Beware the spin behind Australia's copyright law discussion paper

Another week, another propaganda-driven proposal from the mind of Australian Attorney-General Brandis. This one assumes that ISPs need to fix other people's broken product distribution models.
Written by Stilgherrian , Contributor

The leaked discussion paper on online copyright infringement is proof that Australia's favourite Attorney-General, Senator George Brandis QC, has been utterly captured by narrow vested interests. Again.

It starts by assuming as fact a self-serving report produced for industry lobbyists. It swallows whole the dodgy claims that they face existential peril. And it frames the entire issue as "So, exactly how will ISPs be taking on their new responsibilities here?"

As ZDNet reported on Friday, the document, leaked to Crikey, is intended to be the starting point for public discussion on the very real issue of copyright infringement. Yes, real. There are indeed people creating or distributing things for which they expect to be paid, yet sometimes they are not being paid. Sometimes.

But the covering letter included with the paper, intended to be signed jointly by Brandis and communications minister Malcolm Turnbull, is such a ham-fisted exercise in propaganda and debate-framing that media studies lecturers should set its analysis as a class exercise.

"There are good reasons why all Australians should be concerned about online copyright infringement," it begins.

"According to a 2012 report, Australia's copyright industries employ 900,000 people and generate economic value of more than $90 billion, including $7 billion in exports. Digitisation means that these industries are particularly susceptible to harm from online copyright infringement with the potential to directly impact upon the Australian economy and Australian jobs. Online copyright infringement can hurt consumers as well. Consumers accessing materially unlawfully are not covered by consumer protection laws and may be exposing themselves to the risk of fraud and other forms of cybercrime. Further, children may be exposed to material that is not age appropriate."

Online copyright infringement also causes traffic jams, tooth decay, and the thing that prevents bees from pollinating flowers.

Yeah, let's look at that report, shall we?

In 2012, PricewaterhouseCoopers (PwC) produced The Economic Contribution of Australia's Copyright Industries 1996-97 to 2010-11 (PDF) for the Australian Copyright Council. That is, the copyright-holders lobby group commissioned this report to show how important copyright-holders are.

PwC has done a grand job, inflating the "copyright industries" to encompass nearly 8 percent of Australia's entire 11.6 million workforce. How? By including anything and everything that could possibly come under the copyright umbrella. Not just those "primarily involved in the creation, manufacture, production, broadcast and distribution of copyrighted works" — which includes movies, magazines, software, games, music, theatre, cards and graphic design — but also those who "support and facilitate the creation of copyrighted works" and their "performance, exhibition, broadcast, communication or distribution and sales".

The report is illustrated with a photograph of a filmmaker with his Arriflex camera, a visual artist at work, a painting by Charles Blackman, musicians and so on. Creators. But that 900,000 jobs figure actually covers everyone down to the staff at your corner newsagency, art gallery curators and picture framers, cable TV installers, photocopier and paper salespeople, musical instrument repairers — as well as all the people involved in supporting these activities with transport, telecommunications, computers and everything else they need to do their jobs.

The idea you're meant to swallow is that online copyright infringement threatens this vast $90 billion web of economic activity and 900,000 jobs. Why mention these numbers otherwise, right?

You're meant to forget that we're really only talking about movies and major TV series — specifically the interests of the Australian Screen Alliance, formerly the Australian Federation Against Copyright Theft (AFACT), the mob who lost their High Court copyright action against iiNet.

The very fact that Brandis and Turnbull are framing the debate around this one PwC report tells you everything you need to know about their biases — as well as their honesty and commitment to actual policy debate.

Sure, there's a ritual token mention of the need for copyright-holders to "ensure that content can be accessed easily and at a reasonable price", but none of the proposals address that, nor do any of the discussion questions. It's all about internet service providers taking "reasonable steps to ensure their systems are not used to infringe copyright". Whether ISPs should actually be required to take on that role is presumably not up for discussion.

All three proposals put forward are about changes to ISPs' responsibilities, including ISPs being made more directly responsible for preventing copyright infringement, and copyright-holders being able to apply for court orders requiring ISPs to block overseas websites, "the dominant purpose of which is to infringe copyright"?

The key problem with this framing is structural. It assumes there's a monolith called "copyright industries" which makes money by selling "copies", and that the internet, as the world's biggest data copying mechanism, allows people to make copies without paying, threatening the monolith.

Yet as the discussion paper itself admits, there isn't even a commonly accepted method for measuring the volume and impact of online copyright infringement. We're being asked to discuss how ISPs will address the problem before we've even established whether the problem is even worth worrying about.

How about we break up the monolith?

Try this framing.

Creators of movies and TV series want to show their creations to paying customers. Customers want to watch them. Distributors, — wholesale and retail — connect the two.

In the past, the distributors have pocketed most of the money. Shipping boxes of atoms, and leasing real estate in which to store and sell them, costs money. Broadcast spectrum doesn't come cheap either.

Now, though, the internet and its global payments systems can connect creators and customers far more cheaply. They allow businesses to be coordinated internationally. Indeed, the customers are paying for the storage media and display equipment their end, as well as the data transmission costs. The distribution costs are now almost nothing.

Consumers should be paying a fraction of the prices they are. But they're not. Because inefficient distribution businesses still want to insert themselves between the creators and the customers — extracting the same profits as when they used to herd people into barns to show them the moving pictures — and rights-holders are allowed to set up exclusive distribution deals, keeping prices artificially high.

Much as I said in 2009 in relation to the book industry, legislative reform shouldn't be about tweaking the details of an obsolete distribution system, or propping up businesses that fail to adapt.

It ought to be about encouraging more efficient distribution businesses that take advantage of new technology to give customers what they're after without soaking up most of the price.

Editorial standards