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Protect Australian Stories! The campaign against PIR reform

The Productivity Commission review of Intellectual Property Arrangements, released its draft report at the end of April, which contained a contentious recommendation that parallel import restrictions (PIRs) on books be repealed.

For those in the publishing industry, the recommendation re-opened the wound first caused by the Productivity Commission’s 2009 investigation into parallel importation. PIRs are a relatively arcane industrial matter, but the repeal proposal has prompted a flurry of responses from high-profile publishers, authors, and industry bodies. Thomas Keneally has penned a pro-PIR op-ed for The Australian Financial Review. The Australian Society of Authors (ASA) has created a change.org petition attacking PIR reform with more than 4,500 signatories, including such authors as Peter Carey, Mem Fox, Richard Flanagan, Susan Johnson and Christos Tsiolkas.

Invoking literary nationalism, the ASA petition argues that removing ‘PIRs on books will allow the mass importation of lower-royalty and royalty-free editions of Australian authors’ books into the Australian marketplace’ and suggests that keeping PIRs are necessary to ‘protect Australian stories’. While I support national culture and understand the utility of protectionism in a time of globalised financialisation, the rhetoric here – which maintains an uncomfortable proximity to the right-wing language of border policing (‘Protect Australian stories!’) – should give writers on the left pause. As the reliance on a dubious nationalism suggests, many of these claims are inflated.

Parallel import restrictions were enshrined in the 1991 revisions to the Copyright Act of 1968 and established what became known as the ‘30/90-day’ rule. Under the rule, if a book has been published overseas, Australian publishers have thirty days from the overseas publication date to purchase the rights and ‘publish’ it, and then ninety days to bring it to market. If they meet these conditions, then overseas copies of the book cannot be bulk imported into local bookshops for sale. These provisions, or so it is claimed, helped to prop up the local book trade by enabling Australian publishers to get the rights to successful overseas books and make a profit off of them that could then be reinvested into local Australian writers and works.

The problem, historically, has been that booksellers are in limbo during the first few months in which a successful overseas book has been published but is not available in Australia. Do they wait to import and lose out on potential sales? Do they import the book to sell and hope that no local publisher options it, putting them on the wrong side of the law? The reality is that many Australian booksellers – particularly independent bookshops that do their own buying – have imported books at points and in ways that probably did not conform to the 30/90-day rule. Worse still, Amazon and other foreign online booksellers do not have to play by these rules at all. The result is that local booksellers are held to higher standards than their overseas competition.

It was these kinds of discrepancies, as well as arguments about price gouging, that prompted a Productivity Commission into PIRs in 2009, which effectively pitted bookshops against authors and publishers. Although the Commission’s recommendation to end PIRs was not implemented, by 2012 the industry agreed by fiat to reduce the 30/90-day rule to a 15/15-day rule. The reason for this quick change of heart was simple: Amazon had become the biggest Australian bookseller in the interim, and if bookshops did not stock desirable international titles quickly, customers would just order them from overseas. The old PIR regime had little application in a post-internet world.

In this sense it is unclear how much, if at all, PIRs really matter in the current environment. As Peter Donoughue has argued, the current campaign against PIRs rehashes the old pre-Amazon arguments, incorrectly conflates territorial copyright with importation restrictions (that is, the end of PIRs does not mean the end of Australian copyright), and does not make logical sense on its own terms. Notes Donoughue:

The APA [Australian Publishers Association], for example, proclaims that there will be minimal advantage to consumers from abolishing the PIRs, yet such reform will cause Australian publishing to suffer immense damage. Both can’t be true.

In a sense, though, I am also sceptical that there is much to be gained from ending PIRs. Even booksellers are not particularly concerned about PIRs anymore, because online selling has so profoundly altered how the industry operates; bookshops are now far more concerned about competitive disadvantages created by local postage and GST costs.

But the current campaign against PIR reform bothers me for a few reasons. For one, those protesting most vociferously are the very ones with most to lose. As Jacinta Di Mase notes (in an anti-PIR reform piece), ‘research indicates that children’s books and commercial literary fiction by Australian writers and illustrators are the two areas that would be most affected by competing imports’. Thomas Keneally, Peter Carey, and Richard Flanagan all fit into this category, and thus their intervention is hardly disinterested. Di Mase even notes that ‘Flanagan’s home royalty would be undercut by cheaper imports’ and models the effects of this change in detail.

It’s fine, of course, for authors and publishers to argue in their own interests, but to conflate PIRs and Australian literature broadly misrepresents what is really at stake.

I also worry that the huffing and puffing about PIRs draws attention away from a more significant issue: the gutting of the Australia Council and the concomitant decreases in funding for literature. Literary organisations have not done well in recent OzCo rounds, and the current results of the first round of ‘new’ Catalyst funding have also been particularly bad for publishers and writing, with only $140,700 of the first $12 million dollar fund going to literary organisations.

Australia Council funding is particularly important for funding small publishers, who, as I recently argued, produce the vast majority of Australian literary works. Small publishers also tend to publish work that is cutting-edge or written by cultural and linguistically diverse writers – and therefore a less certain commodity in monetary terms. These same small publishers – with the exception of a few active rights-traders like Text and Scribe – are unlikely to benefit from PIRs. It seems odd to me that the very publishers who are the actual engine-room of Australian literary publishing are largely sidelined from this debate.

Finally, I worry that the nationalist stirrings of the PIR campaign mistake the threat to Australian literature, which is not external, but internal – specifically the neoliberal regime, which finds broad support on both the right and some segments of the ‘left’, that wants all artforms to declare their value in monetary terms and rebrand as creative industries. In many ways, the PIR campaign thus far actually reinforces market-based approaches to arts funding, such as when Thomas Keneally, Peter Carey, and Richard Flanagan rail against PIR reform by saying ‘We are not asking for money, or for a subsidy’. That’s fine for them, of course, but what about the poets, the short story writers, the experimental novelists, or any other writer who is not lucky enough to make money from the broader market? Some forms of literature absolutely require subsidy – and it is essential that sources of funding are not undermined by industrial campaigns.

In point of fact, many industry bodies and organisations are deeply worried about funding cuts, but their current activism is driven by pragmatism. The head of one industry body explained the organistation’s political strategy to me last year, saying that the goal was to ‘get in the room with the right MP and argue the case’. Another industry insider expressed particular frustration with the Coalition government, who, it was suggested, was far more likely to be swayed by backroom discussions then popular campaigns around issues. While I understand the pressure for industry bodies to pursue their members’ interests aggressively, I nonetheless think this manner of operating is problematic on two levels.

First of all, backroom dealing of this kind simply lacks transparency and is inherently unrepresentative. Certainly it was these accusations of backroom dealing and inadequate representation that undermined the fatally flawed Book Council of Australia initiative that was floated under George Brandis and scrapped by Mitch Fifield. Instead of uniting the sector, as it was supposed to do, the Book Council proposal created internecine disputes that left writing without any representative body in the arts funding sector. It is a black eye for everyone involved.

Second, the focus on pragmatism results in a short-sighted activism that is more or less the modus operandi of the book industry. Indeed, despite two federally funded government initiatives (the Book Industry Strategy Group, of which I was a member, and the Book Industry Collaborative Council), there has been essentially no increase in government support for books, even as Australia Council subsidies recede. The book industry has thus continually failed to turn government interest in the sector to any material advantage.

So let’s take the attacks on PIR reform for what they really are: larger publishers and established authors railing against changes to terms of trade that uncoincidentally happen to fatten their coffers. But it is an open question as to whether or not PIRs do much for broader Australian literary culture.

The fact is that most larger publishers divested themselves of unprofitable cultural publishing a long time ago – retaining only a thin wedge of established literary authors who are also saleable commodities. Very few larger publishers are actively involved in literary communities, produce literary magazines, publish poetry, or have broader cultural engagements beyond publishing books that will turn a profit.

And that’s fine, of course. Australia should have a healthy commercial book trade, and it is in the national interest to support that. But it is also in the national interest to support and encourage literary forms that may not be popular – and PIRs have nothing to do with that. The goal of cultural policy should be to address and correct instances of market failure rather than reinforcing them – and on that account, Australia’s current funding regimes are woefully inadequate. This, or so it seems to me, is a much bigger issue than maintaining a set of copyright protections that are increasingly irrelevant in a globalised book market.

 

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Overland is a not-for-profit magazine with a proud history of supporting writers, and publishing ideas and voices often excluded from other places.

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Emmett Stinson is a writer and academic who has taught at several Australian universities. His most recent book is Satirizing Modernism (Bloomsbury, 2017).

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Comments

  1. I am so tired of zero sum arguments about culture. No, defending the livelihood of writers against the real effects of abolishing PIRs doesn’t mean that we’re not fighting for arts funding. And let’s not go down the rabbit hole of nationalistic arguments as right now we watch maybe 40 percent of our indie organisations about to become threatened species. I know “ecology” is a cliche in talking about culture, but maybe these things are rather more interdependent than you seem to think.

  2. I didn’t realise I made a zero sum argument or that I claimed that affected writers don’t have a right to push their interests. In fact, I am pretty sure I said neither of those things.

  3. After our unsatisfactory argument on twitter, I am still trying to find this phantom article where you don’t argue that PIRs are distracting from the OzCo fight, or that PIRs are only defended by self-interested writers and publishers who don’t actually care about Australian literary culture, or that defending Australian culture is lamentable nationalism. I’m sure you wrote it somewhere.

    I agree that the Australia Council should be funding work that isn’t commercial but is of artistic value. Which doesn’t mean that commercial books are all without artistic value. Charlotte Wood’s The Natural Way of Things springs to mind here. I agree that the literary arts are not supported enough. PIRs provide a way for writers not to be mendicants in an endless funding cycle, but they have nothing to do with OzCo funding. You may have noticed that the Productivity Commission recommends that writers who lose out because of the recommendations get support from arts funding, which in the current climate is worse than risible, and can’t but make things more difficult for non-commercial writers. Not sure how that fits into your argument but at this point I have no idea what argument you think you’re making.

    In claiming that PIRs are irrelevant to literary culture and that the alarm of writers is merely self-serving and misleading, you could at least give authors who are bent on fattening their coffers the courtesy of their knowing where their livelihood comes from.

  4. On defending national culture: ‘I support national culture and understand the utility of protectionism in a time of globalised financialisation…’

    On writers and publishers defending their self-interest: ‘It’s fine, of course, for authors and publishers to argue in their own interests…’

    I don’t argue that commercial books are w/o literary value; I argue the pro-PIR lobby ‘conflate[s] PIRs and Australian literature [which] broadly misrepresents what is really at stake’. These are very different claims.

    I don’t say PIRs are ‘irrelevant’ but that ‘it is an open question as to whether or not PIRs do much for broader Australian literary culture’. Again, not the same claims.

    Your gloss ignores a major point in the article about how the industry has consistently failed to think strategically in a holistic way about intervening in gov’t policy.

  5. Emmett is basically correct here. More importantly, his argument is a darn sight more fair-minded and disinterested than most of what has been said on the topic. I spoke to quite a few good independent booksellers after the last PIR wars. Most had started out in favour of cutting PIRs purely out of self-interest but were corralled and coerced into opposing them for reasons of literary nationalism. Once the dust had settled, nearly all said they felt fundamentally betrayed and taken for a ride by the PIR preservation lobby. That is, for all the talk, nothing changed.

    His point about online retail eroding territorial copyright is, of course, accurate. But it’s just part of the picture. The historical context of territorial rights sales involving ANZ have always privileged multinationals and made it near impossible for small Aussie independents. Because UK publishers have always seen ANZ rights as part of their colonial legacy it has been next to impossible to successfully publish British books here or to get the Yanks to split rights between UK and ANZ. It only works if you control both UK and ANZ markets — hence Text selling out to Cannongate and Scribe and Hardie Grant setting up shop in the UK.

    In practical terms, rights sales worked for Oz publishers for a very brief window in the nineties — and worked best for those publishers whose native instincts were more akin to property development and hence had an eye for an undervalued asset. This had bugger all to do with culture.

    The argument that PIRs help foster Oz literary culture and support writers is a bit like a property developer arguing that they’re only building high rise apartments for the well-being of the tenants and that they naturally have their best interests at heart.

    • what’s wrong with hight-rise? stops the spread of dystopian suburbia that trashes nature itself in its endless spread into nowhere.

    • John, I wonder if you could expand on what independent booksellers hoped would happen after PIR was battled over last time? I understand (or sense) that you have little sympathy for publishers on price-gouging grounds – but is it not the case that a post-PIR landscape simply passes commercial benefits to the parent companies of the big publishers, screws the independents (responsible for many of the better and most Australian-centric publishing initiatives), and will not lower the price for consumers at all?

      At the moment, what seems to be a full-scale war against the arts in this country is being viewed – with regard to the conversation around literature at least – as merely a bunch of cashed-up publishers living fat off government handouts and wanting the status quo to remain.

      If getting rid of PIRs does little good (in terms of cheaper books) and much harm (in terms of small and innovating presses disappearing, shrinking, or never existing to begin with), what is the point of them except to gratify a government looking to (a) look reformist in an economic-rationalist way, and (b) put a bunch a lefties squarely in their place?

      • Very few small publishers engage in rights trading actively–off the top of my head, Text, Scribe, Hardie Grant (though they aren’t really small), Spinifex, and that’s about it. You will note all of those publishers have been active in opposing PIRs–the others not so much. PIRs do little for small presses, so this is a distorting claim.

        • Is your name John?

          Still, if you’re going to reply a question not asked of you, I’d welcome a clarification. How can you possibly say that Text, for example, “have been active in opposing PIRs” when Michael Heyward has written a prominent piece in The Guardian this week arguing that their removal represents “an assault on [Australia's] literary culture”? The claim he makes for their retention is persuasive on a number of fronts, but perhaps you have not read it.

          Either way, I certainly will not note what you claim, which is about the most distorting thing I’ve read in this week. Given the week it has been in the (shrinking) world of Australian arts funding, that is really saying something.

  6. I was going to order an Australian print non-fiction book for US$35 import and guess what in Australia? $109. OK just one example. But here it is price gouging all the way. Not only that what is on offer is limited. Not global. The only way around that is buying on the internet. It opened up resources otherwise totally unavailable here because it would be non existent as in not even being published. As for local authors. They trey to hard to be themselves. The Aussie lean-to makes the story fall over. Sort of self pretentiousness which given we are all more global than local thus fails to make a mark. Got themselves to blame.

  7. “This, or so it seems to me, is a much bigger issue than maintaining a set of copyright protections that are increasingly irrelevant in a globalised book market.”

    It is indeed, Emmett, so I must express my disappointment that your drive to be even-handed to the point of mincing has resulted in a column that fails to advocate for the country’s literary culture at a critical moment – and then ALSO fails to be even-handed.

    While it is absolutely right that their interest be explored from all angles, it beggars belief that Carey, Flanagan and Keneally would publish their high-profile letter out of a sense of wanting to maintain “fat coffers.” This language presents their activism in terms that are both unfair and implausible – and yet a government that is driving arts funding into this state of “woeful inadequacy” comes in for no such rhetoric.

    Your column has been cited in other forums with a note of ‘a-ha!’ triumph by arts-loathing economic (ir)rationalists with only a vague understanding of PIRs and virtually none at all of how literary culture operates or what it contributes to the country (both in economic and intangible terms). You may say that it’s not your responsibility how others use or mis-use your words, but you have nevertheless published a commentary that adverts to “larger issues” without naming them, and characterised PIR abolition as no big deal. (Please don’t deny that you did – I have read your piece more than once, and such is its tone.)

    If a company – and yes, especially a small publisher active in the rights market; we don’t have so many, and we are about to have none – cannot spend money in buying rights without having these rights respected, how is this not an erosion of the concept of copyright? As for small publishers NOT active in the rights market (and now with zero hope of ever entering it), do you think an Australia that is dismissive of writers’ intellectual property, and that is flooded with US texts, proposes more space for them or less?

    The PC report that espouses PIR abolition also espouses a reduction in copyright from 70 to 15-25 years. You know this, yet did not mention it. The PC report advocates for US-style ‘fair use’ exemption for copyright breach. You know this, but did not mention it. These measures are an outrageous attack on writing by a greedy and literature-despising government with TPP in its eyes. Your failure to even begin to say so smacks of one who has held government advisory positions in the past, and perhaps aspires to do so again.

    If you think that insinuation is a bit rough, be grateful I didn’t mention the fattening of any coffers.

  8. You’ve found me out: my secret dream is to do more unpaid government work on top of my full-time job, raising two small children, and writing the occasional column for the website of a literary journal. Clearly this is self-interest.

    I mildly support PIRs and say so in the column. I think they are a ‘big deal’ for certain segments of the industry; I dispute that they are a ‘big deal’ for Australian stories or Australian literature. I think these unfounded claims made by affected segments of the industry are linked to continual (and continuing) strategic failures to intervene effectively in government policy and public perception.

    As to the small pubilsher thing–there are over a hundred small pubs in Australia, and only five or so active rights traders. So no, PIRs aren’t particularly relevant to small publishers.

    And, uh, no, I don’t take responsibility for what other people say about the article, because that would be insane.

    • You “mildly support” PIRs and say so in your column? Alison Croggon above struggled to accept that, and in this I must join her number. I suspect it is also news to John Hunter, who wants them gone and calls your column “basically correct” as well as “fair-minded.” I think he is coming from a well-informed place and would like to know more about his view, but I must reiterate mine that your column gives comfort to the anti-PIR brigade regardless of what you may think it does.

      No doubt you are correct when you say the arts sector fails in its strategic approaches and PR endeavours. Success is elusive given what a tough crowd the Australian public can be: as soon as any sort of nuanced argument is made in support of funding or (gasp) industry protection, a horde of blinkered vulgarians emerge to recite slogans about artists being bludgers and rent-seekers who need to learn about being self-sufficient in something called “the real world.” Such rhetoric is familiar to us all, as is the dispiriting pattern that sees economic rationalism cited as the reigning doctrine, then summarily ignored when the impregnable economic case for funding the arts is made.

      Art is Australia is in desperate straits, in large part because a latent counterforce of resentment distorts the collective view of what it is and what it does. In such a climate, the need for industry commentators to be unequivocal when they are on the stage – to impart clear facts and make a clear case – is imperative.

  9. From the article above: ‘In a sense, though, I am also sceptical that there is much to be gained from ending PIRs.’

    I don’t say the arts sector fails (that’s another discussion). I think industry has. Publishers have been ‘unequivocal’ through two govt reviews. What has it gotten them?

  10. ‘Emmett’,

    Scepticism “that there is much to be gained from ending PIRs” does not register on any scale by which support for them might measured. Even (sensible) proponents of PIR abolition know there isn’t much to be gained from them (although, true to form, the government has done no modelling). The essence of the discussion is, of course, what will be lost.

    Which brings us neatly to what Australian publishers might say PIRs have “gotten” them. For one thing, the publishers in question actually exist – and I reckon they might chalk that up as a win.

    A glance at today’s latest Australia Council cuts suggests they have a point.

  11. So even though I’m sceptical of the benefits of removing PIRs I’m apparently also supporting some shadowy ‘anti-PIR brigade’? That doesn’t make sense.

    • No, Emmett – it doesn’t make sense. And for that reason I didn’t suggest it. You are over-reading the play, seeing something that is not there. I do not think you are part of a shadowy “anti-PIR brigade”.

      Originally your column left me with the impression that you think PIRs are neither here nor there, defended as they are by a literary elite with the fatness of their coffers in mind (it perturbed me that you departed from the safe and circumspect language of academe only when some pro-PIR ‘fat cats’ came into view). I was therefore surprised when you characterised your position as one of “mild” support for PIRs, and felt moved to point out that your support is so very mild (indeed, so implicit and non-positive in nature) as to vanish in any meaningful sense – to be read, in fact, by PIR abolitionists as an endorsement of their position, not your own. This situation is hardly helped by your complaisant quoting of Peter Donoghue, who is virulently anti-PIR. He claims (and you quote) that the pro-PIR position of “minimal advantage to consumers” and “immense damage” to Australian publishing cannot be mutually inclusive, and yet I for one find it eminently plausible to imagine the post-PIR savings of consumers funnelled to American coffers (always pretty fat) while Australian publishing houses wither on the vine and contribute less and less to local literary culture. This is precisely how global neoliberalism routinely operates, and Donoghue’s claim represents the fault-line around which you might have taken a concrete position of some kind. And yet you departed the scene with a “PIRs are neither here nor there” gesture and got down to what felt like your actual business: a creeping disquiet (in all its campus-left glory) about the pro-PIR campaign.

      (a) “For one, those protesting most vociferously are the very ones with most to lose.” Well, that is how life tends to work, Emmett – take any scenario on the planet since the beginning of time. (This was, indeed, the second-most idle observation you made in your piece, the first being the decidedly politician-esque, “While I support national culture and understand the utility of protectionism in a time of globalised financialisation…”)

      (b) “It’s fine, of course, for authors and publishers to argue in their own interests, but to conflate PIRs and Australian literature broadly misrepresents what is really at stake.” No – proponents of PIRs argue that PIRs foster Australian literature, but they do not conflate the two. You, Emmett, conflate the two, in order that you can then dissect the two, and so give your column a raison d’être.

      What remains clear is your belief – unimpeachably correct – that the arts is under-funded and that a better strategic approach is required to address the grave damage being done by an anti-arts government. I will always applaud any calls you make for that, I simply think the right laughs when it sees our better and more prominent voices tied up in knots over fear of sounding jingoistic (ludicrous when one considers the breadth of voices Australian literature is striving to encompass, and the unprecedented openness to the world Australian readers enjoy in online age), or so exercised by distinctions-without-differences that robust positions are necessarily precluded.

      Really, Alison Croggon had it right at the very start: zero sum games were created and pursued here, but there was scant justification for them, and even less merit.

  12. So there’s a pro-PIR campaign that admits PIRs are just about supporting one segment of the industry? I’d love to see evidence of it.

  13. Excellent – at least someone who is not under the illusion that PIR is anything more than a protectionist racket.
    When you can buy the book you want from Amazon for a 1/3 of the price at Readings then you know PIR is a problem.

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