Some time before the middle of February, the Attorney General George Brandis will announce the Government’s response to the recommendations of the Australian Law Reform Commission’s recent review of Copyright and the Digital Economy. The ALRC has recommended, among other things, that the Copyright Act should be amended to introduce “…a flexible fair-use exception as a defence to copyright infringement”. It’s a move that should have creative types concerned.
Currently, Australia’s Copyright Act contains several narrowly defined exceptions to the general rule that a person who wants to use another person’s copyright work must obtain the consent of the copyright owner. For example, it’s not an infringement of the copyright in a book to reproduce a reasonable portion for the purposes of reporting news, or, in limited circumstances, for criticism, review, satire or parody. The proposal is that these “fair dealing” defences would be replaced by the broader “fair use” defence. This would give users of copyright material far broader rights than they currently have to use material without the consent of the copyright owner and without paying the owner for the use.
The fair use proposal is only one of a number of recommendations made by the ALRC, but it will probably be the most controversial. It is opposed by organisations representing owners and creators of copyright, but has been enthusiastically championed by groups such as the Australian Digital Alliance, which describes itself as “Australia’s peak body representing copyright users and innovators in a digital world”.
One of the Alliance’s notable contributions to the fair use debate has been its sponsorship of a group that calls itself the “Creationistas”. They have produced a series of videos arguing that in the digital world “we are all creators”, that “Australian copyright law is broken” because it makes the activities of ordinary users of digital content criminals. But, according to them, that will all be fixed if “fair use” is introduced.
I have pointed out elsewhere that some of the claims made by the Creationistas are misleading. As a “creator” myself, I’m not sure it will all be plain sailing for creative types in the brave new world of fair use.
Fair use has been part of copyright law in the United States for some time and it’s likely that an Australian fair use exception would be close to that model. This means that US cases on fair use would provide Australian courts with guidance when interpreting the law.
There have been a number of recent US cases on fair use that haven’t worked out too well for artists and authors whose works have been appropriated and used by others without consent or remuneration. In addition, the creators on the losing side have tended to be less commercially successful artists whose works have been appropriated by far more powerful artists or enterprises.
For example, in his recent judgment in the Google Books case, Judge Denny Chin found that the Google’s digitization of complete books, without the consent of, or remuneration for, the copyright owners is fair use. The main reason for the decision was Judge Chin’s view that Google’s use of the books is “highly transformative” because it “digitizes books and transforms expressive text into a comprehensive word index that helps readers, scholars, researchers and others find books”.
Though there’s incredible potential in the Google Books project, it seems troubling that unauthorised, unremunerated large-scale use of personal property by a multinational corporation could be considered “fair”.
Another recent case concerned the appropriation and re-use by the artist Richard Prince of photographs taken by the photographer Patrick Cariou. Cariou had made only $8,000 in royalties from a book containing the photographs appropriated by Prince despite having invested years in investigating the project. Prince, on the other hand, is hugely successful. His works sell for millions of dollars.
At the original trial, Prince’s contention that his use of 30 of Cariou’s original works was fair use was rejected. On appeal, the court found that his treatment of 25 of the photographs was transformative fair use and that, looking at the Prince artworks and the Cariou photographs side by side, Prince’s images “give Cariou’s photographs a new expression, and employ new aesthetics with creative and communicative results distinct from Cariou’s”.
This case highlights the uncertainty about where fair use begins and ends, which suggests that lawyers might be among the winners if fair use is introduced in Australia. Particularly troubling is the appeal court’s statement that the concern is not “whether the secondary use suppresses or even destroys the market for the original work or its potential derivatives, but whether the secondary use usurps the market of the original work.”
The court pointed to another case in which an unofficial book of Seinfeld trivia usurped the show’s market, and therefore was not fair use, because the trivia book was something “…that a television program copyright owner would in general develop or license others to develop”. This suggests that a creator or copyright owner is at risk of unremunerated appropriation if they don’t actively pursue uses of works, even if the creator or owner might find them objectionable.
Dereck Seltzer was a street artist who, in 2010 sued the band Green Day alleging that the band had infringed the copyright in his 2002 drawing of a screaming, contorted face, called “Scream Icon”. During Green Day’s 2009 tour, a photograph of that drawing was used as a central feature of a video backdrop throughout an entire song (pictured above). No consent was sought from Seltzer and he received no payment.
At trial, Green Day’s use of the Scream Icon was found to be fair use because it was transformative – it was modified to some extent and was a component of a broader video. After the initial trial, Green Day (a band that has sold more than 70 million albums) sued Seltzer for payment of attorneys’ fees and he was ordered to pay them costs of more than $200,000. That order was overturned on the appeal.
Appropriation has a long and honourable tradition in western music, literature and art. In music, appropriation techniques have been used as far back as the middle ages. In art, the pop art movement of the 60s was notable for its appropriation and re-use of iconic images.
These examples serve as a counterpoint to the cheery and simplistic platitudes of the Creationistas, and suggest that the introduction of fair use will have clear winners and losers.
Many would argue that the fair use debate is a distraction from what the owners and many creators of copyright see as the really pressing issue with copyright in the digital economy – the continued unauthorised downloading and distribution of content. Many of them would argue that this is the aspect of copyright that is broken and lament the fact that it was barely addressed by the ALRC enquiry because of its limited terms of reference.