Tendentiousness 101: or being wrong while using the body language of being right (copyright edition)

Copyright Agency Limited (CAL) is one of our more rapacious copyright maximalist organisations. It is a nice illustration of why things that sound like nice ideas don’t always work out. CAL was dreamt up when it was thought that photocopiers might damage incentives to publish, or so the publishers argued. They would presumably have been right about some sub-set of publications, but as we all know, often unpaid copies and paid copies are complements, not substitutes.

Be that as it may CAL was set up to try to collect money from places where copies of things were made which might otherwise fall outside the net of payments to publishers. The thing is that CAL is a very inventive organisation and our system of copyright law imposes obligations in all sorts of places that might have surprised you. Like old surveyors’ maps of homes in NSW. There, the Government didn’t think to write contracts with those depositing the surveyors maps to claim copyright, so guess who retains them? The surveyors. So CAL goes in after the copyright – thus gumming up the works of open access to surveyors’ maps so it can redistribute usually tiny amounts to Australia’s surveyors – and pick up its fee on the way through – and fund lots of court cases in defence of its cheeky expansionism.

It now makes a lot of money from charging schools for photocopying web pages – which are freely available on the net! Call it chutzpah but that’s how CAL, which is a creature of government, drives its takings up and up.  From a measly $7 odd million in the beginning to $122 million in 2011-12. Nice work if you can get it.

CAL is also vigorous in politically lobbying for maximalist copyright and as you can see from these examples, it’s amazing what scraps you can find left on the pavement from a legal regime that presumes copyright is generated pretty much anywhere, and presumes it generates royalties even where it makes little sense that it should.  I was recently at the National Library at an event where three of the short-listers for the Miles Franklin were interviewed, and it was sponsored by CAL which donates 1.5% of its gains (both well and ill-gotten) to a cultural fund for such purposes.

Before the event, the relevant CAL person came and gave us a good revving up about the dangers to Australia’s copyright industries if there were any ‘radical’ changes to copyright. It just so happens that, after a year or so of study the Australian Law Reform Commission has recommended that Australia have more flexible exceptions to copyright. These ‘radical’ changes would have virtually no negative effect on the incentive to create works – because the flexible exception envisaged, like the US test of “fair use” (a codification of an earlier common-law test) takes as one of its pillars that a use isn’t fair if it undermines the incentive to create. Fair use would clean up anomalies like the infamous bar or so of “Kookaburra sits in the old gum tree” in “Land Down Under”.

The doctrine of “fair use” played a non-trivial role in the rise of the iPod and Google Search each of which would have been riskier under our more circumscribed “fair dealing” provisions, which essentially require that the government has thought of the situation in which you’re using someone’s copyright without permission and has explicitly written an exception into the act. Anyway, suffice it to say that none other than Lateral Economics, that Troppo touchstone of reasoned moderation supported Google, Australia’s major public libraries and universities and other members of the Australian Digital Alliance (which has the good taste to have your humble servant as its humble patron) in their support of more flexible exceptions in the ALRC inquiry. For reasons explained in the link above, the doctrine of “fair use” is important for getting out of the way of the digital economy.

Be that as it may CAL is out there spruiking its stuff. Responding to this site which campaigns for flexible exceptions CAL has this to say:

A new website asserts that ‘Australia’s copyright laws are out of touch with the digital world’ and gives a list of ‘examples’. Unfortunately, a number of the ‘examples’ are unsubstantiated, and inconsistent with the facts.

Full marks for the body language, but its claim that what its opponents said is unsubstantiated is . . . well unsubstantiated. Here’s a sample: but you can check out how CAL substantiates its claims that its opponents claims are unsubstantiated yourself.

Australian schools pay up to four times more in copyright fees to deliver education using digital technologies than using paper copies.
  • Special provisions in Australia’s Copyright Act allow schools to use nearly all text and images, print and digital, for education, provided there is fair payment for the content creators
  • The Australian Government has appointed Copyright Agency to manage these provisions (known as the educational statutory licence)
  • By agreement between schools’ representatives and Copyright Agency, the schools’ sector pays a flat rate per student for all print and digital content used under the statutory licence (i.e. that would otherwise require copyright permission)
  • The rate is less than $17 per year for all content.

Postscript: the ADA has published chapter and verse responses to CAL’s claims.  I look forward to CAL’s response

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john r walker
john r walker(@annesanders)
8 years ago

Nicholas
The ALRC report recommends for the ending of the statutory licenses that CAL was appointed/created to manage and their replacement by voluntary licenses, A good thing. The report also recommends a US style “fair use” system for things like education , a good thing. However these are not necessarily a good thing for CAL, and a good section of the older publishing industry, can not expect them to like things like ibooks where you can sell your stuff direct ,on 70-30 split, to students and schools, no? They will fight it and fair use , with all their might.
PS the photocopier stuff was two? court cases in the late 70s that gave rise to a problem for libraries that was solved by statutory licensing ,this created CAL.

john r walker
john r walker(@annesanders)
8 years ago

PS
CAL is really , in many ways, the operator of a public subsidy to publishing ,paid for out of public education budgets, whether this is a good thing . .. i do not know .

Mike Pepperday
Mike Pepperday
8 years ago

Nicholas, can I suggest you paste a version of your post into

http://en.wikipedia.org/wiki/Copyright_Agency_Ltd

or, easier, just dump the whole post into the “talk” section of that page?

Paul Frijters
Paul Frijters
8 years ago

good post, Nick. You’ve convinced me that the copyright regime that fitted previous era has become a problem for the current era.

Patrick
Patrick
8 years ago
Reply to  Paul Frijters

I’m not sure he says as much… maybe you should read this as an illustrative addendum to the post immediately before it.

john r walker
john r walker(@annesanders)
8 years ago
Reply to  Paul Frijters

Agree. Mind historically speaking the statutory collective copyright never did fit realities that well.
From Shane Simpson’s 1995 report for the federal Government.

“experience shows that statutory licences drafted without appropriate industry consultation are often unworkable and voluntary licences are required to replace them.”

john r walker
john r walker(@annesanders)
8 years ago

The ALRC paper is the first that I have seen to identify the big problem with the statutory CAL model -It is very inefficient….pointlessly costly for all.

For a example the total value of the royalties paid for those old surveys, would have to be much less than the costs of collection and delivery (assuming you can find a old surveyor to pay it to, at all).
The compulsory collection of small royalty rights for people who can not be found, greatly increases the costs of the whole operation both for right-holders who have chosen CAL to mange some aspect of their rights and to the public, for no good reason.
john walker