Brett Cottle, Chief Executive, of APRA – Australasian Performing Right Association has written to Arts Hub in response to a recent paper Arts Hub published by Dr Terry Cutler. Dr Cutler’s paper had been presented to a recent symposium on 'Open Content Licensing (OCL): Cultivating the Creative Commons', exploring the latest developments for the future of distributing, developing and negotiating rights in digital content. The aim of Creative Commons is to make copyright content more ‘active’ by ensuring that content can be re-utilised with a minimum of transactional effort.

Dr. Cutler is Company Director of Cutler and Company Pty Ltd - and works in new media, digital content, and creative industries. His paper looked at public policy issues the project is bringing to the fore. He is also the Chairman of The Dramatic Group Pty Ltd.

To view Dr Culter’s paper on Arts Hub visit: Creative Commons

In his response Brett Cottle said:

While no doubt an interesting contribution to the debate about the balancing of access to, and protection of, intellectual capital in Australia, Terry Cutler’s reasoning is at times difficult to follow.

Dr Cutler argues that there is a ‘systemic failure in public policy across the whole domain of innovation, investment in creative capital, and intellectual property’. This is a statement sufficiently grandiose to suggest the need for a little evidence; where is it? If, as it seems to be, it’s a statement about Australian conditions, some international comparative analysis might be useful.

In any event there seems to be a fundamental contradiction in the assertion. Evidence of innovation and investment in creative capital is usually measured by things such as numbers of patent applications, the number of books published, films made, records released etc. But these measurements would pose a problem in Dr Cutler’s reasoning, because on the one hand they would be regarded as evidence of a healthy level of innovation and creative output, but…..as everybody knows, they are also the likely consequence of a relatively high level of intellectual property protection. Which of course is exactly what Dr Cutler seems to be arguing against.

In support of the idea that there exists this ‘systemic failure’, it is argued that intellectual property ‘matters’ (ie, policy) are ‘carved out’ from trade policy and competition policy. This is at best a questionable assertion.

IP policy internationally was expressly brought into the international Trade Policy framework with the development of TRIPS in the early 1990s and has, if anything, been centre-stage in trade policy ever since. Indeed, it was my impression that the very complaint of the IP iconoclasts during the AUSFTA negotiations was that too much attention was paid to IP issues in the trade context.

Insofar as competition policy is concerned, the simple fact is that copyright law, patent law and other IP laws are subject in Australia to the Trade Practices Act. Therefore, to the extent that, for example, collecting societies run the risk of contravening competition law they have to apply for authorisation like anybody else. Such a process involves an exhaustive analysis not only of the activity of the applicant collecting society, but more importantly, of all relevant public interest considerations.

More generally, the intellectual property/competition policy interface has, if anything, undergone an unusually large number of examinations, both in high-profile public debate (the parallel import issue) and in expert reports (the Ergas report) in recent years. Where is the carve out?

The second big assertion in Dr Cutler’s paper is the ‘abnegation of public policy leadership’ [in intellectual property management?]. Unlike the first point in Dr Cutler’s paper, this seems to be a statement directed against governments around the world, because the abnegation has apparently been in favour of institutions ranging from the BBC to IBM. Maybe it’s a statement that is so big that it just can’t be answered. Maybe we’d be better off with the BBC running IP policy…it’s hard to say.

What can be said, I think is that there is surely nothing inherently undesirable about non-Government IP licensing initatives, nor indeed anything inconsistent in such developments with a proper legislative role being taken by Government.

New IP licensing models don’t necessarily require new laws; indeed, it might reasonably be argued that the ‘market’s’ ability to formulate new licensing models under existing laws is evidence of the effectiveness and flexibility of those laws. IP laws do not force inventors or authors into particular licensing models; they simply provide a legal basis upon which such a creator may choose if and how to license.

Included in Dr Cutler’s third point of public policy failure in intellectual property matters, ie the Australian Government’s failure to properly administer public content and ‘IP assets’ is criticism of the Government’s lack of proper regulation of collection societies. Simon Lake has pointed out a few facts in that connection, to which I add the comment that some societies, including APRA, have obtained or applied for ACCC authorization, which I can assure Dr Cutler is a very real form of Government supervision.

Brett Cottle
Chief Executive, Australasian Performing Right Association