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We didn't burn the Australian film industry

Date

Editor-at-large, The Canberra Times

View more articles from Jack Waterford

Many people blame piracy for the overall decline in the music market.

Many people blame piracy for the overall decline in the music market.

I do not think that there is any advertisement that leaves me as unmoved as the one shown regularly in cinemas accusing people who watch pirate movies of burning up the Australian film industry. It is simply not very convincing, particularly in its apparent assumption that the consumer of a pirate movie (costing, say, $1 in Bali) might otherwise have paid $29.99 for it in some store in Sydney.

Likewise with pirate music, pirate software and perhaps pirate watches, clothing and Lego. It is taken for granted in the copyright industry that a sale in the pirate sector, with the money passing to some small entrepreneur, or perhaps to the Mafia, is at the cost of a sale to the "legitimate" industry that is responsible for the conception, origin and development of the intellectual property concerned. But a good many things that are attractive to buyers at some greatly discounted cost would not be at all attractive at the price the legitimate seller demands and, if pirate goods were not available, there would be simply no transaction at all. There's sometimes a hanging suggestion by those spruiking for copyright that innocent buyers are spending their money thinking they are buying the real thing, but my guess is that most purchasers know perfectly well that the $10 Rolex is not the real thing, that Chanel No.5 has not been discounted to a seller at the Aranda Markets, and that the revenue from the very cheap CD is not going to the already very rich musician to whose creative genius we owe it.

That does not necessarily make participating in such rip-offs OK, of course. Nor is it any more or less OK if one notes that the overwhelming proportion of all copyright and intellectual property rights are going to large transnational corporations, rather than starving or otherwise starving artists. The moral blameworthiness of stealing from Woolworths is no less than stealing from a little old lady.

That said, copyright and other rights in intellectual property are strange and evolving beasts, and one should not always respond to the greed of those who claim such rights, and want them ever extended at public expense. In normal circumstances, a dubious transaction with intellectual property should be at best a civil matter for misuse of property, not of theft, since the physical thing that the "owner" has is not usually touched. In any event, it does not seem to me that those who claim such property rights ought to have the capacity to unilaterally extend their rights, or that they should have state support for their power unless there is some sort of quid pro quo.

We used once, for example, to give patents to people who invented new things. This gave them an exclusive right to produce and sell the thing for a defined period. The public price of that right was that they had to disclose the idea, or the process for accomplishing it, so that when that exclusive period ended, others could enter into the marketplace – the free competition then, it was to be hoped, causing prices to fall. But the idea of the need for such a law occurred centuries ago, and the principles of how long an exclusive right ought to exist were devised long before modern capitalism, modern marketing, modern communications and technology.

It is by no means apparent that the period of a patent, or some other intellectual property right, ought to be the same as in 1600, or the same for a piece of computer software, or a life-saving drug, than for a stump-jump plough or a weaving machine. Generally, however, the rights of the owners of intellectual property have increased, not decreased, over time and so have the political power of the owners, most of which are now public corporations. The case that the having of such rights increases the amount of inventiveness, creative genius or the incentive to develop new products is poor at best. The greater proportion of drug companies, for example, spend far more on advertising than on research for new products, and a substantial proportion of seriously novel invention, idea or expression does not emerge from the capitalist incentive model.

Just as irritating is the fact that the most vociferous demanders of copyright protection are to be found in the United States, a nation whose massive expansion during the late 19th century was based on flagrant and unrewarded piracy of the intellectual property of nations of the Old World. At that stage of US economic development, the US had no patience at all for the rights of others. Once the US economy reached a critical mass, not least with the spur given by manufacturing for war, it became itself a great producer of ideas and inventions, and sharply changed its tune. A good deal of US diplomatic and trade activity consists of strong-arming agreeable old mates and sycophants, such as Australia, into adopting the ever-expanding claims of US intellectual property law or in threatening trade wars against countries, such as China (and once South Korea and Japan), they accuse of ripping the US off. Australia has no particular reason, in its own interest, to adopt American ideas about the need to reward genius, since we send much, much more money abroad for the right to rent the intellectual property of others than ever comes back for the rental of ours.

Ordinary consumers could be expected, quite reasonably, to be a good deal less punctilious about the possibility that someone's intellectual property was involved if they thought of the owner as some vast corporation with an active army of lawyers, lobbyists and compliant politicians doing their bidding. It is much better to pretend that the "battle" is about protecting the rights of starving artists in garrets, or local and culturally appropriate content. This is so tiny a fraction of the intellectual property industry that we could probably pay every person claiming to be in a creative industry $100,000 a year, abolish all intellectual property laws and still be in front.

One also, sometimes, is given the impression by some copyright claimants that one has not engaged in a property transaction with them. It may be, for example, that I cannot permit the public broadcast or theatrical showing of a DVD I have purchased. But I am perfectly free to lend it to my best friends, or 1000, provided that each is a casual transaction, 1000 in a row, in just the same manner that I can lend my books or my garden shovel to anyone I like. Likewise, I can sell the copy I have to another person, although I cannot, of course, license a use other than the one that has been permitted to me. Some people seem to think that buying a second-hand record or DVD is piracy. It is not, but one cannot rely on self-serving but apparently disinterested public notices and warnings to tell you. 

Fifty years ago, for example, there were many more musical works, mostly then records or tapes, sold than today in modern forms. In those days, there was no such thing as Australian performing rights for music, and popular songs were frequently played on radio without the artists concerned, or their transnational record companies, getting a penny for the airplay. But most artists were happy for the airplay because it appeared that the more one's output was played, the more likely one was to sell more records or tapes. That did not prevent artists collectivising, then demanding copyright payments from those such as radio stations but also restaurants and building sites, demanding money for "performing rights" – even when only a small and domestic supply of performers was divvying up the lot, including the efforts of overseas performers. These days many people in this industry blame internet or other piracy for the considerable decline in the total size of the music market, but a good many people say that the real problem is that the present output is not as popular, and much of it struggles much harder to find a market.

Likewise, the fortunes of cinemas have waxed and waned over the years, including the years of the development of television, the invention of the videotape and the DVD and, more recently, pay television and the capacity of punters to source movies or programs, legitimately or otherwise, from the internet. Cinemas have, of course, adapted in their own ways to such changes in the marketplace, including with the development of smaller and more intimate theatres in large complexes. Moreover, the number of movies made in Australia has, over the years, depended rather more on the tax treatment of film-making than it has on theatre patronage per se. 

I myself am too technically stupid to be a consumer of the sort of piracy of which the industry now complains so loudly. But one does not need to know what an iPod is, or what it does, to recognise specious arguments, however much subject to copyright.

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