What the Dickens will Brandis do to copyright in the digital realm?

What the Dickens will Brandis do to copyright in the digital realm?

Summary: When it comes to developing a legal framework for Australia's digital future, Attorney-General George Brandis has shown us that he's completely up to speed — with the 19th Century.

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"Looks like provincial lawyer and Attorney-General [George] Brandis is signing himself up as a fully fledged consigliere of the Copyright Mafia," tweeted Bernard Keane, Crikey Canberra correspondent, during Brandis' keynote address (PDF) to the Australian Digital Alliance's Copyright Forum in Canberra on Friday morning. Indeed, Bernard, and I'll go further than that. Much further.

But where to begin?

Well, we're talking about reforms to Australian copyright law, so how about we begin with a basic legal concept?

"The illegal downloading of Australian films online is a form of theft. I say Australian films, but of course the illegal downloading of any protected content is a form of theft," Brandis said.

Bzzzt! Wrong.

In Australia and allied jurisdictions, the crime of theft includes the intention to permanently deprive the owner of their goods. It seems silly to have to point this out after we've endured years and years of debate about online copyright infringement, but when you copy data, the owner still has it, too. There is no permanent deprivation.

A copyright owner may well suffer financial loss in the face of copyright infringement, sure, but it's not theft — in the same way that conning some gullible punter out of their life's savings is not theft, but fraud. That's why police in the UK refer to joyriders not as having committed, as Americans might put it, "grand theft auto", but as "taking without owner's consent" (TWOC). It's not theft, because there was no intent of permanent deprivation.

Brandis has the letters "QC" after his name for "Queen's Counsel", indicating that he's not merely a qualified lawyer, but one of the elite shock troops. A basic component of criminal law should be well within his grasp, but apparently not. Yet, I managed to pick it just up by watching old episodes of The Bill.

This copyright-is-theft meme has been a mainstay of the propaganda from the legacy content distribution industries — the ones that grew fat and lazy back in the 20th Century, back when shifting data meant shipping atoms. Between them, the rights aggregators, wholesalers, and retailers pocketed all but a dollar or three from the retail price of a book, film, or music album, leaving the actual creator to scrabble for whatever crumbs might remain.

By parroting this meme, Brandis indicates that he has, quite clearly, allied himself with the legacy distributors — and that his world view in this debate is stuck back somewhere last decade. It's not the only tell in his speech. Indeed, the speech could almost have been written by the film and TV industry representatives themselves.

There's the tired old statistic that "the creative content industries generate over six percent of gross domestic product and account for eight percent of employment in the Australian workforce", which is true only if you include everyone from paperboys to cinema peanut sellers.

There's the tired old cliché that "Australian art, music, literature, film, and television all contribute to the fabric of our society", which is then couched in terms of "practitioners" and "audiences" — another prop for the idea that there's an industry that has to sit in between.

On the introduction of fair-use provisions to the Copyright Act, Brandis said he "remain[s] to be persuaded that this is the best direction", despite having a report in front of him from the highly respected Australian Law Reform Commission (ALRC) that recommends exactly that.

He said he'll consider three-strikes rules for alleged copyright infringers, even though that sort of guilt-by-accusation model should be abhorrent to fundamental legal principles of due process, and, as research has shown, "there is little to no evidence that graduated responses are either 'successful' or 'effective'."

Apart from some results from the so-called iiTrial (which he rejects) and the aforementioned ALRC report (which he rejects), Brandis' speech bases most of its understanding of modern, digital copyright law on the words of Lord Thomas Macaulay and Charles Dickens — that is, from 1841 and 1842, respectively.

Sigh.

As I've said twice before, in June 2013 and October 2013, I'm assuming that if Brandis has anything intelligent or insightful to say about Australia's digital future, he'd have said it by now. Third time's the charm, right?

Now, some might argue that since Brandis is a conservative minister in a conservative government, his views will, quite naturally, tend towards a more cautious approach to law reform. True. "Any major legislative change brings with it an element of risk," he said. "In shaping its reforms, the government will engage with this risk, but it will be careful not to throw our copyright system into a state of uncertainty."

But there's a difference between: One, conservatism that rightfully seeks to protect traditional values; and two, the reactionary propping up of rickety models and viewpoints dating from some time last century, or the century before that.

There's a difference between: One, the economically liberal approach of freeing the market from government interference and letting it evolve new business opportunities; and two, propping up the struggling, outdated businesses of a select few.

And there's a difference between: One, a minister taking on board the evidence and recommendations prepared for him; and two, arbitrary government by feelpinion.

"I will bring an open and inquiring mind to the debate," Brandis said.

So will I. But based on the evidence before me, it seems that on all three counts, George Brandis is stuck in the Dickensian world of the 19th Century. I have no Great Expectations here. With Brandis in parliament, I foresee a Bleak House.

Topics: Government AU, Privacy, Australia

About

Stilgherrian is a freelance journalist, commentator and podcaster interested in big-picture internet issues, especially security, cybercrime and hoovering up bulldust.

He studied computing science and linguistics before a wide-ranging media career and a stint at running an IT business. He can write iptables firewall rules, set a rabbit trap, clear a jam in an IBM model 026 card punch and mix a mean whiskey sour.

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12 comments
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  • How did Mr Brandis get a Law Degree?

    How did Mr Brandis get a Law Degree, when he is unable to define theft accurately?
    Kevin Cobley
    • So, how is theft defined and what are its proofs?

      This should be enlightening!
      1,2,3
    • Probably because...

      ...he doesn't believe it either. But lawyers are trained to argue either side of any issue, which is a good skill for a lawyer to have, but a bad one for a politician to have.

      I have to assume that he's a competent lawyer (but I know nothing about his legal career before he entered politics). Appointing an incompetent lawyer as AG would be truly stupid.
      John L. Ries
    • What, still no respone?

      But I thought that you knew more than Brandis about the legal definition and proof of stealing.

      Obviously not!
      1,2,3
  • Maybe you shouldn't slander the 19th Century

    I don't know about copyright law in the 19th Century British Empire, but here in the States, copyright laws were much more liberal then than they are now.
    John L. Ries
  • Pompous is as pompous does

    "...overly long, unnecessarily complex, often comically outdated and all too often, in its administration, pointlessly bureaucratic."

    Brandis talking about himself, I presume.
    Tedbaker111
  • The good being deprived

    Isn't the film, it's the money from the sale. The downloader obtained the material without paying for it, even though that was the condition of having the material as set by the copyright holder. It's theft, plain and simple.
    baggins_z
    • I agree with that, but...

      ...how much prior restraint should there be (the usual conservative answer is "none at all")? How do we prevent legitimate materials from being "taken down" by spurious copyright claims? Are life plus 75 year copyrights really necessary to insure that authors get a reasonable return on their time investments; or to restrict how copies can be used?

      And is it really necessary to criminalize technologies that can be used to break copy protection?
      John L. Ries
      • I should say...

        Is it really necessary to criminalize technologies that *might* facilitate the distribution of illegal copies (but also might allow customers to protect their investments by backing up the files)?
        John L. Ries
      • Except that...

        The term "theft" implies that the owner of the goods is being deprived of their use. "Infringement" is the correct legal term for violating a franchise monopoly, which is what copyright is.

        It's wrong to sneak into Disneyland without paying too, but the correct legal term is still "trespassing", not "theft".
        John L. Ries
  • Would it be too much to ask...

    ...that the Attorney-General goes in to bat for Australians occasionally? I don't condone the piracy of music or video content, but one has to ask why Australians are such conspicuous offenders in this area. Could it be because the cartels whose rights Senator Brandis is so keen to uphold have treated Australia so despicably for so long? All too often music or video which is readily available for legal download overseas is either completely unavailable to Australians by any legal means, or available at an inflated price or in limited formats. I enjoy classical music and I am happy to pay for high-quality downloads, but frustrated at how often I cannot obtain preferred recordings even though they are readily available in some countries.
    Achilles-9158f
  • miss quote and bad law from writer

    yes,

    the writer is correct, to "permanently deprive" is an essential element of theft in the legislation, but:

    " to make a serious encroachment on the owner's proprietary rights. "

    is the last element of the offence and non-inclusive of the other elements.

    this means such rights (such as income) are being encroached upon. and so he has met the definition of the law and not the first part of the legislation mentioned by the author.

    very sloppy writing and research.

    I'm into sharing of information, but this article is incorrect in it's citing of law.

    as a writer of media law and a hacktivist, this type of shoddy reporting is shameful.

    benhes.wordpress.com
    benheis