Copyright Laws Matter - Terri Butler MP, Labor for Griffith

Copyright Laws Matter

I recently spoke in relation to the Copyright Amendment (Services Provider) Bill 2017.

You can read the full speech below.

 The Copyright Amendment (Service Providers) Bill 2017 is a very important bill, because it is a fact that for many, many years there has been a lot of contest in relation to copyright law in Australia and that will remain the case after this bill is passed. Nonetheless, this bill goes some way to advancing the cause of those who would like to see rights holders protected and also copyright laws that are fit for purpose in the 21st century. We are fortunate in this country to have a great start-up ecosystem. It's something that I have certainly taken a very strong interest in for the entire time that I've been here in the parliament. In fact, the now Speaker, Tony Smith, and I established this parliament's bipartisan Parliamentary Friends of Innovation and Enterprise group back in 2014, and I remain the co-convener of that important group.

We have, in the course of the work that we have done in that bipartisan friends group, really met with a lot of people who are in that ecosystem, whether that's individual start-ups, StartupAus, universities, venture capitalists, angel investors and a whole range of people in that ecosystem. They are incubators and accelerators. They are run for profit, not for profit, by universities or by community. A number of those participants in the start-up ecosystem in this country have a very strong interest in making sure that—in innovating and in creating new products and services for people to use, whether it's for domestic use or for export—they do not inadvertently run afoul of Australia's copyright laws. You can imagine that there are lots of different ideas and different applications involving the use of material that may be copyrighted. I say 'may be' because it's not even always clear what is copyrighted.

That parliamentary friends group has heard from a number of people in respect of their concerns about Australia's copyright laws and how dated some people consider them to be. We've certainly had some very good bipartisan and, I have to say, robust discussions about a related issue. That issue is the fair use exemption that is sought by some stakeholders. There are people who are very strongly for the creation of such an exemption; there are people who are very strongly against it. That is because they worry about what that will mean for the erosion of their rights to the intellectual property that they have created and owned. Everyone in this place would agree that it is important to have very strong intellectual property rights. It has never been as important as it is now to have strong intellectual property rights.

The enforcement and creation of rights incentivises innovation and incentivises economic activity. If you know that you won't be able to actually enforce your rights, then you lose a fair bit of the incentive to create the IP in the first place. It is important that we have a very strong intellectual property regime. It is also equally important, in making sure that that regime exists, that we consider the interests of both producers and consumers when it comes to the use of products and services that are created. Labor has traditionally been the party that seeks to protect the interests of consumers. Consumers often have less power in a market than producers do. We have some landmark consumer protection legislation against our name. There was the Whitlam government's Trade Practices Act 1974. During the Rudd-Gillard years, there was the Consumer and Competition Act 2010. We're interested in what can be done to redress some of the power differentials between consumers and producers.

In copyright, you have to conceptualise it as an issue of consumers and producers. The market for complicated goods, for new goods and for new services is, after all, just a market. Even though the goods and services may feel unfamiliar to us and the new technologies are unfamiliar to us, it's still a market. In that market, you will still have power imbalances. When we talk about copyright law, it sounds like it might be something quite dull, but it's actually fascinating. That's because copyright law is what seeks to strike the legal balance between the competing interests and rights of the people who produce content and the people who consume content. You might consume it as an end user, as a retail consumer, or you might consume content from a production perspective or value-chain perspective. Content might be an input into a new product or service that you create through the addition of value.

For people in that latter class, it's important that we think about how copyright laws work so that they're not, as I said, inadvertently caught up in copyright laws but also so that, more broadly, we can have the protection of rights without stifling innovation, creativity and economic activity. It's an interesting question, because it's really an intermediate-good content when looked at from that perspective. It's not a final-use good. So how do you ensure that, when there is a process of value creation or value addition, there are not unreasonable constraints or restraints on that economic activity, because that's not in anyone's interests?

I always take a strong interest in copyright law from an innovation perspective. Of course, I'm also an end user of content. I've been known to listen to music. I've been known to read books occasionally, although not as often as I might like, as I'm sure many of us here would say. I see the member for Swan smiling at that proposition. He's a bit sceptical that I read books! But, as retail end users of content, we want to make sure that there's not regulation that causes difficulty in gaining access or puts in place constraints or restraints that are unreasonable. But, at the same time, I think most users in Australia want to pay their fair share for the use of copyrighted material. It's interesting that people are starting to learn about the importance of making a fair payment for content. People whose favourite TV show got cancelled because everyone was downloading it illegally instead of paying to watch it learned about the value of paying your fair share to access copyrighted material. So that is what we must consider when we come to any legislation that might seek to amend the copyright laws of this country.

I think this bill really does strike at the heart of the second of the two main issues that continuously come up in our discussions in our enterprise and innovation group, and that's safe harbour. Should there be a safe harbour protection for people who use copyrighted materials, maybe inadvertently, without the correct permissions or arrangements in place? Or should there be a safe harbour for people who use materials of which they just don't know the provenance? They may be using a material for which they don't know who the author, producer or creator is? How do you reconcile all these competing interests? This particular bill that we're dealing with here would extend the operation of the safe harbour scheme that's set out in the existing legislation to a broader range of service providers. It's a fairly non-controversial foray into safe harbour reform. There certainly would be controversy if the bill were looking at a much broader version of 'safe harbour' than this bill is, but this bill, given its particular terms, seems to have broad support across the stakeholder groups. Of course, Labor consults stakeholder groups, as I'm sure the government does as well.

This bill is generally supported by producers and rights holders and their peak bodies because it provides a social good without undermining their commercial interests. Also, it doesn't undermine their capacity to negotiate effectively with commercial enterprises for the distribution of their copyrighted materials. That's good and important to them because one of the fears that you hear a lot about when discussing safe harbour or fair use in the context of innovation is small producers being without much power vis-a-vis massive multinational corporations that might want to use their content to help develop machine learning or new applications that haven't been previously thought of. You as a producer might feel pretty powerful compared to an end user or retail consumer, but do you feel powerful up against a multinational technology firm? Perhaps not. They don't want to lose their bargaining power either. They don't want to lose their ability to negotiate, so it is important that we consider that in any copyright reform. This bill certainly does consider that. I think people are happy with it because they don't perceive it as eroding their power and their ability to get a fair day's pay for the work that they've put into creating the content that they've created.

I think this bill should be supported because it strikes those balances and incorporates those sets of interests, and it should also be supported as a step along the path of really looking at what needs to be done to modernise our copyright laws in this country. As I said, this one's fairly non-controversial because it's actually about taking the rights of rights holders and the interests of educational and cultural institutions and then providing the extended benefits under the safe harbour scheme to try to better balance those two sets of interests. I say it's fairly non-controversial because the entities that will benefit from this particular legislation don't actually benefit financially from the use of the copyright material. It's a different situation to a big tech firm using it to create a commercial product, a commodity. That's not the case with this bill, so this one particularly can be fairly non-controversial.

The founding principle for this bill is that passive carriers with no control over the material carried on internet services shouldn't be liable for copyright infringement, provided they take steps to remove infringing content when they're notified of its use. The scheme is that if you put something up, you don't know that it's a copyright infringement, the rights holder gets in touch and you take it down then there is no liability—that's the idea—whereas, if you've been obstinate and refuse to take down someone else's material, obviously that would be a very different proposition.

This bill will help schools, universities, libraries and cultural institutions to operate efficiently without having to have the constant worry hanging over them about the inadvertent breach of copyright legislation. It's very important that we acknowledge that there are a lot of burdens carried by our educational and cultural institutions when it comes to the use of material. I've certainly had school and university librarians come and see me about these exact issues, because a school might pay a lot of public moneys towards the copyright agencies to pay fees for copyright for works that you might not even know the author of. In one case, those fees were going into a fighting fund against copyright law reform, an issue that gave a lot of people some cause for concern. It certainly is an issue that's been discussed in the halls of this building a little bit as well. I think it's worth noting that those school and university librarians aren't there advocating out of personal interest; they're advocating because they want to see an end to the waste of public money that's spent on trying to (1) manage the copyright regime and (2) pay fees to people when we don't even know who they are and can't track them down. So I think it's really a great step forward for those educational institutions, and the same goes for cultural institutions as well.

But I want to make the point that we can't just stop with this bill. I know the other parts are much harder, I know that it's not an easy thing to reconcile and balance the competing commercial interests of producers, retail consumers and value adders, people for whom the product is seen as an intermediate good rather than a final good. I think we can articulate, though, what we want the principles to be: (1) we want thriving domestic production of artistic, cultural and creative works in which there is copyright; (2) we don't want unnecessary burdens on schools and cultural institutions, something that this bill deals with; and (3) we also don't want unnecessary impediments on firms and enterprises that are seeking to create new goods.

The fact is that information is a resource. As well as something that is an end in itself, it's also a resource. We have to find ways to really look at what firms like Redbubble and other Australian firms that are content users are doing and say: 'Do we want to have a country where we have innovation, where enterprising people can generate economic activity and where we can have the interests of producers taken strongly into account and the bargaining power of producers not eroded? Are there ways to reconcile those principles?'

I don't claim to have the answers to all these questions, of course. These are complicated questions. I certainly don't have a dog in the fight as to whether we should look after producers more, or tech firms more, or consumers more. But I do think all of those interests need to be taken into account, because we do have a very big opportunity before us with our innovation ecosystem. We do have the skills. We are an advanced economy, we have great skills and we have great people. We're a wealthy nation, comparatively, in world terms. We have this opportunity to really take our innovation ecosystem and use it.

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