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at the end of April, which contained a contentious recommendation that parallel import restrictions (PIRs) on books be repealed.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.