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March 22 2014



Submission to the Attorney-General Senator the Hon. George Brandis QC and the Minister for Communications the Hon. Malcolm Turnbull MP on the future of Copyright in Australia.

This submission is from Mark Holden .

I am the sole proprietor of Dream Dealers Pty Ltd, a company registered in NSW since 1976, that has operated as an entertainment company primarily in the recording, publishing and management of Australian artists .

In November of 2009 I signed the Bar Roll of the Victorian Bar and have practiced as a barrister in the criminal, intellectual property, defamation, family violence, personal safety and welfare fraud areas in particular.

As a songwriter and artist I have been writing, recording and performing since the 1970’s and have had hits through the decades in my roles as a pop singer then as a songwriter, manager, producer and publisher of international hits including a song on the Motown Greatest Hits collection then as a record, production and publishing company launching artists like Vanessa Amorosi on the Australian and world stage.

My experience in these roles has given me a long view of intellectual property from a practical perspective.

As a young man to the present, one of the fundamental attractions of the Liberal Party in Australia has always been the role of reward for effort and the value given to the effort of individual labour in general and the value of the labour of creative Australians in particular.

Societies like Apra, Amcos and PPCA are evolving entities that play a valuable role in rewarding creators and are Opt-In options. Those who join share pro-rata of their approximated logged contribution in the funds received minus administration. They serve us well.

However, beyond performance on radio and traditional TV and some licensing the financial core of the business for the decades before the internet was the mechanical sales of the things - the ideas encased in a thing - a piece of vinyl - a petroleum product that was then driven to Bruny Island and Esperance for sale.

There was a physical thing and the public could be excluded from access to it except by agreement and purchase at a shop or by mail order or by licence through the media.

However, beyond performance on radio and traditional TV and some licensing the financial core of the business for the decades before the internet was the mechanical sales of the things - the ideas encased in a thing - a piece of vinyl - a petroleum product that was then driven to Bruny Island and Esperance for sale.

There was a physical thing and the public could be excluded from access to it except by agreement and purchase at a shop or by mail order or by licence through the media.

Its that very exclusion principle that defines property - a castle , a moat and an army to protect family property .

Over the years, Parliament and the Courts have evolved a statutory and common law right to exclude for intellectual property - a copyright.

Digital rights have been legislated in an attempt to evolve the law into the internet age but despite our best intentions the reality on the ground is that music and other digital data is free now despite the existence of laws of exclusion.

The right to exclude has been lost in the post internet context. 

The three strikes rule has been tried in France. Its cumbersome, time consuming , costly and adds yet another layer of red tape. It’s questionable whether years later now in France there has been any meaningful change in the amount of piracy. The boundless use of others’ creative effort for no reward continues unabated . The situation in France and elsewhere should be investigated thoroughly prior to committing to the path of litigation as the priority solution to deter piracy. Especially since its questionable if piracy is going to continue to be the core problem going forward.
Not all creators are created equal . Good on Goyte and 5 Seconds of Summer - there continues to be exceptional Australian creators that crack through to another level but there are many more co-writers and producers and engineers who dont tour and are not reaping the rewards given those who turn up and perform for folks night after night in towns across Australia and around the world. A producer used to get 3 points PPD on a record and it meant something . Offering a percentage to anyone to get involved in a record is a meaningless concept now - they aren’t worth anything at all.
We have lost the right because we have lost the capacity to exclude the world, its people, governments and machines, from accessing our property . Going after individuals is a lawyer’s picnic which is a huge disincentive for creators to take on. As lawyers we of all people know how expensive and stressful litigation can be. Also, how uncertain results can be and the possibility of costs being awarded should you lose. [ iiNet ]  This process will take years to resolve and cause a lot of grief.
If this were certain to stop piracy that would be one thing but the jury is out on that .

Should we do as France and NZ have done re three strikes - i.e. go on a minimum 5 year arc after which we may be able to decide whether its worked or not? Kick the ball down the road .

In my submission : the answer is no.

Meanwhile, creators continue to subsidise others’ business models. Our generation got used to music being free to the consumer on the radio and TV and this generation has got used to music being free in its digital form.

As fast or as slow as the law evolves the reality on the ground continues to be that the genie is out of the bottle and creators cannot exclude consumers and entities from accessing our ‘property‘.

In that case is it worth continuing to see creative effort through the lense of property that lasts for 70 years after the death of the creator ?

That monopoly privilege may still be appropriate for those areas where the creative idea is lodged in a thing - a picture, photograph, movie, CD but where the creative idea finds itself onto the internet that monopoly principle is meaningless.  The copyright has been lost .

What then is left ?

Apart from the residual existing copyright law and the society / licensing income the vast majority of uses of music and other creative digital effort is being used by the ISP’s as part of their commercial offering to consumers in Australia and around the world who regularly pay their broadband bills and pay their mobile bills. Those same people pay a toll when they use the Tullamarine freeway to the airport in Melbourne.
Kids who continuously consume data involving others’ creative efforts somehow get their mobiles paid for or their wi-fi from a free source at school, work or the coffee shop. But they dont pay for the creators’ work. There was an earlier version of this model known as the blank CD levy not so long ago.

Soon the NBN will be up and rocking and whole cities and towns will be enjoying free high quality wi-fi and yet so far the problem has just kept getting hand-balled , particularly under Labour , who, ironically, had a rock star in Cabinet.

Our end users’ data is mined and sold to companies and entities who want to know who is using our creative efforts and on-selling that information. Yet another new currency that creators dont share in.

There is a right that should be considered - a usufructuary right . The right for an individual to use and enjoy the property of another providing its substance is neither impaired nor altered. This is a recognition of the reality on the ground . It also preserves the concept of moral rights .

In return for giving up the right to exclude in the digital context creators should be rewarded by the end users exercising their usufructuary right. 

In France they call it a culture tax. In Italy the creative societies are calling for it.  Apra, Amcos and PPCA are also funded by a form of tax, levy, fee on users of creative effort. Call it a fee. As my father used to say - you can call me anything just dont call me late for dinner .

ISPs and mobile providers should be required by statute to build in a fee for creators rights to pay for their client’s usufructuary right which income is administered by a Society and distributed to its members.

In 1976 a 5% artist royalty on my platinum album with EMI earned me $30000 with which I bought my grandparents’ house in Prospect, South Australia . That house would now be worth around $5-600000 . Double that if my grandparents had lived in Melbourne or Sydney.

Meanwhile in 2014 my song Absolutely Everybody that was played at the Sydney Olympics and was a hit in 17 countries has been generating Spotify royalty statements since the inception of Spotify in Scandinavia.

Spotify is a great consumer product. Its user friendly. Its legal. What could be wrong ? If you are a share-holder, great, if you are a creator of the product they are selling, not so great.

I have calculated that my 50% share of Absolutely Everybody as a publisher and a writer earns .00015 cents per stream in Europe on Spotify.

If that is played 1,000,000 times the whole 50% share is worth $150. If I publish it at a 50% share with me the writer thats $75 for the publisher and $75 for the writer . The other effect of Spotify is that you never have to buy or own or download any album ever again - they are all there for freely streaming . Want to listen to an old Dylan album? They are all there on Spotify.

The point is there is already a legal solution now in streaming companies like Spotify. Piracy is fast becoming unnecessary for the consumer - they can get the legal product for free. The problem has already evolved technologically beyond litigation being a relevant tool such that it is no longer an issue of legality but one of equity. Reward for effort. The flow through payment on these legal businesses to the creators and investors in creators is so low its barely measurable and mostly doesnt cover the cost of accounting for it.
Great for shareholders, not great for creators.

In return for legislating that new usufructuary right a % of the income from data use is pooled in Opt-in entities for different fields and disciplines  distributing to their discreet members.

In my submission the 70 year after death of the creator monopoly in the Copyright Act is also outdated and should be reduced to 5 years after death to collect what was generated in the creator’s lifetime after which it should enter the public domain except that moral rights should not be limited.

A Picasso should always be a Picasso. 

In return for this quid pro quo and loss of the right to exclude in the internet context would be a meaningful creator fee, the culture tax.

I trust this government will be bold and visionary in this important area of our public life as Australians. Please don’t do nothing as Labour did and do address this problem from a practical work ethic perspective.

As my old publisher in New York used to say - its a nickel and dime business - the question is how many nickels and dimes ? 

Creators need to benefit from the use of their work from a range of sources that evolves as the uses evolve -  some income from traditional airplay through societies that evolve to cover internet radio, some from licensing through their publisher, some from residual sales income before that completely disappears and some from a new statute based income sourced from internet use via a pay as you go scheme described above .

If at some time in the future we can adequately watermark ideas and track them as data mining evolves there may be a need for another evolutionary reconstruction of the equation but in the meantime creators need to be rewarded now for the effort of their labour that is used now in digital form on the internet even if, at the same time, you green light the litigation experiment as a piracy deterrent policy albeit as downloading and other perceived piracy issues evolve out of existence.
 

                                         © HBTC 2014