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.
Sky Link TV has filed a substantial copyright infringement claim against iTalkBB, an over-the-top provider aimed at Chinese-speaking consumers 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
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.