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July 31, 2013

Author Linda Jaivin on proposed changes in Australia copyright law

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There's a strong and provocative piece in the Australian press today by novelist and author Linda Jaivin on how the proposed changes will cause economic losses to authors.

Jaivin writes powerfully and persuasively about the importance of intellectual property protection for creators. The occasion of her piece is proposed Australian legislation that would remove some author protections in the form of statutory licenses, and in the course expands Australia's fair use exceptions.

Railing against fair use may strike even some of us copyright defenders in the U.S. as bold, since we have a fairly robust set of fair use exceptions in the U.S. that we're accustomed to.

But in the face of ever-greater demands for expansion of fair use, it's worth thinking about Jaivin's point. In particular, in schools, the argument is that schools shouldn't have to pay licenses for content they use, either because it's "too expensive" or "too inconvenient," or because it's for a noble purpose like education.

The law as it stands means that if a teacher finds it valuable enough to use in a classroom, or a government department relies on it for research, then I will receive a copyright payment which recognises the value of what I have created, and its contribution to education and government in this country.

Administratively, the system already works smoothly. It is not expensive - in the case of high schools, it costs an average of $17 annually per student out of the $10,000-$13,600 it costs to educate each student (Gonski report).

The ALRC's review into copyright closes on Wednesday night. Its recommendations will not only throw a spanner in the works of a good machine, one supported by the teachers who use it, but will confront writers with the burden of tracking down copyright breaches and of finding the means to prosecute them under law. Few of us have the time, legal expertise or financial wherewithal to do so, so this effectively disempowers us even to pursue what legal rights we would have left.

But the light bulbs are also need for the education of children, and schools don't take those for free. There are any number of goods and services consumed in the process of educating children, and none of them are free for the asking to the schools. Why is content the one thing that is so lightly valued that we allow it to be taken for free?

I'm not suggesting that there is something wrong with this particular fair use exception. I'm just pointing out that, for some reason, we are already valuing creative content far lower than we value things like light bulbs and toilet paper by allowing it to be taken for free.

There are reasons why specific fair use exceptions have been carved out for specific situations, and they differ country-by-country. But it's important to remember that the purpose of fair use has never been to simply empower people to be able to take content for free just because they could, or because they thought they should be able to, or because it was inconvenient to pay for it.

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