on the ADA board. We were both invited onto the board to offer the benefit of our copyright expertise: not to represent some interest or other, and we serve on the board pro bono on the clear understanding that, as academics, we will have, and espouse in our scholarly research, our own views on copyright (and other issues). We both believe that the ADA provides a useful former where a wide range of interests can discuss areas of copyright policy where they may have common interests.”

Giblin and Weatherall do disclose their ADA board membership when they write on issues that may relate to ADA interests, such as their research work involving libraries.

The change to “fair use”, proposed by the Productivity Commission, is being considered by federal cabinet. The proposal is opposed by creatives such as writers, as well as companies owning content.

‘Fair dealing’ versus ‘fair use’

Australia currently has a “fair dealing” copyright regime, where exemptions to copyright law are spelled out. The most familiar example is news reporting, where copyrighted material can be quoted within a piece of journalism.

However, reform advocates argue Australia needs to move to a “fair use” system so it can be competitive in a world being disrupted by technology. This would scrap exemptions and open content to any form of use as long as the use is “fair”.

Opponents say moving to “fair use” would send money away from low-earning creators, such as writers and artists, to big tech companies and others, such as universities — essentially the members of the Australian Digital Alliance.

In a written response to questions, Giblin and Weatherall told Business Insider: “As academics at leading Australian institutions, we both take integrity in research very seriously. Our membership of the board of the Australian Digital Alliance is not a secret.”

They say the reimagining copyright book is a scholarly project, a series of provocative essays from a range of scholars that tries to imagine what copyright might look like if we could start with a blank slate.

The February 23 launch of Giblin and Weatherall’s ANU book turned into a gathering for supporters of “fair use” in Australia and the opening event in a conference, “Copyright Forum 2017: Fair Use, Flexibility and Exceptions for Creativity“, backed by the Australian Digital Alliance.

The connections between the pro “fair use” players run deep.

Among the speakers was Bill Patry, senior copyright counsel at Google, a member of the ADA and a provider of financial sponsorship to the organisation.

The venue was at the National Library of Australia, another member of the ADA. And it provides the digital alliance office space.

Also a speaker was Karen Chester from the Productivity Commission, the commissioner behind the intellectual property report recommending “fair use” for Australia.

Chester congratulated Giblin and Weatherall on the publication of the book and then thanked the digital alliance.

Giblin is an Associate Professor at Monash University’s law faculty. Her university profile does list her connection to the digital alliance. The book, which is unrelated to the fair use debate, does not.

She has been awarded $889,550 of taxpayer funds in an ARC research grant to show how taking authors’ interests seriously can not only help them get paid, but also help broader society reclaim some of the culture that is lost under current approaches to copyright.

Part of the project description: “This project aims to develop new empirical understandings of the cultural value lost through current approaches to copyright. Copyright rules that favour one party no not necessarily need to imply losses for another. By changing the scope and division of rights it is possible to improve outcomes for multiple stakeholders. The project will results in new understanding of how this can be achieved within the confines of an unamendable treaty framework by exploring fuller protection of authorship as a mechanism for security a fairer go for creators, unlocking new opportunities for publishers, generating new sources of arts funding and improving access for the public.”

Giblin fully disclosed her ADA board membership in the grant application.

Weatherall is a professor of law at the University of Sydney. Her university profile also lists her connection to the digital alliance. The reimagining copyright book doesn’t mention it but her profile on the ANU Press website does.

She wrote, with a string of others including Peter Jaszi, a professor at the American University Washington College of Law, a paper which was submitted to the Productivity Commission inquiry into intellectual property. Her connection to the Australian Digital Alliance isn’t mentioned in that paper.

The Productivity Commission quoted the paper — a take down of a report by PwC on the economic impact of changing to a “fair use” copyright system — on page 180 of its final report:

“More critical again, academics from the Program on Information Justice and Intellectual Property at the American University Washington College of Law stated:

“Ultimately, evaluating the impacts of fair use, or any specific policy change, is hard work. The diffuse and forward-looking benefits of open exceptions like fair use may be hard to measure, but they are no less real. The PWC’s evaluation of the costs and benefits of fair use are not real. It is full of imagined horror stories that are unlikely to take place in fact and should be disregarded in their entirety.”

This paper is listed in the Google Transparency Project, which tracks the influence of the tech giant, as one which received indirect support from Google. The reason given for its inclusion is that the US academic was the founder of the Digital Future Coalition, which includes Google beneficiaries among its members.

Peter Jaszi, who was the co-author for the paper submitted to the Productivity Commission, is also quoted in the ANU book about copyright reimagined in describing how the interests of authors are regularly misused in order to protect the economic interests of intermediaries such as publishers.

Jaszi was also a speaker at that Australian Digital Alliance seminar in February, as were Weatherall and Giblin.

He also wrote the book, Reclaiming Fair Use, with Patricia Aufderheide, another US academic, who until recently was in Australia at QUT in Queensland and spoke at events organised by the Australian Digital Alliance in favour of “fair use” copyright.

Aufderheide, who was also a speaker at the Australian Digital Alliance’s seminar, told Business Insider: “I have worked with people who got Google money but not on scholarship funded by Google.”

Among the papers co-authored by Aufderheide is one titled, “Fair Use and best practices: Surprising success”.

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

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