#freeisnotfair: a response from the Copyright Agency

Lizzie O’Shea wrote in her recent Overland article How to think left on copyright: ‘A world where every person can read, listen and watch whatever they want at any time is now technologically possible.’

That might be true, but what O’Shea fails to acknowledge is that creating the things that we really want to watch, read or listen to, takes time, effort and money. So, while the current copyright regime certainly does not ‘compensate the majority of authors meaningfully’, it does give authors, and publications such as Overland,* who create original work from scratch, the right to seek payment and attribution for the copying of their work.

That is why the Copyright Agency and a coalition of groups representing Australian creators, APRA AMCOS, Australian Society of Authors, Australian Publishers Association, Books Create Australia, National Association for Visual Artists, Artists in the Black, Indigenous Art Code, Arts Law Australia, Screen Producers Association and Screenrights, launched the #freeisnotfair campaign. Because a good and fair copyright system rewards creators for their contribution to society; for the works we want to read and view.

In the US, Google digitised millions of books without compensation, or the courtesy of asking permission of authors. The US Authors Guild lost a decade-long battle for compensation because the courts held that Google’s digitisation was ‘fair use’. The US Copyright Office, reviewing the decision, said that ‘fair use’ is an inadequate policy solution for digitisation projects like this, and that there should instead be a licensing arrangement that delivers compensation to creators.

In Canada, changes to copyright law led to the education sector ceasing payment of copyright fees in 2013, resulting in litigation on a number of fronts on behalf of Canadian authors and publishers. A court recently found that the education sector’s actions had harmed Canadian authors and publishers. Four years down the track, the litigation is not yet finalised, authors and publishers continue to be deprived of income, and everyone remains uncertain about where things stand.

As Canadian author John Degen and Chair of the International Authors Forum recently wrote in the Australian Financial Review:

Australia should learn from the example of Canada’s terrible mistake. The only winners with weakened copyright and expanded ‘fair use’ are the wealthy offshore technology firms with business models built on access to masses of free content. Everyone else ends up poorer and with fewer rights. The argument that copyright somehow gets in the way of access is completely disingenuous. Copyright is about encouraging respectful, fair and sustainable access to cultural products. Those arguing otherwise simply want someone else to pay the bill.

That’s why in 2013, faced with the prospect of similar legal changes to those in Canada and knowledge of the Canadian experience, the Copyright Agency’s Board, made up of author, publisher, visual artist, journalist and independent directors, decided to establish a fund, that would be built up over time, to protect the society’s 43,000 members in the event of circumstances similar to those in Canada.

Another particularly powerful and disturbing example of the dangers of US style fair use is found in the case of famous US artist Richard Prince and his appropriation of the photographs by Patrick Cariou of Rastafarians. These photographs, which took Cariou five years to take through a long process of building trust with Rastafarian communities, and their appropriation, was also found by US Courts to be ‘fair use’.

Australia’s copyright system can continually be improved. But there are better ways to do it than merely importing a controversially complex copyright approach from the US. Our system needs to be more nuanced than that and there is scope for the government to facilitate discussions aimed at reasonable, sensible reforms.

A report by the Washington-based Pheonix Center has some light to shed on the kind of copyright regime we need in Australia – which is a far different market than the United States, with its 320 million people.

The report’s author, economist George S Ford, points out that there is zero evidence to suggest that relaxing copyright laws is beneficial to promoting ‘innovation’. He cites Ernst and Young’s cost-benefit analysis of changes to the Copyright Act 1968, completed for the Australian Government and released just before Christmas, which found that there is a distinct lack of evidence on the way copyright law is constraining the activities of Big Tech companies. Indeed, the Ernst and Young report noted that it is widely acknowledged that the ‘relationship between copyright flexibility and innovation is both limited and inconclusive …’

But as Ford’s economic analysis clearly shows, the opposite is true. He finds the key reasons that proponents for watering down copyright give, such as the lower costs of copying, distribution, and production, actually suggest that the rules around copyright should be made stronger – particularly in smaller markets that have high rates of copyright theft and high costs of enforcement, such as Australia.

Changes to Australia’s copyright legislation made just this year recently passed as non-controversial amendments, and are an example of how parties across the creator, educational and library sectors can work together to achieve sensible reform without eroding the vital rights of creators and creative producers.


This article was written in response to Lizzie O’Shea’s Overland article How to think left on copyright.


*Editorial note re. copying payments: Overland has a policy whereby 80% of copying payments are returned to the author; however, presumably due to the nature of how works are shared and assigned (via various syllabi) these days, we now receive payments for only a couple of pieces a year.

Please note that the copyright for all work published in Overland is retained by the authors. Moreover, Overland is committed to making all its work available for free for anyone with internet access to read.

Nicholas Pickard

Nicholas Pickard is Director of Membership & Communications at the Copyright Agency

More by Nicholas Pickard ›

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

If you like this piece, or support Overland’s work in general, please subscribe or donate.

Related articles & Essays