Sunday, January 22, 2017
The Department of Communications and the Arts released last week the Cost/Benefit Analysis (CBA) on the possible introduction of Fair Use into our copyright act that it commissioned Ernst & Young Australia (EY) to undertake a year or so ago.
The Australian Law Reform Commission's (ALRC) report Copyright and the Digital Economy was submitted to the government in November 2013, and the Productivity Commission's final report late last year. Both bodies recommended that a US-style open-ended and flexible fair use regime replace our current closed and prescriptive 'fair dealing' provisions.
A fierce debate has been raging in the book industry for the last four years, most of it seriously misinformed.
The EY analysis attempts to grapple with the numbers and bring a measure of sobriety to the various claims and counterclaims. It does that well. It's measured, well researched and persuasive, standing in stark contrast to an earlier, and now widely discredited, PWC report commissioned by industry bodies that argued against fair use. (See an expert demolition here).
Basically the report's assessment is that the costs of introducing fair use are pretty minimal (about $20-30 million annually) but these are greatly outweighed by the benefits to the economy at large.
Unfortunately the report has a couple of major flaws however. Firstly it doesn't even address, let alone calculate, the effect on industry revenues if multiple copying for classroom use, and coursepack inclusion, of chapters of textbooks and other resources were suddenly deemed fair use. Such copying is now remunerable under the statutory license administered by the Copyright Agency. The industry would lose about $70 million or so a year, a sizeable whack especially considering that more than half of that goes straight to the bottom line).
Secondly, the report barely addresses any issues specifically relating to the higher education sector. Its prime, and in fact sole, focus is the primary and secondary school sector.
The issue now for the industry is how to respond. If the past few years have been any guide it could get very ugly. The opposition to any reform has been absolute and unrelenting.
I would urge the industry to seriously reconsider. It should accept changes that make sense in order to gain credibility in arguing against those that don't.
The fair use recommendations that publishers should accept relate to quotations, non-commercial private uses, incidental/technical copying, data and text mining, library and archive needs, and access to orphan works.
The contentious ground will be education. For instance, the EY report calculates that the Copyright Agency currently collects around $9 million per year for classroom usage that the schools argue is manifestly unfair - the display and distribution of otherwise freely available online material being the main one.
There should be no publisher resistance to allowing these uses to be deemed fair and therefore non-remunerable.
Publishers should focus their energies on the reproduction of what the report labels 'education-specific' materials - 10% or a chapter of texts produced for curriculum and classroom purposes.
The EY report frequently and favourably refers to Canada which liberalised, via a Supreme Court decision in 2012, the interpretation of their fair dealing provision for education. Multiple copying for classroom distribution became allowable and free, including copying 10% or a chapter of a text for students. But EY refuses to tease out the consequences of similar reforms in Australia. There are stark differences.
The hit to Canadian publishers was about $C10 million, no where near as much as would be the hit to Australian publishers given our different copying history and practices.
The way forward for the industry now is to narrow its focus to this critical issue and lobby accordingly. It will be deemed intelligent and forward-thinking (which would be a refreshing change!)
It would also be far better placed to forge a united front with the school and university authorities in arguing for sensible and acceptable reform.
Friday, June 24, 2016
Public Hearing: PC’s IP Arrangements Inquiry
(24 June 2016)
I fully support all the PC’s recommendations in its draft report, but wish to focus today only on the recommendation to repeal the current Parallel Importation Restrictions.
The commission would be well aware of the antipathy this proposal has once again aroused in the book industry.
I would urge the commission, in its final report due in a few months, to address the precise reason the industry is so negative. Unfortunately this did not happen in the draft report.
That issue is the industry’s universal and passionate belief that the commission wishes to abolish Australia’s ‘territorial copyright’ status which the PIRs ‘make possible’. The industry constantly conflates these two quite separate concepts and realities. This misunderstanding needs to be vigorously countered, a stake driven through the heart of it, or as in 2009 the government will be frightened off by proclamations of Armageddon.
Australia is a rights territory naturally, due to its geography (an isolated island with no porous borders and oceans away from the major publishing centres of New York and London), its population size (which can sustain economic print runs), its high literacy levels, that fact we speak English, and its mature and efficient book trade infrastructure (retailers, wholesalers, freight systems, multiple publicity platforms, etc).
Australian publishers can therefore confidently purchase by contract exclusive Australian rights and publish Australian versions of overseas titles. They are willing buyers and there will always be willing sellers.
Despite claims to the contrary the PIRs don’t grant, enable, construct or make possible this exclusivity. All they do is protect those publishers who abuse their contractual exclusivity by over-pricing and/or under-servicing. Booksellers cannot parallel import to offer their customers a better deal.
Provided the local publisher prices in accordance with the going rate of the Australian dollar, has invested in or contracted efficient distribution, and offers trading terms that are deemed acceptable by booksellers and others, then exclusivity can be guaranteed. Operational excellence will invariably secure close to 99% of local demand. It would not be a sound commercial proposition for retailers to buy around.
Without the PIRs the possibility will exist of parallel importation but in today's real world not the probability. But at least the competitive threat will still be there as it should be.
We're at a sweet spot now, where prices and the exchange rate are aligned. The PIRs are neutered. They are benign. They have no effect either way on importation patterns.
It may well be decades, if at all, before the PIRs are a factor again in industry behaviour. Online and global realities have stunned them.
Now therefore is the right time to remove them in case they rise like zombies in a quite different future. Obviously no transitional arrangements are necessary.
Another good reason for their removal is that this awful, ignorant and entirely emotional debate in the industry would end for good. Its recycling every seven years or so is tiresome in the extreme.
Finally, I would urge the commission to undertake another pricing analysis to establish the current state of play in the industry. It could be a truncated version of the excellent 2009 analysis. Today’s industry, under competitive pressure mainly from Amazon, has come a long way from the outrageous pricing practices that analysis showed. This would help confirm or otherwise the widely held belief, which I share, that removing the PIRs would have minimal effect on prices today.
Thursday, May 26, 2016
One of the favourite disaster scenarios imagined by publishers once Australia's parallel importation restrictions (PIRs) are removed from our copyright law is the one where no Australian publisher will ever again be able or even willing to buy exclusive Australian rights to an overseas title for publication here.
The theory is that US and UK publishers will exploit the opportunity to sell into the Australian market themselves and thus will only offer 'non-exclusive' rights. After all Australia will have been rendered an 'open market', a market where competing editions fight it out - the US edition, the Commonwealth edition, the Indian edition, and whatever others are out there.
Henry Rosenbloom, owner of Scribe, and a very experienced and well regarded publisher in Australia, clearly articulates this position in his recent blog post here.
There are two main things wrong with this scenario:
1. It rests on the belief that, absent the PIRs, Australia will no longer a be a territory for rights sale purposes. I've written numerous blog posts and articles and given many speeches, presentations and lectures over the years pointing out how absurd this proposition is. It rests on the assumption that everything that actually makes Australia a territory in the first place will, at the stroke of a pen, disappear - our geographical distance, population size, literacy levels, book trade infrastructure, etc.
2. It exhibits a rather quaint commercial naivete. It imagines that overseas publishers and literary agents will en masse shoot themselves in the foot and start indulging in behaviour that would be strategically silly and seriously unprofitable, not to mention bad for their authors.
It has been true for years that UK publishers in particular have been blindsided by the 'open market' terminology. They reflexively think Australia will become one. Continental Europe, the Middle East, Africa, South East Asia - these are open to all editions. Selling exclusive English language rights to a new Jonathan Franzen to a Hong Kong publisher makes no sense, nor would a HK publisher fork out for them, because of easy trade flows across borders in the region. Both importers and foreign exporters can 'free ride' without prohibitive costs. It's standard business for everyone.
Australia, in contrast, is vastly different. Booksellers rarely 'buy around' because their needs are overwhelmingly satisfied by efficient local publishers and it is way too expensive and risky to airfreight in quantities from abroad to satisfy local demand. Overseas editions are therefore kept out commercially.
The critical point is: this will be the natural way of things when the PIRs are abolished, and it's simply illogical and naive on every level to think otherwise.
As I write this the Australian dollar is heading for another few years of historic lows. Our book prices today are therefore situated at the right levels. While they were an average 30-40% too high when the dollar was strong a few years ago - and publishers were too slow to reduce them - that landscape has radically changed.
That actually means that retaining the PIRs or abolishing them now will have no effect whatsoever on trading patterns either way.
When the dollar strengthens again though, as it undoubtedly will, it is entirely predictable that too many publishers will again be slow to respond and their prices will remain unjustifiably high.
That's why we should take this opportunity to abolish these protectionist provisions now.
Tuesday, May 3, 2016
I would hazard a guess that only a handful of authors, publishers and their association representatives have actually read the Productivity Commission's draft report into Australia's intellectual property laws, or the Australian Law Reform Commission's 2013 report Copyright and the Digital Economy, or the Harper Review of our competition laws - much less any of the detailed and knowledgeable submissions that were lodged by numerous parties during the inquiry processes.
You can tell that by the dated and long-discredited rhetoric that's been continually spewed into the media condemning these highly regarded bodies' thoughtful and well-argued recommendations.
The book industry's arguments have been comprehensively dismissed time and again after careful and rigorous analysis, but the industry never learns and never adjusts. We get the same old, same old statements and arguments as if their demolition never took place.
The APA responded to the PC's draft report with this sort of familiar abuse: 'a radical manifesto'; 'one-sided analysis': 'an agenda for sabotage'.
Copyright Agency joined in: 'one of the greatest dangers to Australian-made content in a generation'; 'a wrecking ball'; 'it would lead to serious job losses throughout Australia's creative community'.
Author Tom Keneally couldn't help himself: '... the very medium through which ideas are disseminated in Australia, the publishing industry... eviscerated'; '... the ecology.. will wither'; 'the coming immolation'.
Author Jackie French pitched in: 'One in four Australian jobs are in the creative industries. This report will... abolish most of them'.
When the industry keeps coughing up this sort of anti-intellectual, vacuous bile, how on earth can it be expected to be taken seriously in the ongoing debate? The PC has called for input to help it frame its final report, due in August. How open could it possibly be to empty-headed abuse just restating delusional propositions that it and similar government inquiries have patiently dissected and rejected time and time again?
It's of course to be expected that industry bodies would voice lowest common denominator opinion. They always do - whatever the industry. Their representatives are paid to be shills.
But what I find profoundly disappointing is when our deeply respected and much loved authors indulge in the same sort of mindlessness. When we need intellectual rigour we get sentimentality. When we need calm and sober reflection on facts and evidence we get reckless, apocalyptic, doom and gloom melodrama.
The author community both in Australia and the US has, from day one, got it all wrong on Google's book scanning project. Time and again they've lost their legal battles over fair use. At every stage their arguments have been found wanting. But they adamantly refuse to learn, to acknowledge, to see sense, to respect the right of the wider public to embrace good public policy.
And most importantly, to comprehend what copyright law is actually all about - establishing the social and economic balances that make it work for everyone.
It's not only disappointing. It's shameful.
Monday, April 25, 2016
Reading publisher and author submissions to the Productivity Commission's inquiry into our intellectual property laws is a dismal way to spend a few days let me tell you.
The two issues of concern to the industry are the parallel importation provisions (predictably) and the possible introduction of US-style 'fair use' exceptions into the copyright act to replace our current and more limited 'fair dealing' provisions.
I want to address the fair use arguments the industry is making because they are quite simply dreadful if not downright dishonest.
Here's what Pearson says:
We would be very concerned to hear about any changes to Australia's fair use or fair dealing provisions, particularly in light of changes made to Canada's copyright laws with respect to fair dealing, which have had catastrophic effects on the publishing industry.
Here's what Oxford says:
Canada’s new ‘fair dealing’ guidelines, which were adopted in 2012, and which redefined what can be copied without compensation to creators and publishers, has had significant negative impacts on educational publishing in Canada.
Here's what McGraw-Hill says:
Taking the Canadian experience from 2012, revisions to ‘fair dealing’ directly contributed to an unprecedented decline in Access Copyright revenue for McGraw-Hill Education in Canada, with the Schools division heavily impacted. There has been a subsequent loss of jobs and a shift to a US structure, damaging not only the local industry but by extension the publications of Canadian-specific cultural and curricula content.
Here's what Macmillan says:
We support the view of the Oxford University Press Australia and NZ Submission that highlights the severe impact seen on businesses in Canada due to the change to a ‘fair use’ approach to copyright.
A number of other submissions refer to the hugely 'negative' and 'destructive' impact the Canadian change has brought about.
Then, over the weekend, this interview with lawyer Roy Kaufman from the Copyright Clearance Centre in the US appeared in an international book trade newsletter Publishing Perspectives which forecasts armageddon for the Australian industry if proposals similar to Canada's were to be adopted here.
This interview is well worth reading. It is an exquisite example of massively over-hyped, absurdly overly dramatic, apocalyptic nonsense. Even the statistics it quotes are cherry-picked and flat out wrong, all out of context and marshalled to support propositions that have no basis in fact. If an Economics 101 student served this sort of stuff up they'd be quite deservedly kicked back into primary school to study arithmetic.
In any case Canada seems to be the thing. But any calm analysis of the facts about the Canadian educational publishing industry's fortunes over the last few years shows quite a different picture. I've spent quite a bit of time recently trying to unravel what's happened there and this is what I've found:
- Canada's fair dealing provisions were indeed loosened in 2012 after Supreme Court decisions allowing a liberal interpretation of 'educational use' in classroom settings. Educational authorities subsequently issued guidelines allowing teachers to copy up to 10% of a work, or one chapter, without seeking permission or making any payments.
- Previously such copying had to be licensed by Access Copyright, Canada's equivalent to Australia's Copyright Agency/Viscopy. The payments to Canada's publishers and authors over the last eight years (since 2008) have been far less than Copyright Agency pays in Australia (roughly $A100m per year):
(Source: PwC 2015b, Economic Impacts of the Canadian Educational Sector's Fair Dealing Guidelines, p43)
- So, since 2012, the year the new guidelines came into effect and the year all provincial governments stopped paying licensing fees to Access Copyright, the industry suffered a loss in revenue of $10 million. Not $100 million, but just $10 million. Total industry revenues in 2013, as quoted in the PwC report for both School and Higher Education, were $540 million. So the percentage drop due to the fair dealing liberalisation was, at most, 2%.
- In contrast, the absolute collapse of revenues due to market forces as a whole started in 2006 when sales peaked. For the school segment alone, sales declined from close to $205m in 2006 to approximately $100m in 2015. That's a 50% decline (about 10-15% per year). It clearly dwarfs the licensing losses from Access Copyright.
- That's what Armageddon really looks like. What was at play here? Here are some quotes from Canadian insiders that I approached (and who wish to remain anonymous). All have been in the publishing game for many years:
'The short answer to your question is that the decline of educational publishing in Canada, especially at K-12, is a sad and sordid tale of a long and steady decline - think of the the frog in the pot - which began well before changes to copyright. I believe responsibility for this can be laid right at the feet of greedy owners who wanted all the cash but none of the risk, and paralytic general managers stricken by a mind-numbing lack of imagination, courage and foresight. I would say that new legislation, which undoubtedly weakened the raison d’etre of Access Copyright and future licensing revenue, was just one more small nail in the coffin'.
'The real business of publishing, as you know, is making outstanding educational products and services that further educational outcomes. In this regard Canadian educational publishers have really fallen short. They have held a death grip on traditional product profiles and business models. “From my cold dead hands” they protested - which, it turns out, has become a self fulfilling prophecy. Ultimately their sense of entitlement and self importance led them to the position that the problem was the customer, not their products and services. A fatal conclusion. In my view, buying “educational content” was seen by senior educators and administrators as a low return investment. They want to change instructional practice and have spent huge monies on professional development and system change. There is still a ton of money in the system, but only for things that map onto priority initiatives. Content acquisition isn’t one of them. Today, Canadian publishers have put up the white flag and just given up making any new indigenous educational product. Its very very sad'.
'In the digital age content is ubiquitous. Industries of all kinds are being disrupted, disintermediated and decimated by new digital solutions. Educational publishers are amongst the many victims of this global phenomenon. So yes it is Armageddon!!! Abso-fucking-lutely!!! But fixating on protecting intellectual property rights is like howling at the moon - its not going lead to innovation or better products and services. The problems are just so much bigger than that. One might argue that it only protects vested interests and excuses them from innovation and reinvention. Like taxi cab companies complaining about Uber - ultimately futile. Stop complaining and reinvent yourself!!!!'
'In my opinion the most significant difference between the current health and prosperity of K-12 markets in Canada and Australia is that in Australia parents pay for resources and in Canada governments do. In Canada, if it had been up to classroom teachers, textbook sales would have declined much less. But because spending in Canada is controlled by politicians and bureaucrats, spending priorities have really shifted based on efficacy and investments that make a measurable difference. In Australia, buying educational resources has a much lesser impact on government policy and budgets. I think that structural reality is the one to really protect'.
Wednesday, December 16, 2015
My submission concerns the issue of the Parallel Importation Restrictions (PIRs) in Australia’s copyright act that regulate the importation of books into Australia.
In my view it is clearly in the interests of Australian book buyers that the PIRs be abolished to enable our booksellers to import product from legitimate overseas sources in circumstances where the local rights holder was over-pricing and/or under-servicing. Australian consumers and readers would always be advantaged under that scenario, if only by the competitive pressure placed on the local rights holders to lift their game.
Australian publishers, authors and other book trade bodies have long been resistant to this reform as the Productivity Commission well knows. They cite the importance of territorial copyright to the vitality of the industry, and to Australian culture in general. They are mistaken in their belief, however, that the PIRs construct Australia as a rights territory.
Australia is a territory naturally, through its distance, population size, high literacy levels and mature book trade infrastructure.
The PIR’s are just classic trade protectionist measures, long discredited in other commercial realms (music and software, for example), that have absolutely nothing to do with territorial copyright which is granted by exclusive contracts over titles and lists. As they have operated for decades now, the PIR’s simply give protection to under performing publishers, rights holders and importers by removing competitive pressure.
The book trade around the world has always been territorially focused. Rights trading remains a central and critically important feature, for the simple reason that local operators in each territory are better able to exploit the various market opportunities for any given title due to their familiarity with the marketing, publicity, sales and distribution realities - in other words, feet on the ground.
There has never been any business logic for Australian booksellers to buy around local rights holders if those rights holders were competitive and professional, and treated their customers with respect. Operational excellence, including pricing policies that were responsive to the level of the Australian dollar against the US dollar and the Pound, has always been the best and only protection that was needed.
But as the Commission’s own survey of book prices in Australia in 2009 showed, significant and unjustified markups at that time, when the Australian dollar was strengthening, were the norm.
While some heat has gone out of this issue over the last few years because of the eventual lowering of prices by publishers due principally to competition from Amazon (see my article on this issue here) and the falling dollar, I am concerned that these circumstances are transitory and the old uncompetitive patterns could quickly reemerge if the dollar once again strengthens. The Australian book trade and readers in general would be far better served if the PIRs were abolished.
In conclusion I would like to make a comment about any transitional arrangements that the Commission may propose if indeed it recommended the PIR’s be removed.
With the dollar now much weaker than in the period 2009-2014 the significance of the PIRs in the normal operations of importing in the industry has greatly dwindled. The opportunity for booksellers to profit from ‘buying around’ has declined dramatically, and hence their indulgence in it is quite sporadic.
In other words the low dollar is acting as a transition process in itself. Publishers are not looking to the PIRs for business support. This therefore is the ideal time for a swift and painless execution.
The Commission must remember that the concept and reality of territorial copyright will not be affected one iota by such a move, despite what local rights holders and authors will be loudly proclaiming.
Peter Donoughue. November 25, 2015.
Sunday, November 29, 2015
Australian economist John Quiggin published a prize-winning book in 2012 called Zombie Economics.
He was referring to old, long discredited economic ideas and proscriptions that keep being touted by so-called experts as relevant and meaningful today. They're impossible to kill off once and for all despite convincing evidence that they're actually DEAD.
I was reminded of this last week when the government unleashed yet another iteration of our local book trade's tiresome debate about our Parallel Importation Restrictions (PIRs), a debate that's being going on now for twenty-five years.
The overwhelming majority of industry commentators remain absolutely aghast at the prospect that these provisions could be abolished. The week ended yesterday with the release of the open letter to the prime minister from Booker winning authors Tom Keneally, Peter Carey and Richard Flanagan, which I'll examine in a minute.
But the week started as it finished. The language resurrected and flung around was as colourful as ever. Words like 'flooded' (by trashy American books), 'dumped' (foreign overstocks), 'swamped' (by foreign remainders of Australian originals), 'degraded' (copyright), 'worthless' (Australian rights), 'decimate' (the industry), 'colony' (back to), 'vandalism' (ideological), 'laid waste' (culture). The list goes on.
I was also reminded of Tony Abbott's campaign against the carbon tax. Remember 'Whyalla' (disappearance), '$100 lamb roasts' (every Sunday), 'massive electricity price increases' (tripling)?
All of these outpourings of course are unmitigated economic tripe. To use my own colourful language, they exhibit a toxic mix of ignorance, delusion and hysteria.
The Keneally, Carey and Flanagan letter is full of it too:
Notice the sleight of hand: the basic 'protection of writers' copyright' will be extinguished by ending the PIRs. Then the awful apocalyptic consequences. And, yes, the mindless refrain: 'Territorial copyright' will be extinguished.
Not one piece of this dreaded scenario is remotely realistic. It's a combination of conceptual confusion, profound ignorance of common industry dynamics, and rhetorical mischief. Shameful, in fact.
They go on to claim that the Australian book industry 'is not a government subsidised or protected industry'. It's not government subsidised in the main, but it is certainly protected. The PIRs have done that for more than 100 years. They have protected importing publishers from the chill winds of competition and have cosseted an industry that in critical ways has remained dozy, unresponsive and anti-consumer for far too long.
The letter concludes with another zombie claim:
These rules and rights are what allowed us and so many other Australians to become published writers. These rules and rights are what enabled a golden age of Australian writing to occur. And it is our hope that this time of great literary achievement is an early chapter in the ever growing story of Australian literature, and not — if this decision stands — the end. We cannot return to being a colony of the mind.
One sentence in the letter, however, is completely true:
The argument that books will become cheaper if the rules are changed ignores the fact that books have become cheaper within the existing rules because of market forces.
That's sort of what competition does.
The Harper Competition Review and the government got this wrong when they claimed book prices would significantly decrease once the provisions were repealed. If they had been removed in 2009 when they should have been by the gutless Rudd government, the price reduction effect would have been swift and the 30% loss in sales the industry suffered greatly mitigated.
Finally, one thing the Keneally, Carey, Flanagan letter shows to full and powerful effect is that this debate will be won, as it always has in the past, by celebrity authors. There is no way the Turnbull government will abolish the PIRs with such articulate opposition from beloved public figures with instant access to every media platform. And especially now, when no claim that Australians will suddenly enjoy lower book prices will be taken seriously.
The mistake governments have repeatedly made, and are making again, is to give the brief to the Productivity Commission to examine the issue and to recommend 'transitional arrangements'. This prolongs the debate and demands extensive industry consultation (which invariably descends into industry condemnation). The only way this reform is every going to get up is for some future, smarter government to shove the legislation, after securing bipartisan support, into parliament late on a Tuesday night and announce it on Wednesday morning.
(A final point: The remainders issue - foreign versions of Australian originals - has always been the key one in terms of risk. The prices are so low the going exchange rate and the RRP of the Australian edition don't factor in the equation. The issue is should we structure our entire industry patterns around the possibility, even the strong possibility of these remainders coming occasionally to our shores. After all, only a small percentage of these overseas editions are remaindered in any significant volume, and a tiny percentage of Australian retailers or distributors would stoop so low as to import them. No regular bookseller would do it as they do business with integrity and in any case would not risk being ostracised by publishers they rely on.
Nevertheless, to rid the industry of the possibility, the best solution would be to introduce specific provisions disallowing re-importation. The US book industry, where re-importation is of far greater significance than importation (which is entirely a non-issue), is currently lobbying Congress to legislate to that effect after the Supreme Court judged in 2013 that re-importation was currently legal.
The problem with this solution is that it would most probably be contrary to the Berne Convention to which Australia is a signatory. Berne disallows countries from privileging their own books. All member countries' copyrighted products must be treated equally.
The only feasible option therefore may be our anti-dumping regulations. Publishers could apply to the Anti-Dumping Commission to have a duty applied to imported remainders which would make their prices at retail level equivalent to the local editions).