April 11, 2014 | By Parker Higgins

Australian Attorney General Picks Surveillance Over Fair Use on U.S. Visit

"Australia is ready for, and needs, a fair use exception now." These were the unambiguous words of the Australian Law Reform Commission's report investigating how to modernize the country's copyright laws. Specifically, the Commission called for a fair use doctrine that resembles that of the U.S., with the same four-factor balancing test.

So then you might expect that when George Brandis, Australia's Attorney General, makes his first official trip to the United States—the one he concluded just days ago—he would take the opportunity to meet with American experts on fair use. They could discuss the areas where the law has proven flexible in accommodating unforeseen uses, how the balance between specificity and flexibility is continuously struck, and what he might hope to bring back to his home country.

You might be disappointed to learn, then, that despite the straightforwardness of the Commission's recommendation, Brandis has pointedly refused to explore the idea of fair use in Australia. Though he received the Commission's report in November, he waited until February to publish it—and even then, only alongside his own misguided proposal: that Australia should establish a three-strikes-style graduated response program.

Along those lines, instead of meeting with copyright scholars and fair use expert on this week's trip to Washington, DC, Brandis met with the executive director of the Center for Copyright Information—the organization behind the U.S. graduated response system known as "Six Strikes," or the Copyright Alert System.

In terms of evidence-based policy making, this is a failure. For one thing, he needn't come all the way to the U.S. to find out how graduated response programs work (or don't). Australian copyright scholar Rebecca Giblin has conducted an exhaustive study on the effect of these programs and found "remarkably little evidence" that they were effective in reducing infringement, increasing legitimate markets, or improving access to knowledge and culture.

But more broadly, the fact that the rest of Brandis's agenda consisted of meetings with senior officials at intelligence agencies like the NSA, FBI, and CIA, raises major red flags for user privacy. And indeed, politicians in Australia have recently re-introduced mandatory data retention proposals for Internet service providers, after similar proposals suffered defeat just last year. Perhaps unsurprisingly, these proposals have the backing of Attorney General Brandis, who has repeatedly defended NSA spying during parliamentary question time.

Brandis may consider increased surveillance to be a two-for-one special: take some visible action to look strong on national security and at the same time appease the legacy content industries that want to make Internet companies snoop on their users.

Australians should demand better. Reforms that would empower users, like fair use, merit serious consideration. An obsessive devotion to mass surveillance at home and abroad does not.


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