Tim Watts (Gellibrand, Australian Labor Party) Share this | Hansard source

I rise tonight to note the Australian Law Reform Commission's final report on its inquiry into the Copyright Act, commissioned by the previous Labor government, entitled Copyright and the digital economy. Considering 870 submissions collected over 18 months and providing over 400 pages of analysis, the report is a definitive articulation of the challenges that face Australian copyright law in the digital era. Among the recommendations of this report was a clear endorsement of the adoption of a broad fair use exception to copyright law in Australia, rather than the current narrow and prescriptive fair dealing exemptions in the act. For copyright reform advocates such as myself, the report is a landmark moment in the journey towards a copyright law that will help, not hinder, Australia's digital economy.

The introduction of fair-use principles into our copyright legislation would both protect the legitimate interests of content creators and allow those wanting to transform copyrighted material the space to develop and innovate within prescribed legal boundaries. The significance of this recommendation is highlighted by Google's submission to the ALRC where it asserted that it could not have started its business in Australia under the current copyright framework. Nor, might I add, could have Apple or Facebook.

I want companies like this to start in Australia. A copyright regime that permits innovation is required to attract the companies and communities that will make Australia a leader in the digital century ahead. Many online communities often transform other's copyrighted work by adding new uses for data or by creating completely new artistic works through what US academic Lawrence Lessig calls 'remix culture'. They may create content like the political satire videos of Australian, Hugh Atkin, who use sample clips of Australian and US political culture to entertain millions of fans. Such an active relationship between content creators and their audiences should be celebrated, not punished, so long as these new uses are not unfair, considering a range of explicit considerations.

But there are some who look upon this bright digital future and see only a challenge to their expansive current rights, and they have ear of our current Attorney-General. In a speech responding to the ALRC report at the Australian Digital Alliance conference, the Attorney-General expressed doubt about the benefits of fair-use provisions. He instead focused his speech and his reforming intention on a three strikes regime for alleged copyright infringers. In response to this speech, the online journalist, Stilgherrian, expressed dismay, but not surprise, because the Attorney-General:

… is a conservative minister in a conservative government.

But I think the Attorney-General would reject this title. In fact, he devoted more than 6½ thousand words to disowning the title of 'conservative' in his 2009 Alfred Deakin Lecture entitled 'We believe: the Liberal party and the liberal cause'.

In this opus, the Attorney-General argued for a Liberal Party that represents small 'l' liberal ideas and cites—I know that Madam Speaker will approve—from Hayek's seminal essay, 'Why I am not a Conservative', quoting:

There has never been a time when liberal ideals were fully realized and when liberalism did not look forward to further improvement of institutions …

The Attorney-General seems not to realise that Hayek, a genuine liberal, was very much interested in the further improvement of the institutions of intellectual property. In his essay, 'Individualism in the economic order', Hayek reflected on the law underpinning inventions, copyright, trade marks and the like, arguing:

It seems to me beyond doubt that in these fields a slavish application of the concept of property as it has been developed for material things has done a great deal to foster the growth of monopoly and that here drastic reforms may be required if competition is to be made to work.

Hayek later noted in The Fatal Conceit:

… it is not obvious that such forced scarcity is the most effective way to stimulate the human creative process. I doubt whether there exists a single great work of literature which we would not possess had the author been unable to obtain an exclusive copyright for it; …

It seems that Senator Brandis' commitment to liberalism dominates his speeches but does not make it into his legislative agenda.

This is a blind spot shared by others on the right. Our new freedom commissioner, Tim Wilson, wrote a lengthy defence of an absolutist approach to IP in his days as the head of the IP division at the Institute of Public Affairs. In his IPA background in intellectual property matters, Wilson seems blissfully unaware of the liberal critique of intellectual property, advocating instead the Peruvian economist Hernando de Soto's work on property rights. He explicitly ignored Hayek's warning and slavishly applied the concept of property as it has been developed for material things to intellectual property. Wilson's position may have been the result of his sadly inaccurate belief that a fee exemption already existed under Australian copyright law, observable in his statement:

Copyright protection is exempted under ‘fair use’ provisions, which allow persons to reproduce the work within a limited framework.

We see then that, in the Liberal Party, an individual's freedoms stand for little in the face of vested interests seeking to expand a private statutory monopoly.

The Attorney-General concluded his Deakin essay by noting:

It is still all too easy to forget what it is that makes us liberals, … the Liberal Party has sometimes forgotten it too.

When it comes to intellectual property, the Liberal Party has forgotten the principles on which it makes a stand.

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