Australia grapples over
fair dealing or fair use – with Australian collection society channelling fees
intended for authors into ‘fair-use opposition fund’
The
potential replacement of fair dealing provisions with fair use provisions has
been a hot topic in Australia for some years now. Both fair dealing and fair
use function as exceptions and limitations to the exclusive rights granted to
copyright holders.
Fair
dealing – found within many of the common law jurisdictions of ex-Commonwealth
Nations – entails the exceptions and limitations being prescribed in detailed
statutory provisions. The UK’s Copyright, Designs and Patents Act 1988 Chapter
III and Division 3
of the Australian Copyright Act 1968 contain lists of fair dealing exceptions.
For example, section
40 of the Australian Copyright Act 1968 provides for fair dealing for the
purpose of research or study – “A fair dealing with a literary, dramatic,
musical or artistic work, or with an adaptation of a literary, dramatic or
musical work, for the purpose of research or study does not constitute an
infringement of the copyright in the work.”
In
contrast, the fair use doctrine is a test to be applied to allegedly infringing
uses of copyrighted works. In the U.S., the factors to be considered when
examining the use of the work are (s 107 of the
Copyright Law of the United States);
1. The purpose and
character of the use, including whether such use is of a commercial nature or
is for non-profit educational purposes;
2. The nature of the
copyrighted work;
3. The amount and
substantiality of the portion used in relation to the copyrighted work as a
whole; and
4. The effect of the use
upon the potential market for or value of the copyrighted work.
There
are those within Australia that argue against the introduction of fair use and
wish to maintain the fair dealing approach. And, of course, there are those who
wish to abolish the fair dealing approach and institute fair use.
One
particular actor that is strongly opposed to the introduction of a system of
fair use is the Copyright Agency – Australia’s collection society. Its
Corporate Governance Statement states
that the “Copyright Agency is a not for profit company limited by guarantee
which manages collective licensing of copyright works on behalf of Australian
and foreign creators and publishers. It has been appointed by the Australian government and the
Copyright Tribunal to administer the statutory schemes in the Copyright Act
(1968) for education, government and the print disabled [sic], and has also
been appointed to administer the Australian resale right scheme for visual
artists.” [i.e. one of its main tasks is to collect money from
educational establishments for the use of copyrighted works.]
Kim
Williams – Chair of the Copyright Agency – wrote
in the Sydney Morning Herald that the institution of a fair use regime “would
allow large enterprises to use copyright material for their own purposes either
for free or a very significantly reduced rate to what they currently pay today
under our copyright system … PwC has estimated that the introduction of such a
system in Australia would result in the loss of GDP in the order of $1 billion [Aus].”
The
Copyright Agency has set aside a $15 million [Aus] fund specifically to oppose
the implementation of a fair-use system. Astonishingly, this staggering amount
constitutes payments made to the Copyright Agency for the use of orphan works.
Works are classified as orphan works when the author cannot reasonably be
found. The Copyright Agency – a collection society – has been collecting fees
from educational establishments for the use of orphan works, yet will probably
never pass these fees on to the authors of the works. Instead, it has been
channelling those fees into a fund used to try to steer copyright policy.
In
another opinion piece in the Sydney Morning Herald, Peter Martin reported
that, before 2013, the Copyright Agency retained the funds generated from
orphan works for a period of four years, then distributed those funds to its
members. Since 2013, these monies have been channelled to the fund to oppose
fair use.
In
defending the creation of the fund, Kim Williams argued
that “The reason for provisioning this money is simple: any board that does not
prudently provision for the risk of a calamitous regulatory change which is
being pushed by entities as powerful as the Australian Digital Alliance would
be guilty of extreme negligence.”
The
Australian debate over the implementation of a fair use system will no doubt
continue for some time. Importantly however, the channelling of collection fees
– originally meant to recompense authors – in order to influence policy debate
could be argued as somewhat controversial.
Dancing baby case is 10
years old – and still going!
In
October 2016, the Supreme Court signalled its willingness to hear the dancing baby case when
it invited the U.S. Solicitor General to express the government’s view on the
case, and earlier this month the Solicitor General’s brief was published.
Lenz was successful at both the District Court stage (here) and the appeal stage(here).
The case has been commented on this blog previously here,
and over at the IPKat here
and here.
Recent updates found here
and here.
It
all began when Stephanie Lenz uploaded a video onto YouTube of her toddler
dancing around in the kitchen at home. Prince’s “Let’s Go Crazy” happened to be
playing on the radio in the background. Lenz was promptly served with a DMCA takedown
notice from Universal, the owners of the copyright in “Let’s Go Crazy”. With
Lenz’s use clearly falling under fair use, she fought against the DMCA
takedown. And so the legal saga began.
Updates
on whether SCOTUS will hear the case will follow as and when they come out.
$68 million law suit
brought by Sky Link TV in the U.S.
Having
hired a private investigator, Sky Link TV allegedly discovered that iTalkBB has
been providing access to 457 shows produced by Sky Link TV and/or Sky Link TV’s
parent company Guangzhou Broadcasting Network (GZBN). In fact, Sky Link TV
alleges that the infringing content was available on iTalkBB within hours of
original broadcast on a dedicated [infringing] ‘Sky Link’ channel.
From
the claim, it seems that iTalkBB approached Sky Link TV on various occasions
seeking licensing rights but was rebuffed. Sky Link TV is seeking $68,550,000
in copyright damages and $12 million in restitution, as well as costs.
You better lose yourself
in the music, the moment
 |
| Eminem |
The
Eminem song ‘Lose
Yourself’ was at the centre of a court
trial earlier this month in a Wellington High Court in New Zealand. A campaign
advert during the election for the ruling party was alleged to have
infringed the copyright in ‘Lose Yourself’.
Interestingly,
the song used in the campaign advert – entitled ‘Eminem-esque’ – had been licensed
by the political party from Beatbox Music. ‘Eminem-esque’ is part of a large
industry of ‘sound-alike’ songs.
Sound-alikes
imitate the feel of popular songs – invoking the original but trying to make
enough changes to avoid copyright infringement. It will often be cheaper to
record a new sound-alike song than to licence an existing popular song (in this
instance, the figure of $1
million was bandied around as a potential licensing fee).
The
judge in the case must now decide whether ‘Eminem-esque’ impinges upon the
copyright of ‘Lose Yourself’. During
summing up arguments, the judge
stated in relation to the sound-alike industry that “It doesn’t make it
legitimate because somebody hasn’t yet sued … It’s a question of whether it is
so alike that a sound-alike is crossing the line and becomes copyright infringement.”
Some would say that such a line is impossible objectively to draw without
potentially hampering future creative efforts – that’s why issues such as these
are often decided purely on a case-by-case basis.
The
video
of the sombre courtroom listening to Lose Yourself has provided entertainment
for many on the internet. Look out for a decision on this interesting
sound-alike case in the coming weeks or months.
Honeypot
Copyright Troll reaches end of the line
John
Steele – Prenda Law attorney – has been disbarred
by the Illinois Supreme Court. Amongst other dishonest activites, Prenda Law
was in the practise of uploading their own torrents to The Pirate Bay in order
to create a honeypot; they would later sue people that had joined in with the
seeding. Steele was accused of running a multi-million dollar fraud and
extortion operation.
The
court listed various types of misconduct, including “conduct involving dishonesty,
fraud, deceit, or misrepresentation, by conduct including filing lawsuits
without supporting facts, under the names of entitites like Ingenuity 13 and AF
Holdings, which were created … for purposes of exacting settlements.”
Steele’s
trolling “had no substantial purpose other than to embarrass or burden a third
person”.
The
Eminem picture is shared with the kind permission of the author Mika-photography.
The
troll graphic is shared with the kind permission of the author EFF-Graphics.
