203._org_The Newspaper Works (TNW)
FROM: The Newspaper Works (TNW) 
TO: Australian Law Reform Commission (ARLC)  

RE: Issues Paper, Copyright and the Digital Economy

Submission lodged by Mitchell Murphy
(Executive Director, Publishing, The Newspaper Works)
29 November 2012

Introduction

The Newspaper Works (TNW) is the peak industry body that represents the interests of the newspaper industry and their associated digital content platforms.

The Chief Executives of the major publishers in Australia - News Ltd, Fairfax Media, APN News & Media and West Australian Newspapers - are TNW board members.

Copyright is a crucial issue given the enormous financial commitment by publishers to generate quality content.

TNW welcomes the opportunity to lodge a submission to the ALRC’s Copyright and the Digital Economy Issues Paper.

The Paper

­	Appears to accept that copyright theft is ‘a reality’ that should be accepted;
­	It condones infringement by suggestion of exceptions from the Copyright Act which  legitimise infringement – in some instances broad exceptions such as ‘fair use’ – rather than finding effective ways to enforce the law and prevent and/or penalise theft; 
­	There is a lack of evidence to substantiate the ‘problem/s’ which the suggestions are deigned to ‘address’;
­	Does not consider the value of existing copyright and business models; 
­	The approach and suggestions risk undermining Australia’s copyright industries, and providing disincentives to invest in those industries including publishing.

Key points

i.	The orderly management of copyright is essential to promote the continued production of original copyright materials; and ensure sustainable business models and on-going investment and employment in Australia’s copyright industries.

ii.	The Copyright Act 1968 (the Act) generally strikes a balance between content creation, consumer choice, and investment incentives; and provides an appropriate environment for the evolution of business models within the digital economy.

iii.	Suggest supporting the changes (specific legislative changes for clarification to address free-riding) proposed by CopyCo and the publishers’ submission.

iv.	Exceptions

TNW does not support the ‘relaxing’ of the Act by extending the scope of exceptions, in some instances broadly (such as ‘fair use’ – see below)

­	It will impact investment in the production and distribution of content, and therefore the contribution of creativity to Australian society and the economy;
­	We do not support legitimising behaviours that would otherwise be illegitimate and illegal by devising exceptions in law;
­	Creation of exceptions may lead to the exclusion of digital distribution channels to rights holders. Rights holders must be able to continue to realise the efficiencies offered by digital distribution channels. It should not be shut off via the unintended consequences of policy making;
­	Creation of more, and broad, exceptions without ‘purpose’ poses significant risks to the creative industries and publishing.

v.	The ‘fair use’ exception
 
The concept of ‘fair use’ is supported by those entities that would benefit from ‘broad’ and ‘flexible’ access to content on the basis of that access being ‘fair’ and ‘reasonable’.  Internationally, ‘fair use’ is supported by companies including Google, Yahoo etc.  

TNW does not support the introduction of a ‘fair use’ exception for the following reasons:
 
­	Lack of evidence that it is required in Australia;
­	‘Fair use’ is distinct to the US, and is supported by almost 200 years of case law;
­	‘Fair use’ would not deliver greater certainty – to the contrary;
­	‘Fair use’ is not a general defence to copyright infringement;
­	Concept is highly subjective;
­	Incompatible with international obligations;
­	Economic benefits are overstated – Dr George Barker research.

For information:  Dr George Barker’s ‘Fair use’ research and critique

In August 2012, Lateral Economics for the Australian Digital Alliance released research to support a broad ‘fair use’ exemption and copyright reform.  The key message from the report is a potential $600m annual economic boost from copyright reform.  

That research, and other research supporting ‘fair use’ from the US, Europe and Singapore, has been critiqued by Dr George Barker from the Centre for Law and Economics. Village Roadshow contributed to funding Dr Barker’s research.  

Dr Barker’s research (published during the week beginning 26 November) – articulates 3 fundamental weaknesses that ‘make the [Lateral Economics] analysis unreliable and its recommendations irrelevant’:

i.	the theoretical economic analysis of the costs and benefits of broadening copyright exemptions;
ii.	the empirical analysis and in particular the methodology it adopts from earlier US and European Studies; and
iii.	the legal analysis.