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Rethinking Parallel Importation

booksAs many of you would be aware, on Tuesday Australia’s Productivity Commission recommended lifting the existing restrictions upon the parallel importation of books into Australia. Those interested in reading the full text of the Report can find it on the Commission’s website, but essentially it makes three recommendations. Firstly that the existing restrictions on parallel importation be lifted after a three year period to allow the industry to prepare for the change. Secondly that the Government review the current subsidies aimed at encouraging Australian writing and publishing, with a view to better targeting of what are rather opaquely described as “cultural externalities”. And finally that the new regime be monitored and assessed five years after implementation.

There’s already been a lot of commentary on the recommendations, most of which falls into two fairly predictable camps. On one side Bob Carr and his mates at Dymocks and the Murdoch Press are characterizing it as a win for consumers and literacy. On the other, publishers, authors and most of Australia’s booksellers are appalled by the decision, describing it variously as cultural vandalism, economic rationalism gone mad and free-market lunacy.

I won’t point you to the articles in the papers, though if you’d like to get a sense of the anger and despair amongst writers it’s worth checking out Spike. Likewise Henry Rosenbloom at Scribe always makes perfect sense on this issue and is worth a look, as does Jeff Sparrow at Overland. Or for a rather different take, check out Michael Duffy or Crikey’s Bernard Keane.

For my part I’m in furious agreement with the ASA, the APA, the ABA and everybody else lined up against the Productivity Commission on this issue. If implemented the recommendations would be catastrophic for the Australian book industry and for our literary culture. But at the same time I do worry whether we – the writing and publishing community – aren’t getting this one wrong at some level.

For obvious reasons writers and publishers are trying to frame this as an issue about our capacity to sustain a literary and publishing culture in this country. If one wanted to be crude about it, what we’re really arguing for is a form of cultural nationalism. Certainly it’s no accident the writers who are being rallied to speak are all ones who are identifiably and iconically Australian.

This is the same argument we run every time changes to public policy threaten to make life harder for the already pretty marginal lives of Australian creators. And while I think it’s correct, I’m not sure it necessarily plays the way we think it does anymore, if only because appeals to Australian nationalism seem outdated in the global world of 2009. And – to be perfectly frank – demanding protection in a globalized economy is a bad, bad look.

Part of the problem is we’re being shoehorned into an argument about book prices. As people keep pointing out, it’s extremely difficult to compare book prices, and there’s some pretty selective data doing the rounds.

But this isn’t about book prices and it never was. It’s about Australia’s capacity to compete in a global knowledge economy, and, more importantly, the right of Australian creators to commercialize their work. Nor is it about open or protected markets. It’s about ensuring we have a policy framework in place which will foster creativity and maximize the benefit of that creativity to the Australian economy.

Let me explain. At present, when I finish a book I set about trying to sell it. Since the copyright belongs to me, I sell licenses to publishers to print the English-language version of the book. These licenses are geographically defined. In the best of all possible worlds I will sell the Australian and New Zealand rights to an Australian publisher, the UK and Eire rights to a UK publisher (these usually allow the UK publisher to distribute the English-language version of the book through Europe and a number of small countries like Bermuda and the Falkland Islands as well) and and the rights to sell the book in the US and various small countries like Guam to an American publisher. Canada will usually end up parcelled off with the US or the UK rights.

The license I grant my various publishers is exclusive. That means the American publisher can’t try and sell the book into Australia or the UK, and the British and Australian publishers are similarly precluded from trying to sell their editions into the other English language markets. This exclusivity is defined contractually, but is made possible by the copyright provisions of the relevant countries, which create frameworks within which the right of creators to dispose of their work as they see fit is enshrined.

The reason for this is obvious. Imagine I take my book to an Australian publisher and ask them if they’d like to publish it. They say they would, but then I tell them I’ve already sold the rights to an American and a British publisher, and because the restrictions on parallel importation have been lifted, those publishers are likely to be importing books into Australia as well. Odds are the Australian publisher would laugh in my face, but even if they didn’t, my capacity to commercialize my work has obviously been severely diminished.

As the example above demonstrates, the exclusivity created by territorial copyright (or, to describe it as the Productivity Commission does, the restriction on parallel importation) is not trivial, it’s the basis of the market. Without exclusivity the rights are, if not quite worthless, then certainly much less valuable. And, commensurately, the capacity of Australian creators to commercialize their work is severely constrained.

For a writer such as myself, who publishes overseas, the abolition of territorial copyright will mean I lose not only that portion of my income I derive from selling Australian rights, but that the economic benefit of my work will end up offshore, in the hands of a foreign publisher, as will the economic benefit of every single Australian writer with even the smallest amount of international success.

More importantly though, the example above demonstrates why this isn’t an argument about protectionism, despite all the talk about “opening markets”. Territorial copyright would only be protectionist if it didn’t exist elsewhere. But at present the only English language market which allows parallel importation is New Zealand, a country which is of such minimal importance that Australian writers routinely dispose of New Zealand rights in a job lot with our Australian rights. Abolishing it here won’t open our markets in any meaningful sense, all it will do is create a situation where American and British publishers have access to our markets without Australian publishers having access to theirs, which would be a bizarre outcome.

It would also decimate the local industry, which, like the British and American industries, derives much of its income from managing rights to books written elsewhere. Independent publishers would either go under, or shift their focus to publishing work with absolutely no international potential, while the larger multinationals would become little more than clearing houses for books written elsewhere.

One obvious response to the arguments above is to point to the coming revolution in publishing (something I’ve done myself from time to time). As national barriers fall, one might think, so too will seemingly outdated provisions such as territorial copyright. But as anyone who’s gazed longingly at a movie or TV episode for sale on the US iTunes Store knows to their cost, territoriality is alive and well in the digital world, and while that may change, it’s not going to happen soon.

I don’t want to waste my time engaging with the Commission’s risible suggestion that greater public assistance would produce better outcomes for Australian creators. I don’t want a handout and I don’t know any writer who does. But I do think it would be useful if we stopped talking about this issue as a contest between economic rationalism and cultural nationalism. Because for as long as we do we’re missing the real point, which is about the capacity of Australia and Australian creators to succeed in a global knowledge economy, and about ensuring we harmonize our policy settings with those of our major competitors overseas.


41 Comments Post a comment
  1. As an exporting publisher, I am in full agreement with your argument. It resonates with my submission regarding the problems to be faced in significant sectors of educational publishing.

    July 16, 2009
  2. Delia #

    I don’t see the people arguing for cheaper books suggesting the abolition of GST. That would make books 10% cheaper for a start (recalling that, for a moment, as the GST started up, GST-free books were a real possibility, until the Democrats under Meg Lees did the dirty). It seems that side of the argument is much more, as Richard Flanagan pointed out, about an infatuation with the god of the free market.

    July 16, 2009
  3. Kirsty Murray #

    Fantastic post. Thank you. Interesting that there has been so little discussion about South Asian territories and how both Britian and American copyright arrangements effectively keep books from moving between countries in the Southern Hemisphere and Asia unless they are distributed through the US or UK.

    July 16, 2009
  4. A fantastic response. Thanks for sharing.

    July 16, 2009
  5. I have an American agent shopping the rights to my book which is already out here in Aus/NZ. I am thankful that I put it out NOW rather than LATER, because who knows what will happen in the near to middle futures? I should email him and ask if this news is making any waves over there and what they think the ramifications will be…

    July 16, 2009
  6. Well argued! As someone who is published in several markets, the nett result of lifting parallel importation restrictions will be that I end up competing with myself – with a commensurate drop in income. I participated in the Productivity Commission’s workshops, and found it depressing as the arguments put forward by authors, publishers and even some booksellers were met with reluctant courtesy but not a chance of changing their minds.

    July 16, 2009
  7. Inspired post. I have been struggling to succinctly summarise my own viewpoint to others. But I’ve got it now. All it took was a little plagiarism *grin* I am just going to repeat your closing words: …the real point, which is about the capacity of Australia and Australian creators to succeed in a global knowledge economy, and about ensuring we harmonize our policy settings with those of our major competitors overseas.

    July 16, 2009
  8. I totally agree with what you are saying, but how do we convince the policitians of that when they are the ones that set this in motion?

    At the Productivity Commission’s Melbourne roundtable which I attended, and all the commissioners seemed interested in was taking disposable income from a thriving industry to redirect it to ones that weren’t doing so well.

    How do we get people to see the global ramifications of abolishing PIRs when the Productivity Commission, the Coalition for CB and certain media outlets are only interested in their own personal gain?

    July 16, 2009
  9. Thanks for such a well reasoned response. Like several others, I’ve been struggling to put into words my feelings on the issue. It was a pleasure to read your take. Please *please* send a copy of this to Mssrs. Rudd, Garret etc…

    July 16, 2009
  10. Jack Robertson #

    James, if you want to frame the debate this way usefully you need to be intellectually honest enough to examine in specific detail and against your own criteria – ‘which is about the capacity of Australia and Australian creators to succeed in a global knowledge economy’ – the subtle disparity between seling the ‘rights’ to publish a book and selling actual books (that is, knowledge) overseas. It’s sophistry – and I think catastrophic for any nation that really really wants to plug into that global info economy – to think that getting books on shelves overseas is enough; in itself, equates to getting our ideas in minds overseas.

    It’s a start…but it’s what happens next that really counts. And we all need to pay closer attention to that – if we are serious in the terms you advise. That’s really the guts of this debate, isn’t it: any remainders/unsold/surplus parallel imports coming back home to undercut local incomes don’t ‘just’ represent books not quite wanted in sufficient numbers overseas. They represent what’s in the books, too.

    A book on a shelf overseas isn’t knowledge plugged into the global economy of which you speak. The only way to be honest about this debate would be for publishers – and writers – to come clean about the relationship between the growth in rights trade under the PIR and actual sales (and I mean real sales). To me the slightly hysterical paranoia about ‘floods’ of overseas editions coming home is nothing so much as a glimpse of an industry deeply anxious about having sent too many books o/s that they reckon nobody wants.

    I’m too polite to ask you to come clean, but the danger in assuming that selling publishing rights is equivalent to selling books/ideas is that Australian writing may actually become ghettoized in the knowledge economy. And delude ourselves into thinking exactly the opposite.

    Thanks for the space.

    July 16, 2009
    • Thanks for that, Jack. If I understand you correctly, you’re saying there’s a difference between selling a book and actually disseminating an idea, and that the remaindering of books represents a failure to achieve the latter. As far as it goes, that’s true, but it’s equally true that putting a book on a shelf is indubitably a more effective way of disseminating an idea than creating a situation in which that a book never finds its way onto a shelf. And remainders represent a failure by publishers to predict the market for their product or properly market their product, which may or may not be a reflection of the quality of the book in question.
      And while the question of how Australian writers perform overseas is an interesting one, it’s not the core issue in this debate, nor are sales necessarily the only metric of success. The real issue is about whether we want to make it actively more difficult for Australians to commercialize their creativity here in Australia, because if we do, we create a situation in which our culture of innovation (and I think writing and ideas are part of that culture of innovation) will struggle even more than it does at the moment. As you say, selling rights isn’t the same as plugging into the global knowledge economy, but having a vibrant culture of ideas within Australia most definitely is a necessary condition for plugging into that economy, and an important precursor to developing and nurturing writers and ideas which will travel.

      July 16, 2009
  11. Jack Robertson #

    I agree that focusing on the commercialization of creativity here is the real nub, whether we’re talking about (shorthand here) serious lit, cutting edge non-fiction, genre, kids’ books, whatever. But it’s precisely here where I think we are shooting ourselves in the foot with PIR’s. I think it’s a terrible error of strategic misconception to think that creative/writerly vibrancy – at individual or collective level – is nurtured over the long haul by any imposed industrial landscape that weakens a creator’s imperative – right from the start of their craft apprenticeship – to write to/into/for, or at least with a (paying, sustaining) audience in mind. I’ve beheld the chorus of approval from industry about the way PIR’s help engineer a defacto subsidy-that’s-not-called-a-subsidy of Australian writers/publishers by bankable overseas writers with fascinated horror. Surely the worst possible way to inculcate a writerly culture that places the viable commercialization of its own creativity at its centre is…to give itself a license to piggy-back on ‘real’ (viable) writers from overseas while it’s supposedly figuring out how to do so itself?

    It’s like expecting to learn how to ride a bike without training wheels…without ever taking your training wheels off.

    You’re right, this is not exactly about equating ‘good’ with ‘commercially viable’ writing – not quite. Not at all. Some of my Oz faves struggle to shift a few thousand of each new work, I have no doubt. I’ll always be happy to directly fund writers of high-calibre, low-appeal, as a public good (and happy to accept the need for a kind of vocational Lit World cadre to make the practical merit-judgment calls). We can also do a lot of other things we aren’t – no income tax on advances/royalties, say – before clutching for PIR’s.

    Because apart from whatever prop for our industry they give us, what else do we get? We get (a small number of) Indy Oz houses/local authors plugging into the international rights dealing game, maybe even a few viable o/s careers launched…but how many more Oz writers – yet to quite learn how to commercialize their creativity securely even at home – get premature o/s deals on the back of PIR-derived rights horse-trading, rather than realistic hopes of their book getting serious o/s traction? Already far too many new writers get destroyed at home by premature or over-ambitious ‘short-termist’ publishing. God knows what sort of long-term damage 20,000 unsold copies of your highly-spruiked (to get the rights deal) first novel plonked in a US warehouse does to your long-term prospects for commercializing your creativity.

    You do sometimes get the deeply unsettling feeling, reading a PC submission such as Mike Heyward’s first one or listening to a Louise Adler riff, that…well, in these sexy days of global rights trading, hype-cycles, industry ‘profile’ and ‘presence’ and ‘churn’ and blah, all these people who love to talk about publishing in capital C cultural terms…that actual books and writing, much less hitting readership spots with them, are rather outre. And that maybe all the slightly-hysterically enthusiastic assurances that we are plugging into the global lit-knowledge economy on level terms at last may just be a wishfully-thunk placebo for actually having done so.

    It’s also useful to think about the developmental provenance of successfully commercialized contemporary Oz writers of many various kinds, not just the usual suspect Winton/Grenville/Carey Oz Lit marquee names in this debate. What role did PIR’s play in the apprenticeship days of a Matt Reilly (self-publishing start), a John Birmingham (freelance pen-for-hire turned schlockbuster brand), the dazzlingly-global Nam Le (ex lawyer, Harvard Fiction Review ed, Iowa Writer’s alumni)…and what would have happened if we’d lobbed a bunch of subsidising cash their way at a lean, formative time?

    Mind you, James, as a fifteen year recidivist spak who can’t even remember what the f**k possessed his younger self of the delusion that setting out to make a living from story-telling might be a fine old jaunt, I of course claim authority on nuthin’ but what don’t work.

    Cheers again.

    July 17, 2009
    • Jack – I think we’re actually largely in agreement, though I’m a little bemused by your notion that direct subsidies are a better way to nurture talent than a viable local industry. But I do think you’re missing my central point, which is that it’s wrong to talk about this as a question of protected markets or a back-door way of subsidizing Australian writing and ideas. It isn’t, and every time we do we’re shooting ourselves in the foot.

      So let me put it very simply. As an Australian creator I want the same rights to commercialize my work as a British or American writer. The changes recommended by the Productivity Commission mean I will have less capacity to commercialize my work than a British or American writer. Whether it leads to cheaper books or not that is unfair and wrongheaded, not just culturally but economically.

      July 17, 2009
      • Sorry – one more thing. Territorial copyright isn’t an “imposed industrial landscape”. It’s an international system, common to almost all countries (including the US and Great Britain) designed to create an environment within which creators can commercialize their work. It exists to ensure rights granted within those countries are protected by the copyright laws of those countries by preventing those not subject to the copyright laws of those countries (such as foreign publishers) from violating copyright exercised under local laws by importing books printed elsewhere.

        July 17, 2009
  12. Delia #

    As a big book buyer myself I’m a bit bemused by the idea that our books are all that expensive — they might be dearer compared to some overseas books, but they don’t seem particularly dear in terms of value for money compared to, say, a CD or the more ephemeral pleasure of a meal out at a restaurant. The question is more one of “perceived value”. I do wonder about the rhetoric that’s been used to justify these findings — was there truly a “demand” among readers for cheaper books before the idea was raised, or has that demand been retrospectively created?

    I fear I may have this wrong, but didn’t the Howard first start to talk about the possibility of deregulating our culture industry during free trade talks several years ago with the US — and didn’t they volunteer this, without any prompting or pressure from the US, who were only interested in pharmaceuticals etc …?

    It’s inspiring to see Japan’s very different approach to its own culture as a potential economic good recently: the government is promoting “soft” culture — eg manga — as a huge part of Japan’s post-industrial future:

    http://www.guardian.co.uk/world/2009/apr/10/japan-manga-anime-recession

    July 17, 2009
  13. Jack Robertson #

    James, we will have to agree to disagree. But territorial ‘copyright’ IS an imposed industrial landscape. It is a state of industrial affairs underpinned by (at least) contentious domestic trade legislation that benefits some – but only some – of the participants in the domestic industry, and arguably hurts consumers. It’s also redundant legislation, because if you and your publishers want to arrange your contractual affairs to achieve exactly the same ‘commercialization of your creativity’ outcomes, you can still do so with or without the PIR provisions. You might have to work harder in contractual stages and also, your publishers may have to spend more on policing their own arrangements. But you do not need to have territorial provisions in our copyright act to defend territorial exclusivity. Perhaps what’s getting up (some sectors of) the industry’s nose is the suggestion – as Michael Wilding, hardly a philistine anti-literature typem amkes again today – that just maybe it should be up to publishers and writers, not governments, to re-appraise and rejuvenate their business models in order to maximize/safeguard the capacity of writers to commercialize their creativity, not governments.

    One last thing, James: the vast majority of Australian writers will never see either an overseas edition of their works or any ‘trickle down’ editorial/nurturing for their career that PIR’s allegedly underpin. Most writers who do find an overseas publisher will do so whether or not PIR’s exist, ie on the strength of home sales, not the (rather recent) local explosion in the ‘rights trade’ . But most won’t at all. That’s no different to the US or the UK or anywhere else. So the ‘international rights trade’ game is a pretty small – but very loud – part of any writer’s likely capacity to commercialize their creativity. And it will diminish as the digitalisation of your words takes hold. Right now, territorial ‘copyright’ on digital copies mirrors hard copy, but that’s pure momentum.

    And even in the (small) ‘high lit’ field, again as Wilding points out, all the stuff that’s been cited as the great justifying raison d’etre of PIR’s – money invested in local Indy houses, in editing, in career ‘slow burn’ breathing space, proper publisher/author relationships – has actually mostly been shed by the industry by…well, the rapidly diminishing margins in hard copy books generally. Best regards, and thanks again for the space.

    July 17, 2009
  14. savingaussiebooks #

    Thanks for your post, Bradley. You’ve spoken clearly and concisely about this threat to the Australian publishing industry.

    As you conclude, all that is asked is that authors have the same rights to commercialise their work as a British or American writer. The Productivity Commission is willing for this right to be taken away.

    It won’t be a level playing field if this happens because, as you point out, the US and the UK will keep their Territorial Copyright, leaving our book market open for pillage.

    Many Australians are only informed about this issue by the mainstream media. They do not know the ramifications hidden by the deceit of the ‘cheaper books’ chorus line.

    ‘Saving Aussie Books’ is the blogsite set up by a group of concerned bookloving Australians from all walks of life. We want to inform people (not just those involved in the publishing industry) about the issue and also provide contacts and links so Australians who care about books can do something about it – write letters to editors, lobby politicians etc.
    http://savingaussiebooks.wordpress.com

    July 17, 2009
  15. Jack Robertson #

    Delia, FWIW, even as a strong supporter of these changes I do tend to agree with you that the ‘poor consumer’ angle has been milked rather shamelessly by the likes of Dymock’s and Bob Carr. I don’t really think downstream purchase price alone is the key argument here. I was willing to shell out $160 retail – that’s over a week’s rent for me – on the Miles Franklin short list alone, for example, and even though I grumbled (lousy value for money, frankly!), that’s the kind of ‘cultural loading’ I’d be happy to shoulder if it meant an efficient way of making Oz writing ‘commercialisable’ in the way James is a focusing. The trouble is that it doesn’t. Hard copies books. Much of the local price ‘loading’ goes overseas, via the big houses anyway; the only writers to benefit from PIR’s are the tiny few with o/s editions; for all the talk of nurturing the local voice, the local industry tends to discard the bulk of ‘new’ – ie Next Big Thing – Oz writers if they fail to strike first, or maybe second time, around. Oz Lit since 1991 is littered with one or two-off novelists whose books went SPLASH!, FIZZZzzzzzlee…and are now long gone out of print. I think where I diverge from James’ s views on the worth of PIR’s as a (short-term/kickstart/additional) mechanism for creative commercialization is in its inherently skewed distribution of benefits as far as even local writers go. It’s the old ‘link grants to sales’ Catch-22: the ones who benefit most (ie who have o/s deals) need it the least.

    I am fan of direct Lit Board grant, and such mechanistic things the Irish tax breaks on income. Certainly the GST should go. I think that the pro-Oz Lit lobby would do far better shackling its power to an unapologetic campaign to promote direct public backing as a shared national virtue, like the Europeans: a swaggering, confident, gleeful, damned-straight-got-a-problem-with-that-you-heathens public good, while also naming-and-shaming rich Aussies into a more US depth of philanthropic indulgence.

    This sort-of, hidden subsidy, quasi-‘going concern’ amalgam is both inefficient and – frankly – feeding into the age old Australian curse of anti-intellectualism. How odd it is to hear marginal writers and arts sector workers bemoaning at the chance of more public dough!

    (BTW: pardon this shameless simpering ass-kiss, but ‘Soldiers’ is stunning and virtuosic and exquisite. I say that not merely, or even mostly, as a thoroughly precious wannabe who thinks spending a mere day on a single sentence is practically reckless haste (though that too); but as an ex soldier who found your thematic empathy scarifying and your interiorizing dexterity thrillingly uncanny. Good luck with the next one, it will be worth the wait however long it is. Wait tables nights if you have to, hey.)

    July 17, 2009
  16. Anyone wanting a clear explanation of the issues could do a lot worse than read this excellent summary at Aussie Reviews:

    http://aussiereviews.blogspot.com/2009/07/laymans-guide-to-cheaper-books-debate.html

    July 17, 2009
  17. savingaussiebooks #

    And if anyone would like to do something about practical these issues go to http://savingaussiebooks.wordpress.com/
    Sally Murphy’s excellent guide has a permanent page there as well.

    July 17, 2009
  18. Kim #

    Books in Australia are simply too expensive. The simple fact that it’s almost always cheaper to buy from a US seller and have the books air freighted in is scandalous.

    I have yet to see a single argument against parallel importation that properly takes buyers of books into account. Generally, the arguments against it either claim that it won’t reduce book prices, or they discount it out of hand, like you’ve done. The first argument is demonstrably wrong, and the second ignores the needs of book buyers, and without the buyers, your precious industry wouldn’t exist.

    Make no mistake, Australia is becoming a nation of people who simply don’t read books. The exorbitant price of books here is a contributor to this. By pursuing this selfish protectionist agenda, a bloated inefficient industry is causing damage to Australia’s culture buy dumbing down our population.

    As for the local industry being ‘decimated’, first, I doubt it would be, and second, I don’t care if it is. Not a whit. In fact, after the selfish squealing from the industry at the productivity commissions findings, I’m almost starting to hope that the industry IS decimated. If you’re too lazy and bloated to compete with the rest of the world in publishing, then tough. Go and get another job. Good Australian authors will sign with other publishers. It won’t be the end of writing any more than the lifting of parallel importation restrictions on recordings was the end of music.

    Industries that need to be mollycoddled simply aren’t worth having. There’s an economic term for the kind of behaviour engaged in by the Australian publishing industry. It’s known as ‘rent seeking’.

    The industry campaign against parallel importation reeks of scaremongering, poorly concealed selfishness, and arrogance.

    July 19, 2009
    • Kim – I’ll try not to be too offended by your description of me as lazy and bloated (I know I’ve put on weight recently, but surely “bloated” is a bit strong), and I’m sorry if you think I’m refusing to engage with the issue of book prices. Since I’m planning to post properly about some of these questions later this week I don’t want to get too far into the argument about prices, but what I would say now is that the data on book prices from both sides is complex and often misleading, and that the examples usually cited, which compare Amazon or Book Depository prices with full ticket RRP here in Australia, are particularly misleading and say as much about the business models of Australian retailers as they do about the issue of territorial copyright.

      If there is rentseeking going on here, I suspect it’s by the big retailers. Rather than compete with overseas sellers, all of whom abide by the territorial copyright rules of their home territories, they want Australian authors and publishers to subsidize their profits.

      Let me say that again in a slightly different way. At present in Australia we have territorial copyright laws. Substantially the same laws operate in the US and the UK. Amazon and Book Depository therefore operate within a regulatory framework that is essentially the same as our own. They cannot engage in parallel importation any more than an Australian retailer can. Yet if one accepts they actually do sell books cheaper than you can get them here (and as I say, I think that’s nowhere near as clear cut a question as people pretend it is (in this context you might want to read Michael James, in Crikey! http://www.crikey.com.au/2009/07/16/parallel-importation-devilish-dymocks-detail/ ) then that means they’re doing something Australian retailers aren’t. It took Amazon years to make a profit, maybe Dymocks should think about losing some money to establish a good online discount book retail business here. But instead they’re asking Australian authors and publishers to give up their property (and that’s what copyright is, property) in order to prop up their bottom lines.

      All of which brings me back to my original point. By talking about protection the industry is doing itself a disservice, not least because we’re not asking to be protected. All we’re asking is to be allowed to compete on an even footing with our major competitors overseas, all of whom enjoy the protection of territorial copyright. Copyright is property, we create it, just as someone who carves a boat out of wood or a company that invents a drug owns the fruit of their labour. Allowing parallel importation of books severely restricts the capacity of Australian authors and publishers to earn a living by commercializing that property. No-one would think it was reasonable if the government unilaterally wiped away the capacity of manufacturers to sell their product, or told drug companies they would no longer enjoy the protection of patents. Why is it okay when the Productivity Commission recommends doing the same thing to writers and publishers?

      July 19, 2009
      • Kim #

        James… thanks for the reply. As you can tell, I’m not a writer by trade, and I’ll admit I’m a pretty bad amateur writer. The ‘you’ in lazy and bloated was referring to ‘the industry’… not you in particular.

        July 19, 2009
    • westword #

      Kim, where do you get your “fact” that Australia is becoming a nation of people who don’t read? Because even Dymocks, via their mouthpiece Carr, admits that booksales have actually improved during the recent financial downturn. People will always buy books—if not for themselves, then for their children—as has been demonstrated time and time again over the years. (The children’s wing of the publishing industry saw it through the recession of the late 80s…) Your dismissive air about the likely damage done to the local publishing industry suggests that you may not value Australian books, but many people do. And children in particular need a thriving local publishing industry of Australian stories in Australian English, not edited versions with Australian references and language excised.

      July 23, 2009
      • “And children in particular need a thriving local publishing industry of Australian stories in Australian English, not edited versions with Australian references and language excised.”

        Why? I think this idea that Australian literature is somehow more valuable is bunk, that we need to be taught “Australian culture” whatever that is implies an underlying racism.

        Migrant families won’t care whether or not their stories have kangaroos in them or not. I certainly don’t need to read things that reflect Australian culture and to paint all Australian writers with the same brush is problematic. We’re not all the same just because we happened to write our books within the same borders.

        July 24, 2009
      • Kim #

        And your dismissive air about the likely damage done to the reading habits of Australians by PIRs suggests that you don’t value literacy at all.

        See… two can play at that game.

        Books are made more expensive by PIRs than otherwise. This causes people to buy less of them. Your assertion that ‘people will always buy books’ is meaningless. The number of books people buy, and how often they buy them, is dependant on a number of variables, of which price is one. The high price of books in this country (and yes, the price of books here is high) causes people to buy less of them. Anyone who believes otherwise is quite simply economically illiterate.

        You also speak as though I’m the one who needs to prove some case. But the status quo is only maintained through protectionist coercive laws that make it illegal for books to be traded freely. I am simply advocating more freedom; something that the socialist intelligentsia despise.

        I couldn’t care less about a ‘thriving local publishing industry of Australian stories in Australian English’. I only care about good authors being published, and I don’t really care where they’re from. If an author is good, they will find a publisher, irrespective of PIRs.

        As for those who do value Australian literature for the sake of its Australian-ness, goody for them. They can go and buy some, and the proceeds will go to the author. No protectionism needed.

        July 29, 2009
      • Kim #

        Sorry westword, I didn’t answer your primary question.

        My assertion was simply from my observations. I have nothing to back it up.

        However, I think it can be generally argued that having the general public read more is a GOOD thing, and I believe that PIRs work strongly against that.

        Honestly, $30 for paperback (as is often charged in this country) is too much for many people. They see computer games, music, or movies as being better value.

        July 29, 2009
  19. Kim – there’s no need to apologize, I was just teasing.

    July 19, 2009
  20. Simon H #

    Hi James,

    Looking at this issue as someone who has nothing to do with writing/selling/publishing books, and as a lawyer, the issue that occurred to me is the same one that (I think) occurred to Jack Robertson, i.e. “if you and your publishers want to arrange your contractual affairs to achieve exactly the same ‘commercialization of your creativity’ outcomes, you can still do so with or without the PIR provisions. You might have to work harder in contractual stages and also, your publishers may have to spend more on policing their own arrangements.”

    Without having read the Productivity Commission report that might cover the issue, I don’t understand why, if you’re selling territorial copyright, you don’t sign a contract that says, “this is only territory X’s copyright and you’ll be committing a mother of a breach of this contract if any of territory X’s books get sold anywhere else”. Is it that books are so much cheaper o/s that it can be in some wholesalers’ interests to buy retail o/s and then export to Australia and flog? Is it one of those weird cultural things where demanding conditions like this in a contract would be regarded by those in the industry as ‘just not cricket, old boy’? Or is the industry so filled with shysters that no-one has any confidence that any publisher will comply with their contractual obligations?

    Put very simply: they are, at root, your rights to sell. Worldwide. So if writers don’t want to compete against themselves, why would they sign deals that mean they compete against themselves?

    July 20, 2009
  21. Michael #

    James,

    Couldn’t have put it better. I hate the fact that whenever commercially successful writers put their head above the parapet to argue against the abolition of PIR, they are attacked as being rich elitists trying to protect their incomes. Bollocks!
    This is about protecting Australia’s cultural and artistic future – the new writers with great Australian stories who may never find a publisher if we don’t support local publishers and independent booksellers.
    Shame on Murdoch and his minions at THE AUSTRALIAN.

    July 20, 2009
  22. Jack Robertson #

    Yes, exactly, Simon H…or, to look at it from the other angle, James, by your own admission many writers often already voluntarily ‘severely restrict’ their capacity to commercialize their creativity by way of ‘territorial copyright’ [sic] ‘abolition’: you say Canada is routinely surrendered as an individual ‘territory’ by way of….well, signing a ‘standard’ contract that bundles its territorial copyright [sic] in with the US. ANZ rights. The UK & Eire – that’s four separate countries’ ‘territorial copyright’ you are piling in together…all these ‘bundles’ are done by contract, and what you get – or have to cop to get any deal at all – is, as in every contractual negotiation ever signed, a function only of what’s on the table (except where, as here, the industrial landscape is artificially skewed).

    I bet Dan Brown will not be receiving ‘international’ royalties on the The Lost Symbol units he shifts down here in the coming years, for example.

    Contracts. They are what underpin your income. You’re wrong about copyright being a ‘property’ you ‘create’, by the way. It’s an international right underpinned by inviolable treaty. Domestic governments have a role to play, framing domestic policy that gives it local expression, but they cannot slice-and-dice the basic universal entity that gives that local legislation its oomph. Nor can they ‘enhance’ or ‘bolster’ it in any way, which is what claims that ‘territorial copyright’ [sic] is about to be ‘abolished’ implies local publishers and writers think PIR’s achieve.

    Neither, for that matter, can publishers either ‘diminish’ or ‘enhance’ your natural copyright entitlements.

    Only you can, by contract. You own it, and you can certainly trade it (and in it) – sell, license, split across geographical (or genre, or medium, or linguistic, or mode of delivery) markets by contractual rider, donate to charity, leave to your estate, add someone else’s to your copyright-portfolio (a la Jacko and The Beatles) – but the closest mercantile analogy is to neither a good or a service, but a concession: a pub license, a toll-collector’s warrant (except that it’s automatically granted and within no-one’s power to revoke).

    Copyright is a universal human right: your ‘right’ to collect money earned from your own IP. Your concession to set up a toll on certain words: yours (and any others to which you’re contractually entitled). How you set up the mercantile mechanism to actually commercialize that (mere) abstract right to do so is your business, and it’s business done by contract. You can sign a workplace agreement, like (some?) tenured journo’s and commercial writers and copywriters and textbook drudges and technical hacks, handing all copyright to your employer as the words flow.

    For authors, you go for individual contracts every time, usually. That should theoretically give you more negotiating power, the better your product on the table is. And less, the weaker, obviously.

    But at the moment, publishers have got you writers duped into thinking that the network of trade barriers which outrageously favor their industrial power and disposition (at your cost, by diminishing your individual contractual heft and flexibility through such entrenched fait-accomplis as ‘standard’ contracts and ‘international royalties) are in your interests too…all because they call it the system of ‘territorial copyright’ [sic].

    It’s just a semantic con, James. No-one has either the right or the legal power to unilaterally segment – disperse – your most powerful bargaining weapon: your copyright. As Simon H says it’s universal and indivisible..until you sign a contract – ‘standard’ or otherwise – rendering it not so.

    The only question to ask yourself is the age-old cost/benefit calculus one in all haggling and horse-trading over contractual terms. PIR’s are a red herring, a distraction, and, especially, a monopolising-entrencher of the grim writer-publisher asymmetries. Why on earth any writer – or Indy publisher, either – in this thrillingly-liberating digital self-publishing era would have a bar of going to the barricades to maintain them escapes me. I’m not advocating a world in which every writer self-publishes and distributes, btw.

    I’m simply pointing out that the fact that we all now CAN strips – ought to strip, will inevitably strip (unless they manage to keep us in the industrial strait-jackets that currently favor them, that is) – publishers of much of their industrial hegemony, especially the big conglomerate bastards who drive and shape the entire industry, invariably – heart-breakingly – against the vocational idealism and ulcer-inducing lifelong efforts of inspiring, committed men of letters exactly like Mike Heyward and Henry Rosenbloom.

    Writers and Indy dudes in the pro-PIR camp are all fighting for exactly the wrong side, exactly against their own interests.

    July 20, 2009
  23. Jack – three things.

    First – copyright is something I own, that can be bought and sold. That’s why they call it intellectual property.

    Second – you’re right in suggesting technological change is going to fundamentally reshape publishing in the near future. But nothing in what you’ve said refutes my central point, which is that there is something unfair about a situation in which I am less able to exploit and commercialize my work in Australia than I am in Britain or the UK. All your rhetoric about the wickedness of the current system (a system most writers want to see maintained, just btw) is just that until you have a positive argument about why Australian authors and publishers should enjoy less rights than their overseas counterparts.

    And third – suggesting Henry Rosenbloom and Michael Heyward, publishers with years of experience negotiating rights deals and building quality publishing operations are victims of false consciousness is just absurd. They’re in this fight because they know what it means for them and for Australian writing more generally.

    Simon – the question of contracting rights is a complex one. Yes, in theory I could probably try and convince my overseas publishers to agree not to sell into Australia, but as someone who’s spent a lot of years dealing with British publishers I doubt I’d succeed. Authors don’t tend to have a lot of push in these situations unless they’re seriously big-sellers (which most of us aren’t). And it wouldn’t do anything to affect the problem for publishers here, since they’d never be able to buy rights with full confidence a deal wouldn’t get struck elsewhere sometime later without such a clause in it.

    July 20, 2009
  24. Jack Robertson #

    Jams – four things.

    First – sure. As I agreed. But you don’t ‘create’ copyright. You create words. Copyright over them is created by inviolable international treaty. Its industrial fact has got nothing to do with your labors, government legislation, or publisher largesse. This matters because those in your camp are clearly of the view, one I think wrong, that ‘territorial copyright’ is a rights-component of ‘copyright’ that is similarly ‘created’ by PIR’s. We will have to disagree on this.

    Second – if you want positive arguments for the abolition of PIR’s, mine abound: here, on threads at Crikey, at Claws. You could also read my PC submission, number DR432. It’s a bit rude, a little dated, too. When you ask why: “…Australian authors and publishers should enjoy less rights than their overseas counterparts” I recognise, again, that we are going to have to politely disagree (as above) , but when you write, to Simon H, of o/s contract-derived retail exclusion from Oz: “And it wouldn’t do anything to affect the problem for publishers here, since they’d never be able to buy rights with full confidence a deal wouldn’t get struck elsewhere sometime later without such a clause in it”, I simply suggest – as I have already done at Claws and Crikey – that Australian publishing put riders on their local contracts, too, requiring writers to insist on a ‘not for retail import/sale in Australia’ on any subsequent o/s contracts on the same material. I won’t outline here why I think this would be an eminently feasible and vastly more efficient and equatable mechanism for achieving for Oz publishing and writers what PIR’s so sloppily do now, with so many other downsides – we are discussing it in detail on the Claws thread if you are interested.

    But it’s your ‘copyright’. You can frame contracts to achieve whatever you want, or can. Your negotiating heft derives from the heft of your product. When writers peel off a stock phrase like “the question of contracting rights is a complex one’, two thing occur to me. The first is to frown impatiently and mutter: ‘No, it’s not, James. Not really. You either sign a contract or you don’t.” The second is – just talking rhetoric – to wonder why this very good writer is suddenly blowing very ordinary chaff.

    Third – I am well aware of Mike’s and Henry’s fine legacies. My admiration for them knows no earthly bounds. It was probably rude – and certainly blowsy rhetoric – to use words like ‘con’, but there’s altogether too much hollow fawning and platitudinous banality from the players in Oz Lit as it is, for nobodies like me to think we have any place or point adding to it. But sure, fair point on the ‘absurd’ hyperbole: I guess it’s not so much false consciousness I think they and et al are afflicted by: more the slightly/temporarily out-of-perspective fixation that arises from a long lifetime of tenaciously and honorably fighting the same defensive battle over and over again (when it was crucial), until one day you mount the barricades on exhausted auto-pilot, not quite realising that to the left and right of your legendary redoubt, there are no barricades remaining, and – what’s more – your defensive line is no longer a last stand at all, but the launching pad for a war-winning counter-attack. And former comrades-in-arms are five miles yonder into the enemy’s territory already. Alright, so that metaphor’s flogged dead…I just think it’s a terrible strategic error to be fixating on PIR’s at this happy moment in writerly history, is all I think. The last thing anyone should want is to migrate the current system of ‘territorial copyright’ into digi-cyberspace.

    Imagine a landscape in which you leverage your copyright to ‘target’ your paying market with PR & marketing precision at last?

    Four – James, I know I’m not a very likable person in these long threads I have an occasional habit of hijacking. My laborious mode and style is not something I can do much about, or really want to. Arguing this debate as a failed and failing writer is of course a bit like climbing nude into the ring with Mike Tyson. Easy enough to take cheap shots of the kind I’ve worn elsewhere, so thank you v. much for not offering any. Thank you also for the space and patience. We will have to disagree, I think. I may well be (more) wrong, and you may be (more) right, but I think this is the critical Ozlit debate of the hour, and if I don’t see it that way I feel the need to say as much. Good luck with your proper work.

    July 21, 2009
  25. Interesting piece.

    I certainly agree with you regarding people arguing for cultural nationalism. It’s a bad look and if people are going to be clear about this, we need to move away from these kinds of arguments.

    Australian publishing is no better or worse for its ‘cultural value’ and I hope people wouldn’t just buy a book because it’s local. There are many Australian writers I would not buy, and there are many foreign writers I love.

    I’m still formulating my ideas about this but am hostile to any campaign that aligns itself with nationalist arguments because I’m a writer of the world, not an Australian writer and you won’t see me flying our flag.

    July 21, 2009
  26. It’s very simple James. Your books are at least $5 more expensive in the Australian market than the US or UK. Australian publishers and authors are trying in vain to pretend that globalisation is not impacting the local market, or that the book industry is somehow ‘richer and more vibrant’ with less overall unit sales. It is no random statistic that Australian book industry growth overall is about 2-3% yet the discount department stores who already dominate the market are experiencing well over 10% growth in one case I am reliably told over 30%. Given your book is not in the discount department stores that means that sales of books like yours are declining in the Australian bookstores, which means you are dependent on the Amazons and Book Depositories of the world to make up the difference. Authors/Publishers/Productivity Commission can argue about who’s getting the extra $5 but I doubt it’s actually going to you, once it’s all sliced and diced in a global context.

    July 21, 2009
  27. Benjamin – I think you’ve misunderstood me. I wasn’t arguing that there wasn’t a solid cultural argument for the current system, just that in this context we’re making a mistake if we think that argument will carry the day. Part of the problem is – as you recognize – that globalization has made people less sympathetic to arguments about the importance of national culture, part of the problem is that a cultural argument will never trump an economic argument in the public arena. That’s why it’s incumbent on us to offer a positive argument for the importance of retaining PI restrictions, not just a reactive and defensive one.

    More broadly though, I think you’re wrong about there not being anything special about Australian writing. The point of any writer is their individual experiences, imagination and sensibility, and the experiences, imagination and sensibility of an Australian writer are necessarily different from those of an American or Argentinean writer. That’s true whether you’re an Anglo-Australian like me or a writer from a non-English speaking background like Christos Tsiolkas. Liikewise the experience of recent migrants is experience of migration to Australia, and is going to be different to the experience of migrants to America. The two aren’t interchangeable either – both Christos Tsiolkas and Jhumpa Lahiri are the children of migrants but their work and the experiences in which it’s founded are quite different.

    I think the mistake you’re making is in assuming an argument for the particularity of national experience is the same as suggesting there’s a single way of being an Australian writer, or that Australian writers have to write about particular subjects. Indeed one of the joys of the last decade or so has been the way Australian writing has begun to look outwards, and to feel more confident about the range of subjects it can address. I’m with you every step of the way in being resistant to being ghettoized as an “Australian” writer, but as a writer I can’t deny my Australiannness (ambivalent as I often am about it) is part of who I am, and therefore part of why write and what I write about.

    I’m tempted to say things might be different in the more internationalized genres in which you work, but I’m not sure I think they’re really as internationalized as that. Even in a field as globalized as SF, there’s a recognizable difference between British SF and American SF. And if we’re talking about crime fiction, the whole point of crime fiction is regional specificity – Peter Temple is one of the best crime writers working anywhere in the world today, but a lot of his genius lies in his ear for the rhythms of Australian speech, and his unsentimental grip on the uglier side of Australian culture (not bad for a bloke who actually comes from South Africa).

    I also think Australian voices matter in a deeper way as well, because they help us see ourselves more clearly. I still remember discovering Peter Carey and David Malouf when I was about 18, and how liberating and transforming it was for me to begin to see Australia as a place that was interesting, and somewhere stories might come from. I’m not sure I would have become a writer without hearing those voices, and learning to think about Australia as a place worth writing about. And in the end that’s why we need Australian writers and Australian writing, because they show us who we are, and where we come from, and understanding those things is vital if we are going to exist in a larger world.

    July 24, 2009
  28. Benjamin Solah says – ‘I think this idea that Australian literature is somehow more valuable is bunk, that we need to be taught “Australian culture” whatever that is implies an underlying racism.’

    He obviously has not seen the Americanised versions of Australian children’s picture books that I have seen and compared with their authentic Australian twins. These books were re-published in the US for the American market.

    Benjamin Solah, it’s not just the weird spelling and the changing of Australian references that I’m angry about – it’s the changes the US publishers made to turn these fine stories into bland facsimilies of the Australian versions.

    Now, if that’s what American parents prefer their children to read,that’s their problem – but it’s these versions that will be imported into this country if the Parallel Importations restrictions are lifted; and they will be in direct competition with the authentic Aust editions.

    That’s what pisses me off most about this current threat to the Australian publishing industry. And also that people carry on about spending money on a book when they’d spend more on a meal in a restaurant without a whimper. Bah humbug!

    Check out the new fight-back campaign http://savingaussiebooks.wordpress.com/

    July 30, 2009
  29. In response to Jack Robertson, Kim and other people who’ve commented here, saying how great lifting PIR would be:

    I’m a mum of four boys, all avid readers. I work as a part time teacher. I live in rural Australia. I’m also a writer. My debut novel, Every Breath, the culmination of five years of solid work, was published by Allen & Unwin in 2013, and the two sequels were released in the two years after. Every Breath was a runaway success in Australia – it was nominated for a Gold Inky, the Ned Kelly Award for debut crime fiction, and a Davitt Award. In 2015 it was listed by the Australian Library Information Association as one of the ten most-borrowed YA books in Australian libraries – the only book on the top ten list without a movie tie-in. The sequels have all been awarded and lauded and shortlisted for things. I have another contract now, for a new book, which means I’m lucky. Sounds pretty good, eh?

    I earned less than $15,000 from writing last year.

    And now you’re telling me that because you don’t want to pay a little extra – what equates to the price of a cup of takeaway coffee – for a book, my territorial rights should be taken away from me.

    Being a writer means you’re running a small business. I bust my arse promoting, and working speaking engagements, and juggling parenting and a second (and at various times, a third) job – on top of all that, I find time to write somehow. I pay my taxes, like everybody else. But now the government is saying it doesn’t want to protect my business. I don’t ask for millions of dollars in direct subsidy, like, say, the mining industry. But I do my best to keep working.

    I have to say, I’m tired. I’m starting to believe that people don’t really give a shit whether the Australian publishing industry, and its authors, stay alive. I don’t think they care – as Kim says she doesn’t care – whether they see local characters, local stories, local landscapes and content. We should all just toughen up or ship out.

    So sure, I could write this new book, and make it appealing to overseas publishers, who will take over when Australian publishers go under. I could edit out all the references to kids playing Aussie Rules, or tuckshops, or listening to local music, driving around in utes, catching Melbourne trams, talking about Brisbane streets, navigating through Sydney traffic. Take out all the references to the multicultural nature of this country, where everybody comes from somewhere else, and has a story to tell about it. Take out all the slang – who cares if we don’t read any local vernacular? Also take out all the references to anything controversial, like religion, or politics, or culture – those things don’t fly so well in the US. I’ll just…set all my stories in American high schools, yeah, that’ll work. I’ll make my characters homogenous enough that no one will know what nation they come from. I can write away all the references to rural Australian life, the fauna and flora, the country. I can make my homogenous teenagers travel the streets of New York, say. Yep – that’ll appeal to the o/s market.

    Then I can bust my arse – again – trying to promote and market my work in a country that I can’t even afford to visit personally to hand-sign at bookstores. Who won’t even know who I am, because I come from a country with a market that’s so small, and a government that’s so unsupportive, it has no hope of competing.

    Or I have another idea. I could just stop writing.

    Easy.

    Problem solved.

    June 23, 2016

Trackbacks & Pingbacks

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