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Words. Alan Kirkland

Over the past few decades many have heralded the unprecedented emergence of a global market; however, the truth is that this is not historically unique.

The golden, and often forgotten, era of globalisation was in full swing long before the first Lexus had rolled off the production line in Japan. All of the measures of the globalisation phenomenon (foreign trade and investment as a proportion of global GDP, capital mobility etc.) were just as present leading up to the Great War as they are today.

One unmistakable difference in Globalisation Mk II is, however, the emergence of rapid, accessible, truly global communication. The internet has fundamentally changed the way we learn, engage, connect, do business and, of course, consume media.

Australia is a peculiar country. We are wealthy, isolated, large in size but small in population. These features have conspired for some time to deny Australian consumers access to the newest media available abroad. Our release windows for film, music and television shows have been later, our range sparser and our prices, well, higher.

But we lived with it, partly because there was little we could do to change it, and partly because we simply didn’t know any better.

The internet has changed all of this, and for the first time in a long time, Australian consumers can see how the other half live. Media can now be streamed or delivered directly to a consumer at home in Adelaide from a company in San Francisco, at minimal expense.

The problem is that instead of embracing this exciting new world, some media companies seem to be actively resisting it. As a result, Australian consumers have become acquainted with a new frustration, the increasingly common phrase “This content has not been made available in your country.”

To be perfectly clear, we are talking about legitimate content. It is not pirated material to which we are being denied access (in fact pirated material is widely accessible). CHOICE’s concern is about consumers trying to do the right thing and pay for content but being denied the right to do so.

It’s time for media companies to understand that their old business models that try to pretend that this pesky internet thing doesn’t exist, are simply not sustainable. The internet has seen the rise of the global consumer, in search of a global market to service his or her needs.

Continuing to deny consumers highly-demanded media in an accessible, timely and affordable manner will only encourage them to turn to an alternative that is accessible, timely and affordable: piracy. This helps no one. Piracy is a serious issue, but media companies need to reflect on how their inflexibility is contributing to the problem. Turning to governments to crack down on online piracy through surveillance and other draconian measures is not the answer.

As both a publisher of content and a consumer organisation, CHOICE condemns piracy, and all of our efforts in this space are directed at helping consumers to access legitimate content through whatever means are available to them. This includes using measures to get around geoblocking, such as virtual private networks (VPNs).

Access to content is just one aspect of CHOICE’s campaigning in this area. Our other key concern is with Australia’s woefully out-of-date copyright laws.

If you set out to design a law that consumers would inevitably and unknowingly break, in their millions, every day, the Australian Copyright Act would be what you would end up with.

In Australia it is legal to make a copy of a VHS for personal use, but not a DVD or other digitally formatted film. Why? Because our copyright law refers only to ‘videotapes’.

This exception was not added in the 1980s as you would probably expect, but in 2006. By that time, Australians had very much moved on from VHS technology, with 83% of households owning a DVD player. Apple began selling movies and TV shows through iTunes in 2005.

The 2006 amendments had lot of catching up to do. The iPod had been released in 2001, but until 2006 putting a song on your iPod that you had not bought through iTunes, for example from a CD, was illegal in Australia. The amendments also allowed consumers to record TV shows to watch later, 22 years after America had established the same practice to be ‘ fair use’, and 30 years after the first VHS player went on sale in Japan. Copyright law has failed to keep pace since, so time-shifting on the internet remains illegal in Australia.

This is not good enough. Our approach is failing to keep up with technology, and most importantly, failing to keep up with the very reasonable actions of consumers. If we couldn’t recognise DVDs in our laws in 2006, what hope do we have for cloud computing or social media?

Meanwhile, consumers are missing out. Not only are we forced to break the law by using our legally acquired content on the devices that we own, we miss out on technologies that are legal in ‘fair use’ countries such as the United States. TiVo was released in America in 1998 but most of its features were not legal in Australia until 2006 - and even then some remained illegal. Australians finally got TiVo in 2008 with reduced functionality.

Some copyright holders claim that there is no need for governments to act, that our current licensing schemes will work just fine. But the fact that a monopoly (which a copyright holder is by definition) has historically extracted rents from an activity doesn’t mean it has the right to in perpetuity. There must be a balance with the public interest.

That’s why CHOICE supports a ‘fair use’ system. Fair use would provide a broad set of principles to help determine what is and is not legal for consumers to do with their content. Unlike our current list of specific exceptions, fair use would be based on ‘fairness factors’ that consider what is being used and how, and the impact the use has on the market for the material. This would uphold the ability of artists and creators to earn an income from their work.

It is disappointing to see the hostility of some industry lobbyists to fair use, because the reality is that fair use and creativity are close friends. Where would the music industry be without the MP3 player today? How much would culture and public discourse suffer from the removal of mash-ups, satires and memes from YouTube and Reddit? How would all creative industries suffer without a Google search engine to connect people with products?

Fair use helps create a more collaborative, innovative society for the benefit of consumers and artists alike. It is no accident that the United States’ fair use system has seen the rise of both Hollywood and Silicon Valley.

In an era of rapid technological change we need fair use more than ever. Times are changing in the market for content, and that is a good thing. It is time to embrace these changes, and their potential, rather than clinging to the past.

Alan KirklandCEO
CHOICE

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