Ed Husic (Chifley, Australian Labor Party, Shadow Minister for the Digital Economy) Share this | Hansard source

I was going to say it is a pleasure speaking on the Copyright Amendment (Service Providers) Bill 2017, but it really isn't, because what we're talking about here is doing the easy part of reform in an area that really demands a lot more. The Minister for Communications has presented something that he knows—after 10 years of debate about what we do on safe harbours within copyright—has failed. In fact, we should probably name this bill not the Copyright Amendment (Service Providers) Bill but the 'copyright amendment (Fifield night sweats) bill', because the communications minister is so fearful of undertaking reform in this space and so unable to get agreement on the need for reform, which he knows needs to happen in this area, that all he'll do is promise another review, make a commitment for something to happen down the track and just hope that, when that point down the track arrives at the present day, he's nowhere near it. He's hoping that, by kicking the can for reform down the road, we can avoid all this.

This legislation does the right stuff. It promotes, obviously, the extension of safe harbours to educational institutions, libraries, archives, key cultural institutions and those organisations assisting persons with a disability. So it's all good stuff. Most of the entities I've just mentioned take a very conservative approach to ensure that there are copyright protections and that the right thing is done for rights holders. But it doesn't really go beyond that.

What does that mean? What it means is that there are a whole stack of Australian firms in this area that are confronted by the spectre of costly litigation and have no comfort extended to them through this bill. It was promised the last time this thing was debated in this place that we'd have a review, and I spoke strongly in favour of local firms that have that legal threat hanging over them. We had the promise of another review, yet again, after all the reviews—I think there have been nearly a dozen different ones—that have occurred over 12 years. And this is the best we got.

The whole issue of current safe harbours was introduced in the Australian context in the Australia-US Free Trade Agreement in 2005. As the Minister for Urban Infrastructure and Cities—who is the Minister representing the Minister for Communications in this place—rightly outlined, the scheme in the Australia-US Free Trade Agreement was intended to provide an alternative to court proceedings for copyright owners when infringing material is hosted, cached or linked by a service provider or where a provider's network services are used to infringe copyright. Even in that space of time, there has been massive change on the ground. Again, this was about providing an alternative to court proceedings for copyright owners, and I'll come back to this point. This was at a time when we did not see the emergence of cloud based platforms that are transforming the way we work right now—and not just what in we're talking about here but in a whole range of areas. This scheme is limited to service providers in a telco sense, but it does absolutely nothing in dealing with firms that are leveraging off cloud, are providing new services and, importantly, are providing incomes for a range of people. It brings them together and creates an income for them all and they are free from some concern that they will have infringed copyright in some way.

The rights holders keep screaming. The more extreme elements of them will always scream—although I do know there are people in the rights holder space who have recognised that times have moved on and that they need to have a much more nuanced and up-to-date view about how to manage this. This is the era of digital platforms. What used to be done in an analogue way is being replaced by digital platforms on a cloud based platform itself. This is changing the game, and we need to have some sort of protection.

There are some great firms here that are doing some important work in generating new income, be it for artists, manufacturers, printers or the like. They have no sense of comfort as a result of what the government has put forward today that they'll be looked after and that they will avoid the spectre of legal action against them. The one that I think of most, particularly on this day, is Redbubble. Redbubble's CEO, Martin Hosking, announced his retirement today after being with the firm since 2006. He has done some terrific work and should be celebrated for his contribution to the Australian economy. Redbubble is a platform that allows artists an alternative mechanism for income generation where they can team up with others. You can get something printed on a range of different material or media, so you're generating income not just for the artist but also others. It could be a printer in Perth, a textiles manufacturer in Melbourne and an artist in Adelaide all working and leveraging off a platform to create an income for them.

Redbubble was recently taken to court by Sony because it was claimed that Redbubble had, through their platform and through someone manipulating some artwork, infringed Sony's copyright of Pokemon. The judge that was ruling in the case declared in favour of Sony, of Pokemon. What was the cost? The cost of nominal damages to Redbubble was one dollar. The reason was that the judge found that Redbubble had been responsible for determining the content originated by artists through its processes, protocols and arrangements with artists. In finding indirect infringement, the judge found Redbubble had complete control over how its system operated and found that Redbubble 'had in place systems to monitor the steps taken by the users of the website' and 'could immediately have taken down or removed infringing material'. So Redbubble had been taking steps. The risk mitigation provided by Redbubble had been taken into consideration by the judge, which then provided for that nominal judgement to be made.

Redbubble made a submission to the bill as it was considered by the Senate. In January this year, they said:

Safe harbours recognise the realities for Australian platforms that host user generated content and provide a fair and effective process for managing infringement on user generated content platforms … Safe harbour protection is critical for the fostering of innovation in the Australian technology sector … safe harbour would promote collaboration between all parties … in the fight against infringement; and … The limited safe harbour extension in the Bill applying only to the education sector and NFP sector will be impracticable to administer.

They made all those points. It's worth noting that over 90 per cent of Redbubble's revenue—this Australian firm—is from customers outside Australia. An Australian firm provides a digital platform and is generating income where 90 per cent of the revenue is from outside Australia. Its website attracts over 20 million visitors per month. There are 10 million artworks and designs displayed on the website from over 600,000 artists. Artists have earned over $100 million from the site, with over 10 per cent of this going to Australian artists. The income they're earning is growing at around 50 per cent a year, a phenomenal growth rate. They're saying, 'If we have mechanisms in place to make sure we deal with copyright infringement quickly, and courts have looked at our process and, after considering what are argued infringements, issued nominal judgements of just a dollar because Redbubble has set itself up in that way, why do we still have the legal spectre hanging over us, the sword hanging over us?' It is because this bill doesn't provide protection for commercial activities that provide a platform for artists to get new forms of income along with a range of other businesses in this country.

Some of the extreme rights-holders argue, 'If Redbubble can't survive here, they can shove off and go overseas.' Is the 'jobs and growth' government going to allow this to happen? Redbubble and similar great Australian firms like Envato and 99designs—whose CEO, Patrick Llewelyn, shared a push-up competition with me in Oakland, California, but that's a story for another time—all could quite easily move offshore if we don't have a legal framework that allows businesses to operate here. People will say, 'They managed one legal challenge, they're fine; they'll just have to stump up to a court.' No, they should not have to face the prospect of funding legal challenges put to them by those who just want to run their businesses into the ground. There should be a legal framework here to protect them.

For those extreme rights-holders who say basically that, if Redbubble have to shut up shop in Australia, they can rack off overseas—this is crazy. As I said before, in an era of digital platforms using the cloud to provide these services Redbubble would move overseas and still provide the same services that rights-holders get upset with, but it would mean the platform's whole stack of technology based jobs here gets snuffed out straightaway. If Redbubble moves, we lose an onshore economic opportunity all because of the extreme purity of the rights-holders that say, 'We will maintain existing arrangements; no changes, no ifs or buts'—which is just nuts. I cannot believe we're at that stage in this country.

Some of those rights-holders say that I'm anti those copyright protections and want to stop artists, authors or whoever from earning income. That's rubbish. We need to find a sensible middle ground that doesn't just protect artists' income but gives them an opportunity to grow, so that they're not just reliant on grant schemes administered by government to survive but can find new avenues for income growth. Out of $100 million, 10 per cent is generated by Australian artists, with a growth rate of 50 per cent per year. That's huge. We have to not only protect Australian artists and find new incomes for them but also, if we are serious about promoting Australian innovation, provide an area with room to move for these firms to grow.

That absolutely should be the case. No-one who says they are pro-innovation can be timid or quiet in this debate. If you're arguing that you're pro the smarts of Australian industry, that those jobs should be created here more and more and that you want digitally-skilled people to apply their skills to help firms grow, and you are timid, meek or quiet in this argument, you are anti innovation. You are anti the notion of diversifying our economic base through the emergence of new, smarter firms, because you didn't have the guts to stand up against the fevered exclamations of some extreme rights-holders in this debate and you couldn't find the middle ground.

We've got to be pro artists and pro smarts in this debate. We've got to be pro smart firms that are providing opportunities for others to create an income. But, because the communications minister did not have the wit, the wherewithal or the courage in this debate to come up with an alternative way to extend safe harbour protections for great Australian firms, that's what we're missing out on. It's unacceptable, especially from those opposite, who harp on about jobs and growth like they have no other thought in their mind or no other argument that they can express. This should be completely different.

In the time I have left, I would like to say thank you to Martin Hosking for the fact that he has followed through on his vision with his firm. He has capable people taking over from him and exceptionally talented people in that firm in Melbourne that I visited. Martin Hosking is exactly the type of person we should be patting on the back for opening up opportunities for young Australians and creative Australians here in this country. I hope that at some point when he looks back on the successes that he has been able to achieve in this space he'll be able to savour a legislative success that will enable other firms like his to grow and to thrive in this country instead of offshore.

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