1 August 20175 October 2017 The law / Copyright How to think left on copyright Lizzie O'Shea The debate around reforms to copyright does not fit neatly into traditional political paradigms because: – writers and other creatives who make use of copyright protections are a criminally underpaid section of society, even though they contribute to our lives in immeasurable ways – the internet has facilitated greater access to knowledge and information than at any other time in human history, but this often happens in breach of intellectual property laws – copyright law in many jurisdictions now extends well beyond the life of the author, with law reform powered by enormous rights-holders, like the Walt Disney Company; it is also these mega-corporations who predominantly benefit the most financially from copyright. And yet it is the struggling writer or artist that is the face of campaigns like #FreeIsNotFair, currently running against reforms aimed at introducing ‘fair use’ provisions into Australian law. Currently, Australian law permits ‘fair dealing’ – which is a restrictive exception to copyright protections, determined by a legislative list. The alternative is ‘fair use’, the concept used in US law. It allows copyrighted works to be used without permission if the use meets principled-based criteria. It is more flexible and liberal in application than the current Australian law, and arguably aligns better with mainstream understandings of fairness. Many people who share whole or sections of creative works (from poetry to images) online would not satisfy the current fair dealing exception, even when done in good faith or with attribution. As the Productivity Commission put it: ‘Australia’s exceptions are too narrow and prescriptive, do not reflect the way people today consume and use content, and do not readily accommodate new legitimate uses of copyright material.’ The Copyright Agency, which is leading the campaign against the potential introduction of fair use, collects fees and distributes royalties to members for use of their creative works. That’s the same agency that has hoarded a $15 million political fighting fund to resist these reforms from money paid by public institutions for orphaned works that ought to be distributed to members. Copyright more generally creates a tension between free access to knowledge and information, and a decent wage for cultural producers, two causes that ought to be close to the heart of the political left. But the politics of these debates start to get slippery pretty quickly. To begin to untangle these questions, it is important to acknowledge what it is that copyright law actually does. Copyright serves to turn something creative into a product. It is a quintessential example of commodity fetishism in action: the value of a text, play or film becomes reducible to its market worth. The state grants a monopoly over the reproduction of that work, and the rights holder is put in charge of seeking that rent (or selling the rights to others who do this). The more popular the creative product is in the market, the more valuable it is, such as the popular mega-franchises of Marvel Comics or Star Wars. In other words, the price attached to creative labour is not based on effort or time, and it is certainly not based on some objective criteria of quality, because no such standard exists. This very capitalist process is one of the main ways in which writers and other creative people can access payment for the work that they do – and if you believe the lobbying agencies, it is vital to the wellbeing of said artists. But this claim starts to lose its lustre when you realise that most writers do not make a full-time living from writing. Most Australian authors for example earn only $12,900 from their writing, accounting for a third on average of their total income. More generally, half of all artists earn less than $10,000 from their creative income (these figures are nearly a decade old though it would be fair to imagine it remains around the same today). The very legitimate desire to be compensated for their contribution to the world is why many people working in cultural production are keen to defend the copyright regime. But for a variety of reasons, it is reasonable to argue that compensating the majority of authors meaningfully is not actually what the regime does. There are other things that copyright law does do, however: it has very serious implications for access to knowledge in the digital era. Wikipedia has joined the campaign for fair use, on the basis that much of its content would not be able to be lawfully published if the site was hosted in Australia. We have also seen significant law reform efforts aimed at prosecuting online piracy, including the introduction of a website blocking regime for sites associated with copyright infringement. There are other more extreme effects, particularly in academia, where copyright serves to protect monopolies in academic publishing, meaning that the public pays twice: first to conduct the research itself, and second to gain access to the publishing of that research in a range of privately owned journals. (This has been the subject of litigation in the US in recent times, with the popular pirate sites Sci-Hub and LibGen being the subject of a $15 million award in damages for breach of copyright.) Outside of the academy, the actual public rarely gets to see these kinds of publications, resulting in a black market for journal articles. (Similar rorts exist in medical research, where intellectual property protections allow private universities to use public money to generate patents that belong to the university.) This is why efforts like the Conversation are so important – it is a place for academia to publishing their work in accessible language, freely available for the public to access. The role of intellectual property law in the age of the information economy is a hugely complex topic, and parsing out the various roles and objectives of copyright (let alone intellectual property law more generally) is a monumental task. Nonetheless, it would be a mistake to buy the line that protecting copyright (and resisting the liberalisation of the regime via fair use) is synonymous with the interests of artists. Cory Doctorow argues that the place to start is by asking: what do we want copyright to do? We want for those who contribute to cultural production to be paid a decent living wage and be acknowledged for the work they do. We also want to avoid reproducing knowledge gatekeepers, especially in an age where digital technology makes it possible to avoid this. It is fair to reject a world where Google scans every book and tracks who reads it. But we should also appreciate how a liberated digital library freely available to the public is a radically democratic concept. A world where every person can read, listen and watch whatever they want at any time is now technologically possible. This kind of potential for learning and cultural exchange is perhaps only comparable to the invention of the printing press. It is not just a matter of knowledge, creativity and collaboration, it is also a matter of legal equality. Consider that legal records in the US are copyrighted and kept behind a paywall, despite being public documents – something the late Aaron Swartz campaigned against. Doctorow argues that ‘there is only one regulation that would provide everyone who wants to be an artist with a middle-class income. It’s a very simple rule: “If you call yourself an artist, the government will pay you £40,000 a year until you stop calling yourself an artist.”’ He labels this as improbable, but I am perhaps a little more optimistic. One of the appealing qualities of a universal basic income is that it has the potential to facilitate profound new levels of creativity and free expression, as people are freed from their day jobs to do what they love, whether the work is palatable to the market or not. But even outside of universal programs, it is possible to see how freelance writers could organise and demand better rates of pay from profitable publications, and better public funding for cadetships and grants, much in the way that entrance into academia is sponsored by widespread public spending on PhD scholarships. These programs could be funded by increased corporate taxes, perhaps even targeting the technology companies that benefit from the free flow of information, such as Google and Amazon. Once we have separated out the problem of underpaid cultural producers, we can start to think about other things we want from copyright. In the digital age, attribution is increasingly important, as the social and cultural value of a creative work can be inflated through the simplicity of sharing. Without proper respect for attribution – culturally, even legally – the value this creates for the author and their platform can be lost or usurped. Equally, we should be thinking about how moral rights of authors can be better protected. Consider the sad case of Matt Furie, creator of Pepe the Frog, who attempted to save his character from appropriation by the far right, before opting instead to kill him off. It is hard to imagine how this could have been avoided, except perhaps by improved cultural respect for attribution. And this is where regimes like ‘copyleft’ become relevant. Originating in the free software movement of the 1980s, copyleft sought to separate out the various rights protected under intellectual property regimes, allowing authors (originally of software) to waive some rights but not all. Authors could explicitly allow sharing, but not selling, for example, modification but only on condition of sharing, or combinations of all these things. These are the historical foundations of schemes like Creative Commons, which give authors greater control over how their work is used, and also returns some power into the hands of users and readers. Analyses of these more flexible regimes, which more directly speak to the needs and desires of authors and users/readers, are needed with urgency, and it seems like a shame that we are instead locked in a pitch battle between #FreeIsNotFair and #FairCopyrightOz. There are no shortcuts to campaigning for a properly paid class of cultural producers – investing in defending a restrictive copyright regime as a substitute for this potentially creates more problems than it solves. We need to find ways to make use of the possibilities on offer from networked digital technology available for everyone. Image: Book cover image of George Orwell’s Nineteen Eighty-Four – the novel is currently out of copyright in Australia. Lizzie O'Shea Lizzie O’Shea is a lawyer. Her book Future Histories (Verso 2019) is about the politics and history of technology. More by Lizzie O'Shea 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 First published in Overland Issue 228 24 August 202120 September 2021 Writing The story of a take-down Pip Adam One Sunday night a few weeks ago, I received an email from Podbean informing me my podcast had been taken down in response to a complaint that the content on the first ever episode, back in 2014, infringed on ‘intellectual property rights worldwide’. The complaint had come from AXG House, an ‘automated DCMA take-down service’. 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