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COMMUNICATIONS LAW Communications & Media Law Association Incorporated Volume 35, No 2

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COMMUNICATIONS LAW Communications & Media Law Association Incorporated Volume 35, No 2 SPECIAL COPYRIGHT EDITION CAMLA BULLETINCOMMUNICATIONS LAW Communications & Media Law Association Incorporated Volume 35, No 2. June 2016 Copyright Developments CONTENTS in the Online Space Copyright Developments in the Online Space INTRODUCTION to play a significant role in public policy and in commerce – particu- Eli Fisher, lawyer and co-editor Is Sports Clip Sharing Legal in of the Communications Law Bul- larly as content in Australia shifts to Australia? Applying the letin, moderates a discussion be- new digital platforms. UK Fanatix Decision tween two of the most prominent Some commentators have referred voices in the Australian debate to debates on copyright policy be- about copyright policy in the on- tween rights holders and consum- Copyright and Social Media line space. Laurie Patton CEO of ers as “the copyright wars”, and Internet Australia, and Jonathan while discourse is somewhat pola- Summary note on the Productivity Carter President of the Copyright rised at times, it can only be valu- Commission’s Intellectual Property Society of Australia and General able to consider reasonable argu- Arrangements Draft Report Counsel of the Australian song- ments from both sides. writers and music publishers’ col- lective, APRA AMCOS. Laurie Patton is 500 Versions of Software and the CEO of Internet Subsistence and Infringement They discuss recent developments Australia, the peak of Copyright – The Full Court’s in connection with site-blocking, body representing extended safe harbour provisions, Internet users and a Decision in JR Consulting v the development of an industry chapter of the influ- Cummings code governing how ISPs deal ential global Inter- with copyright infringement, the net Society. An In- After DBC: Can Piracy Be Curbed Dallas Buyers Club litigation, the ternet evangelist, he believes in the Outside of the Court? Productivity Commission’s Draft need to build our economic and so- Report and geo-blocking. cial future around a connected world where everyone has access to the In- Profile:Nicholas Cole Copyright policy has taken on enor- ternet and has the skills required to Legal Practitioner Director of mous importance in recent years. use it. Laurie’s career spans politics, Cole Media & Entertainment The ALRC conducted in 2012-14 journalism, senior management and Law and Producer at Talk Films the most comprehensive review non-executive directorships in me- of the Copyright Act 1968 since it dia, IT and the events industry, much came into effect almost a half cen- of which is detailed in his Wikipedia tury ago, and there have been nu- entry: merous other inquiries since, includ- http://bit.ly/1nk9eqU ing the inquiries into IT pricing and Jonathan Carter Editors online copyright infringement. The is President of the Victoria Wark & Productivity Commission’s review of Copyright Society Eli Fisher Australia’s IP arrangements is ongo- of Australia and ing, and the Government continues General Counsel Editorial Assistant to consider implementing a Fair of the Australian Imogen Yates Use regime in Australia. And with songwriters and innovation being promoted as the music publish- Printing & Distribution centrepiece of Australia’s economy ers’ collective, APRA AMCOS. As a BEE Printmail going forward, copyright continues music lover, he believes that songs Communications Law Bulletin, Vol 35.2 (June 2016) Page 1 play an integral role in shaping Australia’s ing in recent times has come from the film and televi- identity and culture. He is an advocate for an sion industry and, I’d argue, for reasons of self-interest economic and social framework that support that are not advantageous to Australian producers music creators and allow music to have value much less consumers. That said, recent US reports are in the online marketplace. Jonathan’s career showing that live streaming of music (paid for) is now has been dedicated to advancing the interests taking off big time. This means that the Internet will be a of music creators, firstly as a solicitor in private critical platform for delivering music rather than current practice, then as a business affairs executive at physical forms like CDs (although I note an interesting major record labels, and now in his current role revival in vinyl is also occurring!) at APRA AMCOS. As a former television producer I am fully supportive of The Communications Law Bulletin is grateful copyright protections so long as they achieve the aims for their contributions. that Jonathan highlights. We also need to educate people about the purpose of copyright so that they The Federal Government is fo- understand the long-term downsides from copyright If we want cused on setting up the national abuse. Unfortunately, largely at the behest of overseas economy so that it can thrive in (Hollywood) rights holders and their local representa- Australia’s the digital age. Where do you tives, our government seems determined to introduce digital see copyright fitting into that, regulations and processes that we know from interna- and what if anything needs to tional experience just don’t work. A recent research economy change so that the industries report from Carnegie Mellon University found that a to continue you each represent may take massive UK site-blocking exercise only saw a 22 per- better advantage of what the cent reduction in unlawful downloading and a measly to flourish, future has in store for us? 10 percent increase in downloading from legitimate we need JC: The Australian music industry sites. Hardly a great outcome, especially given the to ensure is fully supportive of the Govern- costs involved for the ISPs required to implement the ment’s stated goal of creating a blocking (which will inevitably be passed on to con- we have a modern, dynamic, 21st century sumers in increased Internet access fees). regulatory economy for Australia. As physi- Curiously, it has since emerged that Hollywood has framework cal sales of music become obso- provided Carnegie Mellon with millions of dollars to lete, a strong and vibrant digital undertake their copyright research! Unfortunately, site- which market is crucial to the sustain- blocking does create a risk of damaging the efficient op- discourages ability of our industry. Innovation erations of the Internet. A while back, ASIC inadvertently is obviously a buzzword right now put 250,000+ sites offline for several days in an effort to free-riders and there is a lot of rhetoric in close down a few sites they alleged were committing and supports the media about how copyright consumer fraud. It is also worth noting that these “anti- hampers innovation. I genuinely piracy” moves are basically designed to assist overseas legitimate don’t see it that way. Innovation content producers, and not the local creative industry. operators comes in lots of different shapes For example, how many Australian feature films do you and sizes - the term should not think are being downloaded via overseas “pirate” sites? who can be limited to notions of techni- Not many. It might be different for music as Jonathon then cal or scientific creativity. Cultural suggests. If that’s the case let’s look for ways that help creativity (such as the art of song the Australian music industry as opposed to propping compete writing) is of course a form of in- up the price-gouging activities of the overseas rights on a fair novation, and it is just as impor- holders. Site-blocking is designed to help Hollywood, tant to set a regulatory framework not Australian film and television producers. playing field. that encourages the creation of content as well as the creation of JC: Laurie’s correct that that music streaming sites are the technical means for distribut- beginning to take off, not just in the US but also here ing that content. Either way, copyright is a key in Australia. The Internet is already a critical platform framework by which that innovation (techni- for delivering music, but it’s still early days for the sub- cal or cultural) is rewarded. In recent years the scription streaming services - by our calculations the music industry has embraced innovation in the number of Australian subscribers to legitimate music online market, and the music industry’s contri- streaming sites will need to increase four-fold before bution to the digital economy is significant – 62 the Australian music industry returns to the revenue percent of revenues from recorded music sales levels it generated before unauthorised overseas in 2015 were as a result of digital exploitation. If websites decimated the recorded music market. How- we want Australia’s digital economy to continue ever, I disagree with Laurie on his two other points. to flourish, we need to ensure we have a regu- latory framework which discourages free-riders First, I think legislative intervention does work, admit- and supports legitimate operators who can then tedly it’s not a silver bullet but it’s an important part of compete on a fair playing field. the overall framework for a legitimate market. The in- ternational data we’ve seen from the UK supports this LP: Firstly, I think we need to differentiate be- proposition. There’s the Carnegie Mellon study, which tween the music industry and film and televi- Laurie rightly points out was funded by rights holders. sion. I’m not sure that they are exactly the same Of course, I’m sure tech companies would never fund in how they are being challenged by the advent academic studies to support their lobbying activities! of the Internet. Most of the more overt lobby- But there’s also a lot of music specific evidence we’ve Page 2 Communications Law Bulletin, Vol 35.2 (June 2016) seen that supports our position, more on that later. over 20 legitimate online services in Australia Secondly, in the evidence that we’ve gathered for for a number years now.
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