It’s rare in the age of mass surveillance and corporate dominance of the internet that we see a win for digital freedom. But the FCC’s recent ruling to preserve net neutrality – the idea of an equal flow of data on the internet for all content providers – is undoubtedly an enormously significant win.
The net neutrality ruling, and the grassroots campaign that led FCC Chairman Tom Wheeler to an extraordinary reversal of his position on the issue, is reminiscent of the campaign that stopped the US Congress from passing the Stop Online Piracy Act (SOPA) and the PROTECT IP Act (PIPA) in 2012. You might remember the campaign against the bills, which, at its peak, involved Google, Wikipedia, Reddit and a host of other sites ‘blacking out’ in protest.
SOPA and PIPA sought to crack down on internet piracy and copyright infringement, but featured extremely heavy-handed measures that would have given rights-holders (read: film studios and record labels) powers to essentially demand preemptive censorship of potentially infringing content on the internet.
The issue in the copyright debate is not whether copyright protections should exist for creatives (or ‘content creators’, in today’s parlance). Of course they should. But, familiarly, the debate has been thoroughly hijacked by corporations whose interests are in many instances antithetical to those of the authors and artists whose rights they proclaim to protect.
Interestingly, perhaps the most extreme example, as Reddit founder and prominent anti-SOPA campaigner Aaron Swartz protested, is in academia where academics forfeit their copyright for journal articles and receive no royalties, while the gatekeepers who digitise and store the journals make windfall profits.
The situation is not quite so dire for other creatives, but royalty payments are still extremely low as a proportion of rights-holders’ revenue. Ironically, royalties for creatives on streaming services like Spotify, often touted as a solution to piracy, are in many cases minuscule.
For activists, the crucial difference between the FCC’s ruling on net neutrality and the eventual backdown on SOPA and PIPA is that while net neutrality seems to have been safeguarded for the foreseeable future, the internet copyright war rages on.
Predictably, those pushing for a strengthening of copyright (and broader intellectual property) enforcement have retreated to the tried and tested vehicle for imposing unpopular legislative change with limited oversight: a free trade agreement, in this instance, the Transpacific Partnership.
Though the recently leaked draft of the TPP’s intellectual property chapter does not attempt to reassert the more extreme elements of SOPA and PIPA, it nonetheless proposes to extend the United States’ highly restrictive copyright provisions globally by pushing for extremely long (up to 95 year) copyright terms and criminal liability for copyright infringement.
Many countries involved in the TPP negotiations are opposed to these proposals, but Australia has emerged as the US’s closest ally in the negotiations. This is alarming, given the Australian Law Reform Commission last year recommended Australia move in the opposite direction, namely, towards providing protections for consumers by introducing fair use exemptions in Australian copyright law.
But it shouldn’t be surprising that the Australian government has mindlessly offered its support to the US copyright crusade. This is particularly the case in light of George Brandis’ efforts to impose a three strikes ‘graduated response’ scheme to tackle internet piracy, which would involve a series of warnings and eventual throttling or blocking of the user’s internet connection.
Brandis’ comments in the Senate suggest that the lack of balance in the copyright debate is explicable as a run-of-the-mill case of excessive corporate influence in politics. But there’s more to it than this.
Secretive and undemocratic governance, which criminalises previously non-criminal behaviour and pre-empts and presumes breaches of the law, is part and parcel of politics in the 21st century. This mindset, most evident in national security legislation, through mass surveillance, extensive government watchlists, drone strikes, etc., has crept into other areas of policy.
Copyright law is but one example, where, for instance, technologies that can be used to evade or subvert copyright protection software are potentially illegal under the US Digital Millennium Copyright Act (DMCA) even if there is no actual copyright breach. The TPP would extend this legislation globally.
Mike Baird might have been surprised that his innocuous Youtube campaign video was taken down from the site – due aptly to the use of REM’s ‘Everybody Hurts’ without permission – but he shouldn’t be. With a global copyright regime that included fair use provisions like those proposed by the ALRC, the videos likely wouldn’t have been removed.
Unfortunately, Baird’s colleagues in federal parliament, Labor and Liberal alike, are committed to retrograde change copyright legislation that will further entrench the power of mega corporations, while doing nothing to advance the interests of creatives or consumers. And this time, a win for the little guy doesn’t seem likely, with the TPP rumoured to be signed as early as next month.
Update: George Brandis is preparing to table a piece of legislation this week that, in short, would allow rights-holders to apply for a warrant to force internet service providers to block file-sharing websites. It’s quite a radical change, one that is being introduced without consultation, and would, in all likelihood, be very open to abuse.