I take a look at Senator George Brandis' address at the Opening of the Australian Digital Alliance Fair Use for the Future
Senator George Brandis, the Australian Attorney General, is one of the key figures in drafting up more modern copyright laws. He gave a speech in mid-February looking at copyright reform. In it, he advocates for having a “graduated response scheme” and against having fair use laws in Australia. A “graduated response scheme” is also known as a “three strikes” scheme, whereby copyright holders can accuse a person of violating their copyright. If a person gets accused three times, their internet connection is terminated.
One of the most astonishing things about the speech in my view is how far the principles Brandis outlines lie from the practical solutions he advocates. For instance, he talks about how copyright grants a monopoly:
... Lord Macaulay’s speech is justly recalled for its anticipation of the fundamental principles that underpin the modern system of copyright protection
His central insight is to remind us that copyright is a monopoly – a necessary monopoly – but a monopoly nonetheless.
He then goes on to talk about the value of copyright. As a pirate (although the opinion is purely my own) people often assume that we do not value creative works. In fact, it is the opposite: pirates often value the work far more highly than Brandis is doing here. Indeed, we think of creative works as priceless cultural artefacts, caged by copyright. This is where the idea of “Information wants to be free” comes from. If you are an artist and have used copyright, you have trapped your work to perform for your benefit.
Brandis then goes on to re-iterate that the key idea is balance:
Of course, as Lord Macaulay noted all those years ago, copyright is a monopoly and, as we all know, monopolies are presumptively a bad thing.
The challenge for us today is how to balance the benefits for creators against a range of other public interests including the interests of users, educators and other important public goods.
However, in spite of issuing the reminder himself, he seems to forget this important point almost immediately:
I remain to be persuaded that [the ‘fair use’ extension] is the best direction for Australian law, but nevertheless I will bring an open and inquiring mind to the debate.
It’s unclear why Brandis does not like fair use. I could assume that it causes some problematic legislation due to esoteric reasoning that only lawyers care about. However, the Australian Law Reform Commission seemed to advocate for fair use, and I can see no problems historically with fair use protections. Indeed, it is an important and necessary part of ensuring that copyright monopolies are restricted — they create “balance” between the granting of a powerful monopoly and ensuring that this does not result in creators being able to take advantage of their position. This and other exceptions are a necessary part of copyright because they form the “responsibility” half of the liberty they are being granted by having a monopoly.
Unfortunately, he goes further:
The illegal downloading of Australian films online is a form of theft. I say Australia films, but of course the illegal downloading of any protected content is a form of theft.
This is something that bears repeating: technically Brandis is not correct. This is a point of moral outrage, that we should be as morally outraged at violating a copyright monopoly as we are with theft. However, pirates do not agree, and there’s plenty of evidence that shows how creative works do not follow the laws of economics, as much as we may want them to. To quote Lord Macaulay as quoted by George Brandis:
the least objectionable way of remunerating them is by means of copyright
Macaulay is not saying that copyright is a good solution, rather that it is the least bad solution. To take an idea that is delicate and requires balance, and shoehorning a naive argument onto it is worrying, especially when it is used to stir up feelings and not rational discourse.
Perhaps stirred by these feelings, Brandis continues:
However, the High Court’s decision of 2012 in the iiNet case changed the position. The Government will be considering possible mechanisms to provide a ‘legal incentive’ for an internet service provider to cooperate with copyright owners in preventing infringement on their systems and networks.
This may include looking carefully at the merits of a scheme whereby ISPs are required to issue graduated warnings to consumers who are using websites to facilitate piracy.
He seems to have completely forgotten Macaulay’s principles that he outlined at the beginning of his own speech. What Brandis is suggesting, in case the duplicitous wording makes it unclear, is that ISPs violate your privacy by forwarding information from third parties to you in the least worst case, or in the worst case actually hand over your details to third parties. He identifies these third parties as “copyright owners” but that’s assuming someone isn’t a copyright owner. Anything we write, any pictures we take, any creative work we make or share, is all under copyright in Australia. Presumably Brandis is talking about certain privileged “copyright owners”, as if they can somehow be trusted with the private information of every Australian on the internet.
It is where he mentions graduated response that it becomes clear that he has lost all sense of the idea of “balance”. Let’s completely ignore the fact that graduated response schemes never work, wherever they’ve been tried. A graduated response scheme generally means that a “copyright owner” is allowed to accuse someone of copyright violation thrice, and that would mean that person is then banned from using the internet — something the UN now considers a human right.
These types of infringements are progressive in that they treat copyright violation like speeding — there is a perceived balance between understanding wilful violation, the severity of the offence, and the severity of the penalty. However, this isn’t like getting a speeding ticket. The police do not issue the infringements. Instead, they are issued by private institutions. This means there is a far less even handed idea of the events that took place. The police are at least neutral, but for private institutions there are economic incentives to handing out infringements.
The courts are also rarely involved in arbitration. When issued a speeding ticket, I can go to a real judge to argue my case. In graduated response schemes, there is often a separate method of arbitration that is heavily skewed towards the copyright owner. The offender is often assumed guilty, or some other important part of the judicial process is missing.
Finally, the penalty — losing the internet — is also far too severe. Driving is not considered a human right, whereas the internet is. Losing internet access shouldn’t be compared to losing your license, but instead to losing your right to freedom of assembly.
Even considering graduated response shows that Brandis has completely forgotten the core principles he outlined in his own speech: That copyright is a monopoly, and monopolies are a bad thing, and that they are the least bad solution to a complex problem, and need to be handled deftly.