Will Australian Government Use Cost-Benefit Analysis To Kill Off Fair Use Proposal Once And For All?

Discussions about copyright reform in Australia are now entering their fourth year, and the longer they go on, the worse the proposals become. That’s in part because there has been a change of government in the interim, and the present Attorney-General, George Brandis, has made it clear he’s firmly on the side of copyright companies, and indifferent to the Australian public’s concerns or needs in a digital world.

One big problem for him and his maximalist friends is that a key recommendation of the Australian Law Reform Commission (ALRC), in its extremely detailed and rigorous analysis of the state of copyright in Australia, was to introduce a new fair use provision. This is absolute anathema for the copyright companies, which seem to hold that the law should only ever be changed in their favor, imposing a kind of copyright ratchet that prevents the public from gaining any substantial new rights. Simply dropping the fair use idea would be too obvious, so a way needs to be found to kill it off without causing an outcry against the Australian government’s blatant favoritism. As ZDNet reports, maybe Brandis has found what he is looking for:

The Australian Attorney-General’s Department has commissioned a cost-benefit analysis into the recommendation by the Australian Law Reform Commission (ALRC) to implement a fair use provision in the amendments that the government is proposing to make to the Copyright Act in order to adapt to the digital world.

The economic analysis, announced on Wednesday, will examine the cost effects that fair use would impose on copyright holders along with copyright user groups.

Although that sounds perfectly reasonable, the ZDNet story adds some important historical context from a year ago that Brandis probably hoped nobody would remember:

Brandis again affirmed his partiality toward content owners, claiming that the recommendation to implement a fair use defence was “a controversial proposal” and would weaken the rights of copyright owners.

“In considering the recommendations, we will be particularly concerned to ensure and we will approach the consideration of the report with the view that no prejudice be caused to the interests of rights holders and creators,” he said in February 2014.

Since by its very nature fair use allows the public to use copyright material in various ways without needing to pay a licensing fee, this means there will inevitably be some “prejudice” to the copyright companies, although minor in comparison to the major gains for eveyone else. However impartial and balanced the cost-benefit analysis will be, it is bound to expose the fact that if the public gains any new freedoms there will be a theoretical loss for the copyright holders.

And that, presumably, will allow Brandis to refuse to implement the ALRC recommendation on the grounds that he must defend the interests of creators, even though they would be among the greatest benefactors of a fair use provision, which would allow them to use existing works in new and exciting ways. But who cares about art when corporate profits are at stake?

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