Last year, the Australian government asked the Productivity Commission to review intellectual property rights in Australia. The Commission’s draft report was recently released, and although I haven’t read all 587 pages of it, I have read the sections that concern the book publishing industry. The title, Copy (Not) Right, pretty much sums up the Commission’s attitude towards copyright. As the Australian Society of Authors reports:
“They believe copyright law is an impediment to the consumer and should be curtailed. They have gone about their task with dedication, cynicism and resentment towards the arts across the board, but none more so than towards books and authors.”
The Commission makes three main recommendations about books. Firstly, the length of time that copyright exists should be drastically reduced. Secondly, Australian territorial copyright should be abolished and parallel importation of books introduced. Thirdly, the current system of ‘fair dealing’ should be replaced with the US system of ‘fair use’.
I’ve previously written about how destructive the introduction of parallel importation would be for the Australian book industry. The implementation of a ‘fair use’ system would also cause significant problems for copyright holders. The current system of ‘fair dealing’ means that Australian copyright owners are paid if their work is used, with a number of sensible exceptions (for example, people are free to use copyrighted material for reviews, research, study, satire or parody, news reporting and legal advice). A ‘fair use’ system would mean that anyone could use any copyrighted material for free, without permission, provided the use was ‘fair’ – with the definition of ‘fair’ in each case decided by the courts. This would be great news for lawyers, but not so great for impoverished authors trying to stop unauthorised and unpaid use of their work.
However, it’s the Commission’s recommendation about term of copyright that’s really mind-boggling. Currently, copyright exists for seventy years after the death of the creator. (Personally, I think that’s too long, but I didn’t make that decision – it was made by US legislators, supposedly because Disney wanted to keep control of Mickey Mouse, and it was then agreed to by Australian legislators as part of a US-Australian trade agreement.) The Commission wants copyright to be fifteen to twenty-five years from creation. That’s right, fifteen years. That means that in a few years, I’ll have to give up all my rights to the novels I’ve written so far. I won’t be able to earn any money from them or control who publishes them. Not surprisingly, Australian authors are a bit upset about this. Jackie French has written:
“For 25 years I have worked as an author, supporting my family.
Innocently, I had assumed that the royalties from these books would continue to support my husband and myself in our old age.
Now, in my sixties, I have been told by the ill-named ‘Productivity Commission’ that ‘Writers rarely write for financial reasons,’ and I may only own my work for 15 years.
If I had spent my time renovating houses, or investing in shares, I’d own them. So would my heirs. If you built a bicycle or a house, would you give it to anyone who cares to grab it, in 15 years’ time?
Does Thomas Keneally have no moral right to ‘Bring Larks and Heroes’? Does Mem Fox no longer have a right to ‘Possum Magic’ nor I to ‘Diary of a Wombat’?
Will Malcolm Turnbull give away his investments when he has owned them for 15 years?”
As Richard Flanagan said in his keynote speech at the Australian Book Industry Awards last week:
“So Mem Fox has no rights in ‘Possum Magic’. Stephanie Alexander has no rights in ‘A Cook’s Companion’. Elizabeth Harrower has no rights in ‘The Watch Tower’. John Coetzee has no rights in his Booker winning ‘Life and Times of Michael K’. Nor Peter Carey to ‘The Kelly Gang’, nor Tim Winton to ‘Cloudstreet’. Anyone can make money from these books except the one who wrote it.”
How can the Commission possibly think that this will improve “productivity” in the book industry? Why would an author or publisher want to continue to produce books under these conditions? What about an author writing a long-running series? By the time she’d written the fifth book, the first could be out of copyright. And too bad for an author whose book is made into a film fifteen years after initial publication – the author won’t see a cent of the profits from the film sales, nor would she earn any royalties when the film tie-in book hits the bestseller lists.
I re-read this section of the report in an attempt to understand the Commission’s reasoning, but my most generous interpretation is that they simply don’t understand how the book industry works. For instance, they claim on page 114 that for books, “by 2 years [after initial publication], 90 per cent of originals are out of print”. Really? My first Australian novel was far from a bestseller, but it’s still in print nine years later, available in both paperback and as an e-book, and that’s hardly unusual.
The Commission also blithely suggests that any negative impact on the Australian publishing industry as a result of these changes “would be addressed by ensuring that direct subsidies aimed at encouraging Australian writing — literary prizes, support from the Australia Council, and funding from the Education and Public Lending Rights schemes — continue to target the cultural value of Australian books”. All those Australian literary organisations and writers reeling from Black Friday’s funding cuts may manage a hollow laugh at that.
There is still some hope for Australians who love books. Just remember, there’s a federal election in July.