by Kim Williams, Copyright Agency, 24/4/2019
In my recent trips to Canberra as Chair of the Copyright Agency there has clearly been a sea change in the view of many (if not all) politicians and policy makers on ‘Big Tech.’
While these companies, of course, provide extraordinary services that are widely used, the image of some has been very seriously tarnished by their aggressive tax minimisation, persistent and industrial-scale privacy breaches, and failure to take the same editorial responsibility for what is broadcast over their platforms as traditional media.
Policy makers have realised that Big Tech has been true to its word: it really has broken things. They are just starting to act to address the policy failures that have led to this wreckage, including the frequent disavowal of responsibility offered by the Big Tech proprietors for their numerous egregious transgressions.
That is a welcome change from the attitudes I often encountered on previous trips to Canberra when I was CEO of Foxtel, chair of the Australian Film Finance Corporation and CEO of the Australian Film Commission.
On these visits I discussed a wide range of topics including the best way to ensure more Australian content on our screens; the best way to regulate sports content; how to maintain a robust free media; and, of course, to defend copyright.
My central point on copyright was, and remains, that an effective copyright regime is fundamental to ensuring the production of Australian content. It sets a framework that rewards and respects creators. It ensures creators have an incentive to keep creating. It encourages innovation.
It also enables creators to ensure they are empowered to manage the permissions and terms over the use of their work. It goes back to the Statute of Anne of 1710 or indeed the specific inclusion of copyright in the US Constitution where there is provision from the 1787 draft with the following words: “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”
While many policy makers accepted my position, I was, at times frankly dismayed to find that some policy makers took the view that copyright was broken at its core. They had accepted hook, line and sinker the proposition of (some) Big Tech companies that copyright was a form of protection, when it is simply, at its most basic, a property right that encourages investment and innovation. It armed creators with the capacity to assert their rights and defend their work.
It was put to me, sometimes with extraordinary vigour, that the world would be a better place if we accepted the view of some in Big Tech that a bright future beckoned if we would just let these companies ‘move fast and break things.’ What this appeared to involve was a radical rewriting of the Copyright Act in favour of the then rapidly emerging platforms and search engines as if they were disinterested parties with noble goals for creators in all they did.
The conversation would often move to piracy and what I considered the wholesale theft of content that was putting a wrecking ball through the business models of Australian content creators. The ‘copyright’s broken crew’ would shrug nonchalantly and say, ‘well that’s your problem.’ ‘Content prices are too high.’ ‘Content is not made available quickly enough.’ ‘It’s not really a crime anyway (seriously, this was said on the altar of “it’s possible, then it must be OK”).’
So, on World IP day 2019, I am really delighted to reflect that, while there is still much work to do, we really have made some pleasing progress over the past thirty years.
On piracy, things have also changed for the better. I wholeheartedly agreed when I ran Foxtel, and I agree now, that it is axiomatic that businesses must please their customers. And in the television, entertainment and information business, customers want to be able to watch what they want, when they want, over a device of their choice. This also applies to the written word.
Businesses in Australia and across the world have responded to what customers want. The choice of shows you can watch today is truly staggering. Today Australians have the choice of watching shows on Foxtel, ABC iView, Stan, Freeview, Netflix, Apple, Amazon, Fetch and SBS On Demand, to name a small number.
Indeed, there is such an explosion of content, at very reasonable prices, released at the same time globally, that it is simply not possible to argue, in defence of pirates, that they only pirate because they can’t get the latest show. Their stealing cloak has been taken from them as their bare-faced theft is there for all to see. It is indefensible.
The Government, screen businesses and content creators have worked effectively together to help reduce piracy with the passing of the illegal site blocking legislation by the Abbott Government with bi-partisan support. The law enables copyright owners to seek court orders for ISPs to block access to web sites that are hosting material that is in breach of their copyright. Or put more simply, sites run by people who steal content to sell can finally be shutdown. Their ‘copyright war profiteering’ is finally capable of sanction.
In fact, it seems to me that far too often we speak about the outcomes of digital technology as if these outcomes are something digital technology has made independently from the people who run it. The fact is that so called ‘pirate sites’ are not autonomous, anonymous entities operating to their own digital logic. They are run by people. People motivated by some of the oldest of human traits, greed and dishonesty. People who want to make a quick buck with a damn the consequences approach of the old world ‘huckster.’
Rights holders such as Roadshow Films have made good use of the legislation and in August 2017 obtained orders in the Federal Court to block access to 42 websites found to be engaged in providing access to copyright-infringing content. Since the legislation came into effect, the Federal Court has ordered the blocking of 229 illegal sites and 839 domains.
While it is often difficult to attribute a fall in digital theft to any one measure this legislation and the blocking of access to these sites have clearly made a contribution to a fall in piracy. As Creative Content Australia has found, there has been a 25% drop in the number of active pirates – from 21% to 18% among Australians aged 18+.
This continues the downward trend of recent years. The volume of pirated content has also been reduced by 25% since site blocking was implemented. Although digital theft does remain a real and serious problem, there is a sense of a mind change at work and a move to better outcomes for creators’ inalienable rights.
None of this is to suggest that those who support, and are involved in, the production of video, music, books or the visual arts, should rest on our laurels. Far from it. We still have too many déjà vu moments in policy advocacy. It confirms that the only way to ensure copyright works effectively, and to address digital theft, is to constantly innovate for viewers, listeners and readers; to perpetually look to update the regulatory regime in ways that ensure it moves with changes in technology and consumer behaviour while protecting creators; and to continually make the case to policy makers for sensible policy reform.
Happy World IP day. There is much to celebrate – much more to do!
Kim Williams is Chair of the Copyright Agency and Chair of the Thomson Reuters Founders Share Company – the trustees of the Reuters Trust Principles.