Copyright is in theory an autonomous area of law, operating separately and distinct from other legal considerations. However, over the last few years, as developments like the GDPR and the Christchurch Call have increased moves to regulate digital industries globally, it is increasingly difficult to keep copyright siloed from related rights issues. The lines around copyright are blurring.
In light of this, it seemed timely for the 2020 ADA Copyright Forum to focus on the way copyright is influencing, or being influenced by, its legal neighbours – from free speech to surveillance, privacy to Indigenous Knowledge, and even contract law.
After much planning, the final program saw the day divided into distinct parts looking at three of the main influencers – digital rights, Indigenous Cultural and Intellectual Property (ICIP) rights, and licensing.
We were privileged for the day to be opened by the Hon Paul Fletcher MP, the Minister for Communications, Cyber Security and the Arts, who talked about the role copyright will play in the government’s ongoing efforts to create a dynamic global market. He made it clear that copyright modernisation was still very much on the agenda, particularly in the context of ongoing reviews of digital regulation, and that reform proposals could be expected soon.
This led neatly into the first of the focused sections, looking at digital rights. Regulation is clearly on the agenda around the world, but there is still significant debate about the best settings to meet the needs of all stakeholders. The question for the day was how is this debate affecting copyright reform, and what are the best steps we can take to maintain the balance?
Our international guest speaker, Professor Anupam Chander of Georgetown University, answered by urging us all to look at the records of other nations, and not to allow calls for regulation in one area to lead to restrictive copyright approaches that could be harmful. This was followed by a local perspective from Professor Nicolas Suzor of the QUT School of Law and Digital Media Research Centre, who provided a similar message, urging us to keep human rights central in our consideration and to use them to help us make reform decisions. Sunita Bose of the Digital Industry Group Inc (DIGI) and Ellen Broad of the ANU’s 3A Institute then joined the two speakers in a panel reflecting on the themes raised, considering whether these issues should be treated as a copyright problem or something broader.
After the lunch break we moved on to our second area of focus – ICIP. Once seen as an outlier, ICIP considerations are now a crucial part of many copyright processes, particularly in the cultural sector. But what are ICIP considerations, and how do you apply them? Our three speakers did an amazing job of answering this question, showing us that there were working models already in place in forward thinking institutions around Australia. We were thrilled to be able to include Dr Terri Janke, Solicitor Director of Terri Janke and Company and an internationally recognised expert on ICIP. Dr Janke led the way with a very informative panel on some of the initiatives already being used throughout the cultural sector, including the True Tracks protocols and the First Peoples roadmap developed with the Australian Museums and Galleries Association. She was then followed by two case studies, with Karen Manton of the Batchelor Institute of Indigenous Tertiary Education’s CALL Collection and Kirsten Thorpe of the Jumbunna Institute for Indigenous Education & Research, outlined their own successful work in applying ICIP protocols and decolonising collections. This led to a broader discussion about the need to seed knowledge of these working processes through the sector, and a call for a national event focused specifically on ICIP for cultural institutions. We were all keen to explore this idea further.
Finally, we finished up the day looking at the growing problem of licences being used to restrict the copyright rights of users, and the potentially serious consequences this can have. Margaret Allen, State Librarian of Western Australia, looked at the extremely concerning case of restrictive licensing of the Australian Standards, which has limited access to basic legal information for us all. A range of groups are advocating for a solution to this, but so far none seems to be in sight.
Associate Professor Rebecca Giblin, ARC Future Fellow and Director of the University of Melbourne’s Intellectual Property Research Institute of Australia, followed this with the results of the National Library survey being run by the E-Lending Project. The main focus here were the problems caused for libraries by the lack of flexibility in current licensing models for ebooks from the big publishers. Even simple changes, such as the option for per-use terms, would lessen the risks in acquisition decisions, allowing institutions to develop more diverse and higher quality collections. But these do not appear to be on the cards under current publishing models.
We decided to end the day on a note of optimism – what if these barriers could be seen as an opportunity? Ross Balharrie of the State Library of NSW introduced us to their amazing indyreads initiative, which has seen them license ebooks from independent publishers and authors under sensible licensing terms that provide a benefit for all – another distribution stream for books that are often underexposed and more choice for the NSW public. The system launched with over 10,000 titles, including modern classics, and Nobel, Booker, Franklin and Pulitzer prize winners. With any luck, and vision of the future.
And as with every year, the outcome was a day of amazing copyright-related thought and discussion. We hope it has prompted attendees to think about possible directions for copyright reform in Australia, and to consider their own processes and assumptions. And if you didn’t make it this year, let us know what you think on our YouTube channel!