Will Australian Government Use Cost-Benefit Analysis To Kill Off Fair Use Proposal Once And For All?

from the set-up-to-fail dept

Discussions about copyright reform in Australia are now entering their fourth year, and the longer they go on, the worse the proposals become. That’s in part because there has been a change of government in the interim, and the present Attorney-General, George Brandis, has made it clear he’s firmly on the side of copyright companies, and indifferent to the Australian public’s concerns or needs in a digital world.

One big problem for him and his maximalist friends is that a key recommendation of the Australian Law Reform Commission (ALRC), in its extremely detailed and rigorous analysis of the state of copyright in Australia, was to introduce a new fair use provision. This is absolute anathema for the copyright companies, which seem to hold that the law should only ever be changed in their favor, imposing a kind of copyright ratchet that prevents the public from gaining any substantial new rights. Simply dropping the fair use idea would be too obvious, so a way needs to be found to kill it off without causing an outcry against the Australian government’s blatant favoritism. As ZDNet reports, maybe Brandis has found what he is looking for:

The Australian Attorney-General’s Department has commissioned a cost-benefit analysis into the recommendation by the Australian Law Reform Commission (ALRC) to implement a fair use provision in the amendments that the government is proposing to make to the Copyright Act in order to adapt to the digital world.

The economic analysis, announced on Wednesday, will examine the cost effects that fair use would impose on copyright holders along with copyright user groups.

Although that sounds perfectly reasonable, the ZDNet story adds some important historical context from a year ago that Brandis probably hoped nobody would remember:

Brandis again affirmed his partiality toward content owners, claiming that the recommendation to implement a fair use defence was “a controversial proposal” and would weaken the rights of copyright owners.

“In considering the recommendations, we will be particularly concerned to ensure and we will approach the consideration of the report with the view that no prejudice be caused to the interests of rights holders and creators,” he said in February 2014.

Since by its very nature fair use allows the public to use copyright material in various ways without needing to pay a licensing fee, this means there will inevitably be some “prejudice” to the copyright companies, although minor in comparison to the major gains for eveyone else. However impartial and balanced the cost-benefit analysis will be, it is bound to expose the fact that if the public gains any new freedoms there will be a theoretical loss for the copyright holders.

And that, presumably, will allow Brandis to refuse to implement the ALRC recommendation on the grounds that he must defend the interests of creators, even though they would be among the greatest benefactors of a fair use provision, which would allow them to use existing works in new and exciting ways. But who cares about art when corporate profits are at stake?

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Comments on “Will Australian Government Use Cost-Benefit Analysis To Kill Off Fair Use Proposal Once And For All?”

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31 Comments
Anonymoussays:

“Will Australian Government Use Cost-Benefit Analysis To Kill Off Fair Use Proposal Once And For All?”

Why yes – of course! Here is how it will go.

1) The cost: loss of the benefit of additional profits is horrible and inhumane for the content “ownerz”.

2) The benefit: there is absolutely no benefit for the content “ownerz”.

John Dsays:

Brandis is currently pushing for legislation permitting the government to unilaterally revoke the citizenship of Australians with no judicial involvement. This is the same guy that recently got legislation through that makes ASIO (Australian secret police) immune to prosecution. If ever there was an Attorney General with utter contempt for rule of law it is this goddamned creature.

Thankfully, most of the corrupt and/or crazy nonsense being put forward by this government is being blocked in the senate.

Even better, Australia is having a federal election in less than a year and polls are consistently showing that this shockingly awful government will being going. I am looking forward to the prosecutions after.

Anonymoussays:

Re: Re: Senator Brandis and the Rule of Law

If ever there was an Attorney General with utter contempt for rule of law it is this goddamned creature.

I have to strongly correct you here. I have a document signed by Senator Brandis stating categorically that he believes in “The Rule of Law”.

And he does. All his actions re-enforce his acceptance and belief in “The Rule of Law”.

Where it goes off the rails for us (the citizens of Australia) is that he makes “The Rule of Law”. “The Rule of Law” is whatever he wants it to be – he has the power to do this and he fully acts on this power to make any and all changes that he wants or requires. Irrespective of what may be good or bad for Australia and its citizenry.

Thankfully, most of the corrupt and/or crazy nonsense being put forward by this government is being blocked in the senate.

Unfortunately, you are completely wrong about this. If you actually have a look at some of the more atrocious legislation that has been enacted in Australia in the last few months, it has had support from both government and opposition in both houses.

Even better, Australia is having a federal election in less than a year and polls are consistently showing that this shockingly awful government will being going. I am looking forward to the prosecutions after./blockquote>But what will it be replaced with? There is very little difference between the disasters that each party (Liberals, Nationals, Labour, Greens, etc.)proclaims as their policy based.

There will be no prosecutions – no government can afford it because it will come back and bite them as well.

Basically, there are a few Members of Parliament or the Senate who are reasonable men or women (that includes all party affiliated and independents). If you want to make a difference, you have to bug the living daylights out of your local member and associated senators. If enough people get off their backsides (stop watching neighbours or x factor or football) and start talking to and questioning their local representatives then we may, just may, see a change. If they don’t then there will be only a change of party (maybe) but no functional change of government per se.

Anonymoussays:

Re: Re: Senator Brandis and the Rule of Law

If ever there was an Attorney General with utter contempt for rule of law it is this goddamned creature.

I have to strongly correct you here. I have a document signed by Senator Brandis stating categorically that he believes in “The Rule of Law”.

And he does. All his actions re-enforce his acceptance and belief in “The Rule of Law”.

Where it goes off the rails for us (the citizens of Australia) is that he makes “The Rule of Law”. “The Rule of Law” is whatever he wants it to be – he has the power to do this and he fully acts on this power to make any and all changes that he wants or requires. Irrespective of what may be good or bad for Australia and its citizenry.

Thankfully, most of the corrupt and/or crazy nonsense being put forward by this government is being blocked in the senate.

Unfortunately, you are completely wrong about this. If you actually have a look at some of the more atrocious legislation that has been enacted in Australia in the last few months, it has had support from both government and opposition in both houses.

Even better, Australia is having a federal election in less than a year and polls are consistently showing that this shockingly awful government will being going. I am looking forward to the prosecutions after.

But what will it be replaced with? There is very little difference between the disasters that each party (Liberals, Nationals, Labour, Greens, etc.)proclaims as their policy based.

There will be no prosecutions – no government can afford it because it will come back and bite them as well.

Basically, there are a few Members of Parliament or the Senate who are reasonable men or women (that includes all party affiliated and independents). If you want to make a difference, you have to bug the living daylights out of your local member and associated senators. If enough people get off their backsides (stop watching neighbours or x factor or football) and start talking to and questioning their local representatives then we may, just may, see a change. If they don’t then there will be only a change of party (maybe) but no functional change of government per se.

Chrissays:

I suspect this is Bradis’s way of burying this till after the election. The current government have a lot of major problems on their plate at the moment and they probably know that this is a fight that would go against them.

The current Prime Minister has a by election coming up in Western Australia that is starting to get him rather worried. The siting member died and despite having a margin of 10% in the government favor it could possibly fall. If it does it will likely lead to the backbench seeking the head of the PM before the next election which is less than a year away. The government is majorly on the nose with the electorate for a series of major broken promises.

Economic Analysis is an Excellent Idea

Despite my skepticism about Mr. Brandis’ policies, I am pleased to hear him endorse such a progressive and forward-looking proposal as this one to include an economic analysis for all proposed changes to intellectual property law.

Obviously economic impact cannot be the sole determinant as there are many other factors at work such as moral rights and freedom of expression, but economic impact ought to be one component of the consideration.

Of course any economic analysis must consider ALL of the economic impacts. When considering a law to regulate scrap metal one it would be totally absurd to consider the economic impact on scrap dealers without also considering the impact on those who create metal waste and those who consume recycled scrap metal. Without that, the economic analysis could only suggest changes that would increase the cost of recycled metal, decrease the cost of scrap, and increase the volume of metal recycled — regardless of the harm it did to other parts of the economy. We would pass laws requiring every citizen possessing even a scrap of metal to deliver it for free to a licensed scrap metal dealer.

Similarly, when we consider the economic impact, we must include the impact on companies and people who would otherwise utilize fair use exceptions or would make use of public domain materials if copyright laws were not in place. I think any honest evaluation of the economic impact of these factors might prove quite a surprise to Mr. Brandis.

Anonymoussays:

Re: Re: Economic Analysis is an Excellent Idea

Unfortunately, none of your comments would have any bearing on the “analysis” as you are “a ignorant foreigner who has no influence and your not one of my mates”.

The citizens of Australia are irrelevant to Senator Brandis unless you are one of the select few that is within his little circle of friends. So unless you can influence him (with very large handshakes of influence) then you opinions are irrelevant.

Mike Shoresays:

The law is separate from reality

“The present Attorney-General, George Brandis, has made it clear he’s firmly on the side of copyright companies, and indifferent to the Australian public’s concerns or needs in a digital world.”

Flipping it makes you a pirate:

“The Australian public has made it clear they’re firmly on the side of fair use, and indifferent to the copyright companies’ concerns and needs in a digital world.”

Anonymoussays:

Re: Re: In Other News

In other news, AG George Brandis has run a cost-benefit analysis on the economic impact of banning society. It has the word social in it & that is communism!

He has found that society contribute zero measurable dollars to GDP, and thus can be banned with nothing lost.

Well except the votes from those that consider that the economy is part of society, not that society is part of the economy.

Let’s not forget that Senator Brandis is also the Minister for the Arts as well as the Attorney General, the one-stop shop for Rupert Murdoch’s News Corporation to bribe & own on all matters that relate to continuing a powerful monopoly in Australia.

Murdoch only believes in competition when he is getting into a new market, then it’s shut the doors with legislation to keep the profits flowing forever & ever.

Derek Kertonsays:

Blind In One Eye

Brandis: “a fair use defence was a controversial proposal and would weaken the rights of copyright owners.”

How about the other fact: Copyright itself is “a controversial proposal” and would weaken the rights of citizens?

Of course, that’s Techdirt’s point: Brandis is ONLY considering the policy from copyright owner’s perspective.

Anonymoussays:

Re: Re: Blind In One Eye

Well Brandis, PM Abbott & all the others in the current right wing government only listen to those that supply their party with funds or goods in kind such as a free ride in the press.

All the other citizens & businesses can go take a long walk off a short plank if they aren’t willing to pay to have their views heard. Now the PM Abbott has declared war on environmentalists using the word “Lawfare” when the courts are used to uphold the laws of the land in favour of the greenies who are trying to stop more new coal mines whose owners have paid dearly to keep their mining operations on track. “Coal is good for humanity”, Anthony John Abbott, Australian Prime Minister.

Johnsays:

You have it all wrong

You all assume that the cost benefit analysis is of the proposed fair use. Its not. The C-B is of the political party funding benefit of blocking any fair use. The cost (reduced political funding) is if they don’t block fair use. The benefit to the arts or the public is not even been considered. The only opinion that counts is the corporate donor.

Kronomexsays:

George “Insert Corporate Brand Name Here” Brandis, like all the rest of his cronies in government, is so deep in the corporate pocket that he needs a periscope to see out into the reality we poor commoners are being subjected to by these corrupt crooks. If it doesn’t benefit their masters then simply change change the rules and feed the peasants with bullshit reasons.

That One Guysays:

So about those 'cost benefit studies'...

When’s the last time they, or really any government did one of those for increasing copyright before doing so?

Never any study or even care what the repercussions, whether economic or otherwise, are when ratcheting up copyright, but even consider ratcheting it down for a change and suddenly it’s ‘too difficult’ and ‘needs to be studied for possible economic effects’.

MrTroysays:

Why is this even necessary?

Brandis has commissioned a cost-benefit analysis into an 18-month inquiry, producing a report that contains this:

4.1 The ALRC recommends the introduction of a fair use exception into Australian copyright law. This chapter briefly explains what fair use is, and makes the case for enacting fair use in Australia. It sets out some of the important arguments for and against introducing this exception.

(http://www.alrc.gov.au/publications/4-case-fair-use/summary)

It sets out some of the important arguments for and against introducing this exception? Sounds like a cost-benefit analysis was baked right in… which means that to answer my own question, the only reason why you would ever commission another analysis is that you didn’t like the first answer and you want a different answer on the second go.

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