Copyright Experts: Fair Use is Not Getting a Fair Deal in Australia

Fair use is one of the biggest undelivered promises of a report of the Australian Law Reform Commission to the Australian government two years ago, which recommended improvements to Australian copyright law. Instead of delivering a fair use exception, the government slapped users with onerous new enforcement provisions such as SOPA-style web blocking and data retention, along with a now-shelved attempt at a graduated response code for penalizing users suspected of infringement.

Strangely, these new strict enforcement provisions have failed to transform Australia into a more innovative and productive economy, and so the government has finally turned its attention back to other copyright reforms such as fair use, by way of a new inquiry of its Productivity Commission. Cue the entry of Australia’s big media and entertainment conglomerates, who funded a fear-mongering report by PricewaterhouseCoopers (PWC) claiming that the introduction of a fair use exception to copyright would bring near-apocalyptic consequences for Australia’s creative sector, while failing to deliver significant benefits.

Economics is an inexact science, but policymakers give economic data a lot of deference, even when they don’t quite understand it. Even so, a lay person’s reading of the PWC report is enough to exposes how ridiculous its conclusions are. Just to take one example, one of the sources used by PWC for their data is four-year old data from Consumers International, which rates countries according to the flexibility of their copyright laws. Because the PWC report can’t find a strong correlation between copyright flexibility and GDP per capita in those countries, they conclude that “a host of other factors explain GDP per capita than copyright flexibility alone”, as if fair use proponents had ever claimed otherwise. It so happens that this Deeplinks author was also the editor of the Consumers International data set cited by PWC, and knows its limitations quite well; suffice it to say that it can’t be used to draw any conclusions one way or the other about the effect of copyright flexibility on GDP.

There are, however, narrower case studies that can be usefully used to illustrate the real benefits of fair use to users and innovators; and these, the PWC report largely ignores. Thankfully, some such examples are given in a counter-report released this week by Global Expert Network on Copyright User Rights, authored by IP professors from Australia, the USA and Canada. As this counter-report explains, these benefits include the legalization of many fair use activities and the industries that support them, including time-shifting of lawfully-acquired content, reverse-engineering, cloud services, and text and data mining.

The authors of the counter-report conclude:
None of the claimed costs of fair use identified in the PWC Report are likely to occur. What is likely to follow fair use is that innovators and creators in Australia will find it easier to do their work and the providers of new technology will find it easier to market their products. These will result in modest gains to Australian society over time, likely with little in the way of costs. Further study of the impact of fair use in other countries is under way and well deserved. But the PWC Report does little to add to that endeavour. 

Let’s hope that the Australian government casts an appropriately critical eye over the industry-funded PWC report, and finally gives fair use a fair hearing.