Content Cafe


Fair use? No, it’s not

by Michael Robotham

First let me say that I am passionate about freedom of speech, freedom of thought and freedom of expression. I also want to laud the digitalisation of media as one of the greatest breakthroughs in history.

Until a few years ago, despite being translated into 23 languages, my psychological thrillers were accessible to a relatively small number of people with a local bookshop, or library or who were willing to wait for the postman to arrive. Now a person living in the remotest corner of the world with access to Internet connection can read online newspapers, download books, music, films, TV shows, read academic texts and study research, tapping into a vast storehouse of knowledge. This is a huge leap forward, but it comes with problems.

I do not believe or desire that my books be stolen, copied or handed out for free. My time, my talents and my imagination do not belong to other people unless they pay something to compensate me for the work I put in. I don’t think I’m asking for much. My Gold Dagger award winning book Life or Death is available for between $10 and $20 depending where in the world you are. I think that’s pretty good value when you consider it will cost $20 and $25 to see Spectre, the latest James Bond film; or $11 to buy the new Adele album; or $65 to see Matilda the musical; or $132 to see Taylor Swift in concert.

Over the past twenty years, I have published a lot of books and every single one of them has been stolen and pirated. Let me give you an example. Several years ago, my novel Say You’re Sorry was discounted to $2.99 as an Amazon Daily Deal, available to US readers. The promotion led to 35,000 copies being downloaded and saw me reach Number 7 on the New York Times bestseller list (combined physical and ebook list). It was exciting news, but within a week, more than 30 bit-torrent and file-sharing sites had sprung up offering this book for nothing. As quickly as I could report one, a new site opened up. Some of them had counters showing how many times the book had been downloaded and the figures ran into thousands.

Every day I go online and Google myself – not because I’m overly conceited or desire reassurance, which I am – but because I’m looking for illegal file sharing sites. Each time I find one I notify my publishers who begin the task of getting my book taken off the site. This can take up to four weeks. But within days of shutting it down, it will be up and running again, operating out of Ukraine or Russia, or a jurisdiction that is almost impossible to police.

David Young, former CEO of Hachette in the US, an old friend of mine, told me five years ago that Hachette were spending US$8 million a year combating piracy. That is figure is a lot higher today.

According to recent research commissioned in the UK, we are actually lucky in the literary world because we have the lowest level of downloads in the entertainment industry. Earlier this year, Kantar Media carried out the research that estimated 7.8 million people, or 18%, of UK internet users aged 12 or over had accessed at least one piece of online content illegally over a three month period between March and May of 2015, with 6% exclusively consuming illegal content.

Readers had the lowest incidence of illegal access, at 11%, compared to 25% for people watching films and 26% for people listening to music.

As a writer, I’m being pirated less than musicians, filmmakers and video game designers. That doesn’t make me happy. It makes me a little sad, but not surprised. One of incredibly ironic things about piracy, is that often the very people who are most responsible for illegally downloading copyrighted material, are the ones who announce they want to work in a creative industry. They want to be filmmakers, actors, musicians, producers, journalists, writers, computer game designers, photographers and artists. Perhaps they think it will be different for them. More likely I suspect they don’t think at all.

I have heard all their arguments:

  • Books/music/films are too expensive.
  • You should be flattered that your work is worth stealing.
  • Piracy is good business – it introduces more people to your work.
  • I’ve brought a physical copy already and should automatically get a digital version.
  • I can’t lend an ebook so shouldn’t have to pay.
  • Books/music/films are too expensive.
  • Writers are filthy rich and don’t need the money.
  • Publishers are greedy multinationals trying to create monopolies and keep prices high.
  • Everything on the Internet should be free.
  • There is no such thing as copyright in the digital world.
  • It can’t be counted as lost income because the pirates would never have bought the book/film/music anyway.
  • Shakespeare and Leonardo Da Vinci didn’t have copyright.
  • Piracy and theft of ideas allows for greater creativity. People adapt, improve, transform and create new works.
  • Copyright laws discourage businesses from investing in new technologies and make it harder for individuals to access the knowledge upon which innovation is based.
  • Copyright laws crush the poor and benefit the wealthy and stifle creativity.

I accept that discounting can help a writer gain a large audience. I also accept that sometimes copyright and patent laws can go too far, particularly when companies try to patent genes or stifle innovation to protect their profits or market share. I also accept that great innovators like Steve Jobs admitted that Apple stole other people’s ideas and set about making them better. Ironically Apple is now one of the most aggressive litigators when anyone strays too near its patents.

Let me tell you why copyright is important.

A painter can paint my house for nothing if he chooses. A mechanic can repair my car for free. And I can sell my books for nothing if I choose.

But if I ask for payment – just as the painter does or a mechanic – I should be compensated for my labour.  That is a basic principle of economics – the notion that the price of anything is determined by demand and supply and the cost of producing it. And that a worker has the right put a price on their labour.

It’s impossible to know exactly how many sales I have lost to illegal downloads over the past decade, but my US publishers estimated it was close to 40,000 ebooks last year.

It irritates me, but I personally don’t care about losing those sales. Enough of my readers do the right thing to allow me to carry one and keep producing books. The reason I am so passionate about stopping illegal downloading and protecting intellectual property is for the next generation of writers, musicians and film-makers.  How are they going to make a living?

I have a 22 year old daughter, Alex Hope, who now lives and works in Los Angeles as a songwriter/producer. She began writing songs and gigging at 14, playing in local pubs and at festival. Back then she borrowed $2,000 from me to go into a recording studio and produce an EP that she sold on-line and at gigs for $10 a copy. She had worked out that school friends would buy enough copies to pay back the money. Instead most of them copied, shared or pirated a single CD.

Alex said to them, ‘But I have to pay my Dad back. It’s only $10. And it’s me – a friend.’ They shrugged it away. Few of them believed in paying for music.

Another of my daughters, Charlotte, then aged eight, came home from primary school with a note from her teacher. She was in trouble for walking out of her classroom. It was ‘clean-up’ day before the holidays and the teacher had let the class watch a DVD of ‘Chicken Little’ – a counterfeit copy that someone had picked up in Thailand or Bali. My Charlotte knew the film wasn’t out yet in Australia and that they were watching an illegal copy. That’s why she walked out of the classroom. The teacher was angry. I was proud.

There are people and businesses who believe Australia would be better off without copyright, or with a watered down US version ironically called ‘fair use’. How is it desirable for those who have the talent to create something, be it words, music, images or whatever, to be deprived of the right to profit from that talent?

And anyone who asserts that films, music and books of the same quantity or quality will continue to be produced if we had no copyright is talking nonsense. It would lead to a world where writing, filmmaking, photography, journalism and song-writing would be forever hobbies, never careers. Either that or we’ll go back to centuries past when artists survived thanks to patronage and political favours, painting and writing to flatter the elites. Already, there are examples of novelists taking money for product placement in their stories.

This is what we face. We have to fight to protect our copyright regime and to educate governments and the public that copyright matters and illegal downloading is theft.

Yes we can have art for art’s sake, but why limit ourselves, why settle for amateurism or part-time or force our creative people to hold out begging bowls. Art must have value for our sake and the sake of future generations.

This was a speech Michael gave as part of the Copyright Agency Author Talks series held in Adelaide on 2 December 2015. First published on Copyright Agency website December 3 2015. Permission obtained for re-publication.

Born in Australia in November 1960, Michael Robotham grew up in small country towns. In 1979, he became a cadet journalist on an afternoon newspaper in Sydney. For the next 14 years he wrote for newspapers and magazines in Australia, Britain and America. In 1993, he became a ghost-writer, collaborating with politicians, pop stars, psychologists, adventurers and show business personalities to write their autobiographies. He is a twice winner of the Ned Kelly Award for Australia’s Crime Novel of the Year and this year won the British Crime Writers’ Association Gold Dagger for his novel Life or Death.