[A2k] Productivity Commission final report: 'Australia’s copyright arrangements are skewed too far in favour of copyright owners to the detriment of consumers and intermediate users'

Stephen Wyber Stephen.Wyber at ifla.org
Fri Dec 23 23:33:23 PST 2016

Dear all,

A Christmas present of sorts for those in favour of a more flexible copyright system – the Australian Productivity Commission has released its report to the government<http://www.pc.gov.au/inquiries/completed/intellectual-property/report>, looking at the whole IP system from the perspective of how to maximise welfare. What’s significant is that this is a well-respected government-linked body which looks at total welfare – i.e. consumer and producer, short and long-term.

Its findings on copyright are much in line with what was in the draft report earlier in the year, but the fact that many of the views have stayed the same, despite the protests of rightholder organisations, is noteworthy. There’s also material on patents, trademarks and other rights.

Some key findings:

·       Criticism of current term lengths – most works go out of commerce within five years, and after 25 years cannot expect to earn anything more. It is only in very exceptional cases that works continue to be sold. Indeed, it is also often when works go into the public domain that they re-enter commerce. Term length also increases the likelihood of works becoming orphaned, as is the case for 20% of the works in Australia’s Film and Sound Archive.

·       Current exceptions and limitations are ‘too narrow and prescriptive’. A fair use principle would create value in net terms. The report implicitly criticises rightholder-funded studies which have only focused on the impact for one group of actors, as well as dismissing the ‘defence’ that rightholders do not go after individuals infringing copyright for small reasons – the real issue is the number of potential opportunities stifled by the current rules.

·       It explicitly criticises talk of ‘Canadian Flu’ (the idea that introducing fair dealing has led to the demise of the Canadian educational publishing industry), where rightholder arguments are bluntly described as ‘ill-founded and premised on flawed (and self-interested) assumptions’.

·       The report is more dismissive still as concerns publisher resistance to the removal of parallel importation rules – the Commission suggests that these should go, alongside geoblocking, in order to promote legal access to content.

·       It offers figures for the economic gains from orphan works reform (AUD10-20M a year), and in public spending on licences by government and educational institutions for works which are already available online (AUD18M a year), plus highlights broader gains from access.

·       In terms of recommendations:

o   Introduce a fair use principle, along the lines of the US and Israeli models

o   Repealing the parallel import regulations could combat the fact that books are 20% more expensive in Australia than in the UK

o   It also calls for an investigation into the governance of CMOs in Australia.

o   Prevent contract override and use of TPMs to stop users benefitting from exceptions and limitations

o   Make geoblocking unenforceable

o   Limit liability for the use of orphan works

o   Take a tougher line on the interface between IP and competition law (in order to promote the latter)

o   Implement a green open access mandate for all publicly funded research, and impose the same on international organisations funded by the Australian government (OECD included)

o   Call for a review of the TRIPS agreement

o   Promote a better balance in terms of copyright scope and term in international fora.



Stephen Wyber
Policy and Research Officer, IFLA
IFLA Headquarters
P.O. Box 95312
2509 CH The Hague

Stephen.wyber at ifla.org<mailto:Stephen.wyber at ifla.org>
Tel. 00 31 (0)70 314 0756
Fax. 0031 (0)70 383 4827

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