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

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.
Written by Stilgherrian , Contributor

"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.


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.

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