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

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 the subject.

Two key Australian academics don’t disclose in their major written works that they support a group, the Australia Digital Alliance, whose members stand to gain from a switch in Australia to a US-style “fair use” copyright system.

The two are Rebecca Giblin — a recipient of almost $900,000 in taxpayer-funded research on copyright reform — and Kimberley Weatherall, both of whom are members of the board of directors of ADA.

The membership of the ADA includes Google and Facebook, plus universities and the education sector, all of whom stand to gain tens of millions, 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.

There is no suggestion of any wrongdoing by either of the academics. However, their connections show the far-reaching influence of the well-resourced “fair use” lobby.

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 power 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.

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”.

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 it met a series of tests which made such use “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.

Source: ANU Press

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 supporters of “fair use” 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 does not.

She has been awarded $889,550 of taxpayer funds in an ARC research grant to show how the current “fair dealing” copyright regime negatively impacts culture.

Part of the project description reads: “This project aims to develop new empirical understandings of the cultural value lost through current approaches to copyright.”

The Australian Research Council (ARC) has a conflict of interest policy. However, it would not say whether or not the link to the Australian Digital Alliance was declared in the funding application, saying that proposals are submitted in confidence. “As such, we cannot comment on the contents of a particular proposal,” the ARC said.

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.

Karen Chester speaking at the seminar organised by the Australian Digital Alliance. Image: Screenshot

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.

The US academic is the founder of the Digital Future Coalition, which includes Google beneficiaries among its members.

Jaszi was also a speaker at that Australian Digital Alliance seminar in February, as was 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 helping the Australian Digital Alliance by speaking 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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