The only way to fix copyright is to make it fair



This article is by Nicolas Suzor, Senior Lecturer, Faculty of Law at Queensland University of Technology. It originally appeared on The Conversation.

analysis Everyone knows there’s a problem with copyright. Artists get paid very little for their work, and legitimate consumers aren’t getting a very fair deal either. Unfortunately, nobody agrees about how we should fix it.

Speaking at the Australian Digital Alliance forum last Friday, the Attorney-General and Arts Minister George Brandis said we might have to ask Internet Service Providers (ISPs) to police copyright, in order to deal with “piracy”. Last year, the High Court in the iiNet case thought it wasn’t a good idea to make ISPs responsible for protecting the rights of third parties.

Now, Senator Brandis suggests that perhaps we should change the law to require ISPs to warn subscribers when a publisher makes a complaint against their household. Then, ISPs would reveal the identity of subscribers who had multiple allegations (in the best case), or slow or disconnect their service (in the worst case).

These schemes have been trialled in New Zealand, France, the UK and the US, and there is no evidence that they actually work. The huge problem is that if a warning system is going to have any deterrent effect, it likely needs penalties to be imposed in massive numbers.

To keep costs down, we will have to cut corners with due process. ISPs simply aren’t equipped to interpret copyright law, adjudicate on the facts, and impose appropriate penalties. In our system of rule of law, only Courts can be trusted with these sorts of powers.

People are losing faith in copyright
The real problem with copyright is that it is losing its moral force. The music industry got a bad name for itself many years ago, when it became apparent that only a tiny proportion of artists make money from even quite successful albums.

The way publishers have reacted to the internet has alienated even more people. To crack down on pirates, copyright law has been getting stronger and stronger for decades.

But treating audiences and fans like pirates is only making the problem worse. If people don’t care about the law, they’ll only follow it when they have to. That’s why people don’t jaywalk in front of police officers.

The only way to enforce a law that nobody cares about is to have massive penalties and constant surveillance. The US already tried introducing massive penalties – defendant Jammie Thomas-Rasset was fined US$222,000 for sharing 24 songs. It hasn’t worked.

The industry has also tried to convince consumers that copying is wrong. It uses language such as “piracy” and “stealing”, and ads like “You wouldn’t steal a car”. It’s not hard to see that these don’t work: you wouldn’t download a car either.

Making copyright fair
The only way to fix copyright is to restore its legitimacy. This means not treating consumers like pirates, and instead ensuring copyright is a fair way to organise our creative industries.

In practical terms, this means removing many of the barriers Australians face to actually paying for content. Australians can’t get access to foreign services such as American providers of on-demand media streaming Netflix and Hulu, or even easily stream Australian sport or television.

The lack of competition also drives up prices – Australians pay much more for books, music, movies, games, and computer software than people in other countries. A parliamentary report, At what cost? published in July 2013, found that, on average, eBooks are 16% more expensive, music costs 52% more, and games are 82% more expensive in Australia!

Then there’s a lot of restrictions on devices – if you buy a Kindle book, you’re locked in to Amazon’s devices or apps forever. Even worse, the industry continues to enter into exclusive deals that just drive people to infringe copyright – such as American cable network HBO only allowing Australians to legally watch the hugely popular fantasy television series Game of Thrones if they sign up to Foxtel! In general, it seems that Australians really do want to pay for access to content, but we don’t like being ripped off. The way to fix copyright is for the industry to let Australians pay for access.

Making copyright law understandable is also important. Senator Brandis has pledged to simplify copyright law, calling it

“overly long, unnecessarily complex, often comically outdated and all too often, in its administration, pointlessly bureaucratic”

This is great news, but we need to do more than that. Copyright law needs to be both simple and fair. Last week, the Australian Law Reform Commission recommended in a report on the digital economy that copyright should be changed to introduce a “fair use” right, which would legalise many things that most of us often assume are already legal. Fair use allows people to do things such as rip a DVD to their tablet or post a video on YouTube of their baby dancing to the radio.

Fair use also helps artists – it just might have prevented Australian rock band Men at Work from being sued for using two bars of the old Kookaburra Sits in the Old Gum Tree tune in Down Under.

Groups representing authors are really worried about fair use, but they shouldn’t be. Mainly, it allows types of uses that don’t harm authors. What it doesn’t do is allow what the industry calls “piracy”.

The most important thing fair use does is help distinguish “piracy” from what ordinary consumers and creators do all the time. If it can do that, there’s a hope that we might have copyright law that people believe in. This will work out much better, in the long term, than treating consumers like pirates.

Nicolas Suzor does not work for, consult to, own shares in or receive funding from any company or organisation that would benefit from this article, and has no relevant affiliations. This article was originally published on The Conversation. Read the original article.

The Conversation


  1. I think also copyright needs to be of a reasonable term. The current terms are far too long. Not more than 20 years should be the limit.

    • Isn’t that nicknamed the Mickey Mouse extension? Everytime Mickey is about to become public domain, copyright’s period is extended.

      Also, my opinion here: Copyright wasn’t created to let creators wring every last cent out of what they produce. It was created as a short exclusivity, to encourage creators to keep creating. Your work about to enter the public domain? Either compete with the competition, or create something new.

      • Actually ‘Steamboat Willie’ is out of copyright and in the public domain in Australia, that’s more of a driver in the USA.

  2. Personally I find the fight to ¨Make them SELL us things fairer¨ funny it being so at odds with Australian´s actual behaviour. The Copyright Industry railed for years against the use of VCRs, and the entire population of Australia completely ignored them, and continued to use VCRs, nobody pleaded to PAY to use their VCR, and eventually the Law was changed to match actual behaviour. Australians will continue to use file sharing services, no matter what the Laws says, or the cost may be reduced to, eventually they are going to have to treat file sharing amongst individuals in the same way they ended up treating VCR use in the home. Well, that’s my opinion anyway.

    • A key difference between the two is that there was (still is) no way to detect and identify those who record things onto their VCR. With filesharing there is.

      As long as the copyright industry thinks it has a chance to get its way it will try. This time the government seems keen to help them out.

      I have no doubt that the coalition will try to push this onto australians no matter how much we protest. It wont be like the net filter, where it infringes on our rights etc. They will simply argue that laws are being broken and that something needs to be done about the rampant piracy in australia. All the while ignoring the issues with copyright and the backwardness of the industry. If you argue against it, then your condoning piracy… how dare you!

  3. Whilst I agree with this entire article, I’ve been reading articles like this on copyright reform for a number of years, and the reforms always seem to go in the opposite direction to that which seems logical or recommended by experts in, and scholars of, copyright.

    My cynicism balance has been tipped for so long and so many times that I’m numb to this discussion.

    I know what’s going to happen, you all know what’s going to happen. I hate that I feel like that, but that’s how it is, and it’s a destination I’ve been led to by a logical summation of the history of “copyright reform”.

    In the immortal words of Hugo Weaving

    Maybe if Ludlam was in charge of it I’d feel differently, but Brandis? We’re done.

    • This is how I feel about most issues in most areas at the moment — I feel a little fatigued because those in power consistently ignore any chance at progression.

      • I may be going a little conspiratorial or drawing a too long a bow here, but I’m getting a sense that society has progressed to a point that it has outgrown the way it’s governed. The two party system falls down due to a public that’s better informed, and it’s better informed because of the progress of technology making more information available more quickly and more accessibly.

        What’s best for a country as a whole, or society as a whole, must transcend the fundamental ideological differences between the two major parties. Currently we have a pendulum that swings one way then another; surely it would be more efficient in myriad ways to minimise the distance between the two end points.

        • > surely it would be more efficient in myriad ways to minimise the distance between the two end points.

          Here we go again with you weird irrelevant people.

          Let’s start with Question #1. How does this help Uncle Rupert? Moving on to Question #2: Would Uncle Rupert approve of this? And let’s finish with Question #3: Have you run this by Uncle Rupert or one of his deputies?

          If we take away the dichotomy, then what is going to take its place to entertain you? Actual informed discussion in the public about public policy? Please, if you’re not told what to think it’ll be chaos! I don’t think you want that. You want politics and drama and Labor backstabbings is what you want. Let the adults handle the policy, like this copyright reform stuff and TPP, we’re making the decisions you don’t care about thanks to our decision to make you not care about it.

          • If we take away the dichotomy we’ll have all the movies and music we ever wanted to entertain us, and we’d be able to eat it all from our own lounge rooms whilst the kids are also eating theirs in their bedrooms.

            We wouldn’t need to throw our 2 cents worth into political debate anymore, we’d have more important things to do such as seeing how Mr Bourne gets out of his latest scrape.

            Love your work quink.

            P.S. Could we add “Open Source is communism” to the current marketing agenda?

          • Basically, my point is if there’s a – what could you call it – impedance mismatch between our content (i.e. what we work out content-wise with Abbott’s office, for example) and our spend then our shareholders get antsy. If you don’t have the red vs. blue narrative then how the hell are you supposed to move units, anarchist? How are you supposed to get ad spend when the populace at large runs of and does its own thing or actual thoughts about policy at large start to infect them? What are we gonna do – actually do investigative journalism or whatnot without being able to get stuff done by just ringing up their offices? Please, there’s no money in that.

            Point is, when shareholders get antsy you better duck and run. I’m not in the ducking business, I’m not in the running business. But, sure, if you want to do copy under those circumstances, then all the best of luck to you. But this lady’s not for turning.

          • Just be careful not to extend your stay in reverse psychology land too long lest you go all L. Ron Hubbard and start believing it.

      • I commented in another article that the problems we end up with as a result of poor political decisions (usually representing the interests of powerful and wealthy minorities) are only possible because a large proportion of the voting public are convinced by their dissembling, disingenuous double-speak, and that is a result of a culture of anti-intellectualism; if you do your best to teach generation after generation of children that smart people are just uppity fags, the end result is necessarily a population of education despising ignorance.

        If you want to see a sea change in political direction, if you want laws to start reflecting the interests of people instead of corporations or the personal fortune of specific politicians you need the majority of the voting public to also feel that way, which is nothing short of a cultural shift to respect and admire education and to desire the ongoing acquisition of greater knowledge for themselves. Without that you will always be pushing barrows of dung up a steep hill for people who don’t care a whit for what you’re selling.

        I honestly don’t believe it’s possible to effect a change like this from within the system.

      • The SMH have a great article on why we need “Fair Use” in australia:

        “Search engines such as Google and popular cloud computing services may have been “sued out of existence” if they started in Australia, while consumers who make remixes or mash-ups of copyright songs and videos are also breaching the law.

        These are just some of the glaring issues with the Copyright Act that have been raised today by the Australian Law Reform Commission (ALRC) and copyright experts. The ALRC has released a new issues paper for its inquiry into whether Australia’s copyright laws have kept up with the digital age.”

  4. I don’t get what you’re saying. Maybe you need to spell it out for me.

    Let’s start with Question #1. How does this help Uncle Rupert? Moving on to Question #2: Would Uncle Rupert approve of this? And let’s finish with Question #3: Have you run this by Uncle Rupert or one of his deputies?

    I’m guessing the answer to question #1 is, of course, “It doesn’t”, so I don’t know what kind of bizarro universe you live in to write something so utterly detached from the real world of politics, the law and, most importantly, our benevolent Uncle Rupert.

    Next you’ll probably be all like “We need to do something about climate change or whatnot!”. I’m sorry, but that’s not on Uncle Rupert’s allowable discussion agenda for the Australian people. It says right here, on the Q1 2014 Australia edition of the agenda, we’re doing unions are killing Australia, lefties are violent and detached from the real world and the ABC is biassed.

    I’m sorry, but while Copyright reform is on the table, I’m not sure where your talking about “fair use” and other things comes from. We’re talking with the government about ensuring the continued monetisation of pure content consumption – shoving down your collective gobs whatever content that’s in our hands – without new business models coming in and acting like a bull in a china shop. There’s only one viable long-term way of doing this and FOXTEL is near enough it, if you hadn’t noticed.

    This whole thing with the open Internet and YouTube is just being a minor hiccup until we can get our flock back into the walled gardens and should be getting back to our regular scheduled programming soon.

    “Fair use”, “Shorter copyright”, “three strikes doesn’t work”… I don’t know where you all get your thought bubbles from, but these far-left fringe opinions don’t have any place in the real world.

    PS: Yes, we’re still trying to deal with this PC thing. We thought HDCP would fix it, but that’s still a work in progress. Windows 8 and the declining popularity of PCs has helped, I have to say, with bringing content creation back into the hands of the professionals only, where it should be. Maybe we can legislate something in that area… :)

    • Well said, sir!

      The sooner we get back to the good old days, where people thought what we damn well told them to, the better!

      We’re well on the way, with such splendid successes as the “Stop the Boats!” and “Axe the Tax!” campaigns. We just need to think up catchy three-word slogans now for Joe’s campaign to scrap medicare & the aged pension, and George’s campaign to return complete control of Australian media consumption to our good friends in Hollywood.

      • > The sooner we get back to the good old days, where people thought what we damn well told them to, the better!

        I know, it’s like the writer and some commentators here have never even met a shareholder, the fools. If you don’t have shareholders why are you even opening your mouth, moron! Eh, we need to figure out how to market this thing better, it’s true, or the far-left fringe will continue their commentary like this. “Ooooh, the writer is long dead, what’s your multinational concern doesn’t deserve the copyright 70 years after his death”, whatever his name in that specific example I heard that one time was, I can’t be bothered to know that, completely missing the point about him having sold the rights to us.

        I guess “three strike policy” is somewhat a marketable term, but there could be better out there… we’ve been working with “graduated response”, which sounds much friendlier… probably something mashup of the words in “Digital Australia Content Notification Scheme” or “Content Proliferation Assurance” or “The Content Economy Support Scheme” – we like how the last two sound all warm and fuzzy.

        • Obviously you didn´t get the memo, when discussing Copyright held by Multinational Corporations the public should be told to: ¨Think of the Artists!¨

          • > Obviously you didn´t get the memo, when discussing Copyright held by Multinational Corporations the public should be told to: ¨Think of the Artists!¨

            Artists is a term that’s fallen out of fashion because no one is even remotely under the delusion that this is what our business model is. “Content creators” is the closest we can come, but even that’s falling out of fashion as a term, if it was ever in fashion.

  5. Every time the copyright question comes up, I refer back to a story I found a few years back.

    How copyright stuff England up, or more exactly, how the lack of copyright allowed Germany to catch up.

    Copyright has its place, but its moved away from protecting the creator, to protecting the controlling interest. And thats wrong. Ultimate copyright power should always be in the hands of the creator.

    And just as importantly, its not that easy. Company goes bust, its copyrights are an asset. Company gets bought, its assets go with it. And so forth.

    Make it harder to transfer copyright ownership. Clarify (negatively) how copyright trolls operate. Make common use far more prevalent (eg; the bulk of Samsung v Apple should never have happened) and ultimately stop quibbling over the fine detail.

    Recent example I’ve seen (as in this week) is Candy Crush. Guy made the game TWO YEARS before Candy Crush took off, where they basically copied his game down to the iStore icon, and now Candy Crush has shut him down. They were just too big for him to fight.

    In no way can I see that being what copyright laws are about.

    Copyright should be about encouraging development, not stiffling it. And most creatioins are based on something made previously.

    You dont reinvent the wheel, you modify it, but if the copyright owner of the wheel (Round Thingy Pty Ltd)had any say, there would only ever be 1 version.

    • “Ultimate copyright power should always be in the hands of the creator”

      This strawman needs to be stomped on whenever it comes up.

      I have heard similar with other thieves, those people don’t feel guilty about shoplifting from massive department stores because those big corporations won’t miss a few chocolate bars. Pity about the suppliers to those stores who lose orders when the department stores cut back due to these losses.

      The content creators employ these “big corporations” to market their IP because they can’t or don’t want to market it effectively themselves. These big corporations have the marketing channels set up (or sometimes locked up) where the original content creator can’t, can’t afford to or don’t know how to market their content themselves.

      There is nothing stopping an artist or other content creator keeping hold of their content and all associated rights and marketing it themselves (selling it, renting it or even giving it away).

      But by stealing from the “big bad corporations”, you reduce the value of the product to the corporations – and so they won’t buy it (or won’t buy it at the rate the creator wants). You ARE stealing from the content creator.

      Now this concept is so obvious that I believe all copyright content thieves must KNOW this, so any argument again this reality is disingenuous and self serving rubbish.

      There is one simple way to address copyright.

      If you don’t want to pay for the content or don’t want to pay the price being asked – leave it alone. No-one is obliged to provide you with their IP (and if no-one buys it, they might just drop the price).

      NO-ONE IS OBLIGED TO PROVIDE YOU WITH THEIR IP – I can’t wait until this age of entitlement and bratty consumerism passes. But will it?

      • Hey Guest, you’ll probably have to post the opposite next week. If you want to keep spruiking for your beloved Liberals that is. They go back and forwards on this one on a regular basis depending on political expediency, so be ready to do a back flip.

      • The content creators employ these “big corporations”
        Hahahahahahaha. I had to stop reading there.

      • Sorry Guest, but your response is one of the biggest crocks of shit I’ve seen in a long time. You’re basically accusing me of being a thief here, which I strongly object to. My DVD collection is insured for around $30,000, which is what it would cost to replace. I am not someone who downloads movies because I want them for free. I buy them.

        I have no problems with copyright, or to be more specific, what it was intended to do. But the laws we have in place are so far from what copyright is meant to be for that its become cancerous to the industry, and society in general. Which I think needs to be fixed. If you bothered to read the link I posted, you might see that this has happened before.

        I look at situations like what Foxtel has done with Game of Thrones, and think that the system is wrong. And I voice that. But narrow minded fools like you cant grasp that there are genuine concerns, and simply label those protesting as pirates.

        Pull your head in, its not about getting a free ride, its about getting a fair go. What makes it worse is that there are genuine products like Hulu out there that are already solutions. They just need to be legally available.

        After that, then the freeloaders are a different problem.

  6. What we need is everything the article mentions + cutting out the middlemen. Let me pay the creator directly: let me do that, and I get a better price, and she gets a better cut.

  7. Patents aiui last between 14 and 20 years, they are for actually creating new technologies, widgets etc – I dont see why the hell Copyrights for making some “content” should be for 70 years, this is frankly insane!!!

    Lets use today’s Delimiter content as an example, what use would it be to anyone in 65 years other than those interested in tech journalism history? I would suggest none at all … heck even in 20 years time it’s usefulness would be minimal and thats not being mean, just realistic.

    These Global Mega Corps get the rights to some entertainment content and then just want to sit there and rake in money from it for all eternity making the Copyright system useless and worthless in the eyes of the public as a result!

    • Don’t forget that it’s “life + 70 years”, IIRC. USA has it worse with “life + 105 years”.

    • I was going to say copyright originally was the same length as patent protection, but if memory serves patent protection existed for some time before copyright was devised to offer similar protections for creative works. There was heavy opposition from businesses back then, too – incumbent players made a lot from copying and churning out the work of others. They soon figured out how to use the system to their own advantage, though (and there would have been powerful interests at work ensuring the laws benefitted them from the outset).

    • “Lets use today’s Delimiter content as an example, what use would it be to anyone in 65 years other than those interested in tech journalism history? I would suggest none at all … heck even in 20 years time it’s usefulness would be minimal and thats not being mean, just realistic.”

      The thing is though, should, in [copyright term]+x years, someone that is not Nicolas Suzor, the author of this article, be allowed to sell it for a profit, while the content creator get’s nothing (assume that we’re not talking about a life+x copyright term here, but something like 20 years)?

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