Graeme Philipson
December 20, 2016

Taking out the copyright garbage

Copyright

Taking out the copyright garbage

Greg Hunt: No trumpets heralded the launch of Productivity Commission report

Australia’s copyright laws have been a joke for years. Until 2006 it was illegal to record your own CDs onto tape for your own use. Today it remains illegal to copy a music track onto a thumb drive, for any purpose.

Copyright law in Australia is so restrictive that teachers can’t photocopy a few pages out of a textbook. Australia does not have the ‘fair use’ provisions that make copyright law in the US, which is known for its heavy-handed approach, at least usable for such trivial actions.

Many commentators have pointed out that Google would have been illegal if invented in Australia.

Now this running joke has a punchline.

The Minister for Industry, Innovation and Science Greg Hunt and his assistant minster Craig Laundy have issued a 100 word press release – in the shadow of Christmas, no less – announcing that a long anticipated Productivity Commission report on Australia’s intellectual property system has been released for consultation.

InnovationAus.com doesn’t usually like quoting from press releases. We generally prefer going to the source document to find the real story. But we’re going to quote this one in full, because it’s the shortest we have ever seen.

“The Turnbull Government has today released for consultation the findings of the Productivity Commission’s final report on its Inquiry into Australia’s Intellectual Property (IP) Arrangements.

“The Productivity Commission’s consultations were extensive and included over 600 submissions and four roundtables, six public hearings and over 800 research references.

“This is a report to government and we will consider its recommendations and undertake further consultation with stakeholders prior to a response in mid-2017.

“Consultation is open until 14 February 2017. Details about providing further feedback on the final report are available at: https://consultation.business.gov.au/Consultation. A copy of the report is available on the Productivity Commission website: http://www.pc.gov.au/inquiries/completed/intellectual-property”

That’s it. A full 103 words, including web addresses.

Now, call me old fashioned, but I reckon if the government was trying to hide something, they might give it the shortest press release in modern history, and send it out on a lazy summer afternoon a few days before Christmas when most people who write about this stuff have already thrown the kids into the car and set off for the grandparent’s house down the coast.

But not InnovationAus.com. Nor your faithful correspondent, who has been following the intellectual property debate in Australia for years and knows a fig-leaf when he sees one.

The Productivity Commission recognises the utter stupidity of the lack of a fair use provision in Australia, and has recommended its adoption.

But there is no certainty that the recommendation, or others in its report, will be adopted. Inviting comment on the report in such a low-profile manner is hardly likely to help matters.

InnovationAus.com asked both the Department and the Productivity Commission why this important announcement was given so little prominence that it may as well have been issued under the Official Secrets Act (don’t know what that is? Sorry, I can’t tell you.)

A spokesperson at the Department reiterated the line in the press release that it was a report to, not from, government, and that it was simply responding. Greg Hunt is not even in Australia right now (he’s in New York trying to convince aluminium giant Alcoa not to close its Portland smelter in Victoria).

A spokesperson at the Commission referred us to the Treasurer’s Office, reminding us that it was up to the government as to when to call for community and industry feedback, so long as this was done within 25 Parliamentary sitting days of the report being submitted (which happened on September 23).

We rang the Treasurer’s office and got a recorded message that they were unavailable. Let’s be charitable and say that the Government needed to consider the report and decided to ask for comment now, rather than leave it until January, when it would receive no attention whatsoever.

So, we’ve had our little whinge about the timing.

What then, does the report say? It is well written and succinct, and is worth a read. It does not pull punches and is remarkable for its clarity and forthrightness.

There is a handy one page summary at the beginning outlining its key points, which ends with the unsurprising statement that in Australia “reform efforts have more often than not succumbed to misinformation and scare campaigns. Steely resolve will be needed to pursue better balanced IP arrangements.”

We are yet to see such ‘steely resolve’. It is not apparent from the Ministers’ brief press release.

Other points from the ‘Key Points’ summary of this summary:

“Australia’s intellectual property arrangements fall short in many ways and improvement is needed to ensure that creators and inventors are rewarded for their efforts. Bu in doing so they must:

  • foster creative endeavour and investment in IP that would not otherwise occur
  • only provide the incentive needed to induce that additional investment or endeavour 
  • resist impeding follow–on innovation, competition and access to goods and services.

“Australia’s patent system grants exclusivity too readily, allowing a proliferation of low quality patents, frustrating follow-on innovators and stymieing competition.

"To raise patent quality, the Australian Government should increase the degree of invention required to receive a patent, abolish the failed innovation patent, reconfigure costly extensions of term for pharmaceutical patents, and better structure patent fees.

“Copyright is broader in scope and longer in duration than needed — innovative firms, universities and schools, and consumers bear the cost.

"Introducing a system of user rights, including the well-established principles-based fair use exception, would go some way to redress this imbalance.

“Timely and cost effective access to copyright content is the best way to reduce infringement. The Australian Government should make it easier for users to access legitimate content by:

  • clarifying the law on geoblocking
  • repealing parallel import restrictions on books. New analysis reveals that Australian readers still pay more than those in the UK for a significant share of books.
  • Commercial transactions involving IP rights should be subject to competition law. The current exemption under the Competition and Consumer Act is based on outdated views and should be repealed.

“While Australia’s enforcement system works relatively well, reform is needed to improve access, especially for small– and medium–sized enterprises.

“The absence of an overarching objective, policy framework and reform champion has contributed to Australia losing its way on IP policy. Better governance arrangements are needed for a more coherent and balanced approach to IP policy development and implementation.

“International commitments substantially constrain Australia’s IP policy flexibility. The Australian Government should focus its international IP engagement on reducing transaction costs for parties using IP rights in multiple jurisdictions and encouraging more balanced policy arrangements for patents and copyright.”

 

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