Hollywood’s eyes wander down under

Published on the 14/11/2017 | Written by Jonathan Cotton

AU copyright_MPAA_ANZ

MPAA has come out swinging against Australian copyright laws, Kiwi piracy…

Hollywood’s legal eagles have signalled their disdain for developments in the Antipodes in a response to potential revisions to Australian copyright laws – and a somewhat jaundiced view of the respect or lack thereof that Kiwis have for intellectual property. In short, the protector of the silver screen the MPAA (Motion Picture Association of America), is not impressed.

Last year, Australia’s Productivity Commission proposed a rethink (read: liberalisation) of local copyright laws. Not an unreasonable proposition, on the face of it, given the march of progress and the very different environment in which content is created and distributed in today’s day and age.

In a report published by the Commission and released in December of last year (entitled Intellectual Property Arrangements) recommendations are made, including the easing of fair use laws and, more controversially, provisions that allow Australians to use VPN systems to work around geo-blocking technology.

Sweeping in scope, the report also recommends:

  • Legislation that would prevent companies from overriding consumer rights via restrictive contracts
  • Fixing error-filled Australian ‘safe harbour’ laws (that put us in breach of the Australian/US Fair Trade agreement)
  • Ensuring publically-funded research is available to the public
  • Revising competition law that allows content companies to create restrictive or anti-competitive licensing agreements

It’s not the first to recommend Australia loosen up its fair use laws. The Copyright and the Digital Economy Report did the same in 2014. In any case, the government responded positively at the time, supporting most of the recommendations, promising to review Australian safe harbour rules and announcing a consultation around fair use laws.

So far so good, but now the MPAA has released a document of its own with a few things to say about the proposals – and the state of IP law in down under in general.

The MPAA – made up of the big six Hollywood studios – Disney, Paramount, Sony PIctures, 20th Century Fox, Universal and Warner Brothers – released its 2018 National Trade Estimate Report on Foreign Trade Barriers earlier this year, and late last month presented it to the US Government. To say it’s not a fan of the way intellectual property is managed in Asia/Pacific and Australia in particular is putting it mildly.

“Various Asia-Pacific economies maintain restrictive quotas, high tariffs and foreign investment limitations,” reads the report. “Such policies harm both U.S. exporters and the local industries these policies purportedly aim to protect. Meanwhile, a growing array of piracy platforms in the online space threaten the vitality of the legitimate marketplace, creating barriers for U.S. audiovisual exports.”

The recommendations from Productivity Commission show, said the MPAA, a “breathtaking lack of understanding of long standing international norms and the importance of copyright to Australia’s creative industries”.

“These changes could create significant market uncertainty and effectively weaken Australia’s infrastructure for intellectual property protection. Of concern is a proposal to introduce a vague and undefined ‘fair use’ exception unmoored from decades of precedent in the United States. Another proposal would expand Australia’s safe harbor regime in piecemeal fashion. Still another would allow circumvention of geo-blocking and other technological protection measures.”

Alternately exasperated and threatening, the report says that if the Commission’s recommendations were to be adopted, they could “result in legislative changes that undermine the current balance of protection in Australia”.

“Local policymakers should take care to ensure that Australia’s vibrant market is not inadvertently impaired and that any proposed relaxation of copyright and related rights protection does not violate Australia’s international obligations.”

To be fair, it’s little wonder they’ve got their dander up. Both Australia and New Zealand are prolific copyright violators, with one of Asia/Pacific’s highest per capita rates of online infringement. And it could be argued that, in some instances at least, Australia does in fact lack meaningful deterrents for flagrant IP abuses.

Case in point: Australia’s anti-camcording legislation (or lack thereof). In 2012, an Australian citizen was convicted for illicitly recording 14 audio captures, several of which ended up being distributed internationally. His fine? AU$2000.

“Such low penalties fail to reflect the devastating impact that this crime has on the film industry,” soliloquized the MPAA report.

“Internet piracy stands as the greatest threat to the film and television industry throughout the Asia-Pacific region.”

And when IP infringing has been detected, the group says that “difficulties remain in obtaining police assistance.”

“These challenges are magnified by undue delays by some State Police when referring matters to the Australian Federal Police and Commonwealth Director of Public Prosecutions.”

New Zealand isn’t spared the lash either: “Rampant” internet piracy, unauthorised streaming and a sloppy approach to TPPA matters make the country a smaller, if no less flagrant, offender. According to the MPAA’s document, that is.

And it’s not like the MPAA is the only body to take issue with the proposals. APRA spit the dummy on its release, as did the Productivity Commission.

To make the obvious point explicit, copyright law is a highly complex area, understood by few. The MPAA is framing the debate according to its own self-interest – no shocker there, but they’ve got more than a few legitimate points too. Just how is a fair, workable balance struck that protects the interests of content creators – foreign and domestic – without simply delivering either’s wish list on a plate?

And there are pragmatic concerns too: Go too strict and they you’ll stifle innovation and creativity, domestic or imported. Go too liberal and a foreign power may start wiping privately owned servers and insisting on SWAT-style raids.

“The great difficulty here is that copyright law is extremely complex, and the debate is so emotive that the details often get lost in the heated arguments,” said Nicolas Suzor, Associate professor, Queensland University of Technology.

“What little empirical evidence we do have to guide policy is glossed over in a strong reaction against change. The reaction of the established copyright industries is understandable. It has been very difficult for publishers and distributors to adapt to the internet, and they are only now beginning to develop business models that work in the digital age. The process has been painful to say the least.”

When emotions run high, Suzor said, sensible approaches to IP and copyright issues go out the window.

“The great shame about the copyright wars is that sensible, evidence-based proposals for reform get mixed up with highly emotive reactions to ‘piracy’. The proposals by the Productivity Commission are careful and well justified. The evidence we have is that they are not likely to harm the actual revenues of Australian creators.”

And things aren’t perfect as they stand – most notably Australia’s confused safe harbour provisions – but US industry lobbyists are certainly not the single source of truth for the best way forward. And where the truth lies really does depend on who you ask: Established enterprises with IP and content they want to protect will always promote strong copyright laws. Those business looking to ‘move fast and break things’ will have a different position.

Either way, grab some popcorn, because the copyright fight is just getting started.

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