What is fair?

24 Feb 2017

The Deputy Chair of the Productivity Commission presented this speech on copyright and fair use to the Australian Digital Alliance Forum.


Good morning. Thank you Professor Giblin and congratulations on the launch of yours and Professor Weatherall’s book – What If We Could Reimagine Copyright? An anthology of ten thoughtful essays that collectively make for a forward‑looking treatise on copyright. And my thanks to the Australian Digital Alliance for inviting me to speak today, and to the broader church of the Australian Digital Alliance membership. Many of whom contributed time and effort in making submissions to the Productivity Commission’s inquiry into Australia’s intellectual property arrangements. Thank you.

With my words today I hope to do three things. First, share the lens through which the Commission reviewed and analysed Australia’s intellectual property settings, especially in matters of copyright. Second, do some much needed myth busting — to address claims made about copyright that on any objective examination are more fiction than fact. And third, and most importantly, convey what matters most in getting the policy settings right here.

At the get go of this Inquiry, we envisaged our task would be about how policy could grapple with the cocktail mix of technology, adaptability, creative endeavour, innovation and competition. And it did so to a large part. But at the end of the day — all roads led us to one simple truth; to ask and answer what is fair.

And when we use the term fair we’re not limiting this to fair use. Albeit copyright exception is the policy that matters most for getting the innovation and equity equation right. Because it’s not just about the creators vs the tech giants. And it’s not a zero sum game between rights holders and content users as some would have us believe.

It is about school kids, uni students, less tech savvy older people, less tech savvy younger people, documentary film makers, 55 year old redundant workers, universities and TAFEs trying to teach in a more accessible way, and the cost for anyone down under consuming the creative or innovative endeavour of others. For at the end of the day, out of kilter IP settings have and will continue to create a largely silent and growing class of ‘have-nots’.

So today I hope to connect the dots to the many everyday Australians that stand to benefit from the policy changes we have recommended to Government. For there is a compelling policy narrative to be had here — one of innovation and agility. But perhaps more importantly it is also one of equity that we can relate to everyday Australians. For when we relate the benefits of change to many Australians we know what is fair.

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