Online infringement hurts: interviews with Australian creators

Australian creators understand that digital distribution is changing their industries – but they’re still materially affected by copyright infringement. AAP Image/MONA

Music is no longer a treasured experience between artist and audience, people want easy consumption and access – Australian musician/ songwriter.

Australian creators have been severely affected both financially and creatively by the widespread use of digital distribution models. For my research, I conducted interviews with a variety of creators in late 2014 about their attitudes to copyright and digital distribution. (The quoted material in this article is taken from those interviews.)

What I found was that while creators have been prepared to engage with various new models of distribution, such as Spotify and Flickr, they still encounter widespread unauthorised digital copying of their material.

The “safe harbour” regime – a compromise solution introduced in the US to limit the financial liability of online service providers for the illegal postings of their users – resulted in the development of the notice and take-down model of content management.

This “post first and ask questions later” model facilitated the massive growth of the businesses such as YouTube. In turn, this fostered the emergence of remix culture and globally distributed user-generated content.

Artists invest a lot of time and money to deliver a product for consumers to enjoy, but receive no money because consumers feel entitled – Australian songwriter/ music artist.

One issue for copyright owners is the blurring of consumptive uses of copyright material – such as watching a movie or listening to an album – and genuinely creative re-uses of material, such as creating a parody. Much of the current debate surrounding copyright assumes that any and all remixes are good and should be permitted on the basis of creativity.

In turn, this appears to have resulted in an overall downgrading of consumer attitudes to the value of creative works.

Nor does the argument that any use of digital distribution models should give carte blanche to free-range infringement make any sense (see for example, Mark Pesce’s argument here. These arguments disregard the thousands of hours that are required to create even small (but valuable) elements of such works (for example, five-and-a-half months for 90 brilliant seconds in X-Men Days of Future Past.

The second issue of relevance to this debate is the question of who – if anyone – should be responsible for protecting rights against illegal online uses of copyright material?

In 2014, the Australian Government put forward a series of proposals for public comment aimed at combating online piracy. These included:

  • Expanding the scope of the authorisation liability provisions of the Copyright Act
  • Making it easier for copyright owners to obtain injunctive relief to block overseas web sites hosting infringing material
  • Extending the operation of the “safe harbour” scheme.

These proposals attracted considerable controversy. In late 2014 the government adopted a modified approach with the announcement that ISPs and rightsholders had a period of 120 days to co-operate in the development of a Code of Conduct detailing how ISPs would deal with repeat infringing downloaders, to be registered with ACMA.

This is in accord with the government’s expressed preference for a “market based” solution to the issue. A mechanism will also be developed to facilitate the granting of injunctions requiring ISPs to block access to overseas websites that host infringing material, such as The Pirate Bay.

In the interviews I conducted, creators also acknowledged that in many cases, illegal downloads did not equate directly to lost sales. Illegal downloading may create new audiences and lead to sales of associated merchandise, touring revenue and the like, but those alternative income streams have their limits.

Some musicians are limited in their ability to tour, and successful tours are no guarantee) of financial success. Further, the copying of certain content, such as a photograph or a movie, can effectively destroy the value of that content. One veteran photojournalist reported 42,000 unauthorised uses of a single image, many for commercial purposes.

Most creators had also tried various alternative distribution models, such as making free songs available, providing additional or exclusive content or making content available for a period of time. Several had also adopted completely new approaches to their creative works. One author now deliberately produces shorter works, rather than one blockbuster every couple of years.

None of the creators were in favour of suing the end user, and most were against imposing obligations on the ISPs as mere conduits (although several high-profile musos have supported ISP liability). All were keen to highlight the need to educate consumers that infringement was not in fact a victimless act. The general consensus was that the government (or an independent body) should be invested with the power to investigate and prevent digital piracy.

Some music will not be made because creators cannot afford to make a living – Australian producer.

What became very clear from the interviews was that our Australian creative people are under financial pressure.

This is affecting their capacity to create. Many have to supplement their creative work, such as songwriting, with other jobs, such as teaching. While many joked that even if they didn’t receive any money they would still go on creating, those who had been in the industry longest made it clear that significant personal investment was required to do so.

The question we have to ask is, do we want to foster an Australian creative industry and provide a fair reward to those who work in the industry – or are we prepared to sacrifice our culture for cheap downloads?