What’s all this about ‘Fair Use’?
The way copyright works in Australia, you usually have to ask permission of the creator to use their copyright material. But there are some exceptions (to the rule) where you can go ahead without asking permission. These are called Fair Dealing exceptions and include: research, reporting news, parody, copying by libraries, accessible format material for people with disabilities, and copying for personal use. Schools and universities are also allowed to copy and share material provided they pay fair compensation to the copyright owners.
The American system includes a provision known as ‘fair use’, which is highly litigious, famously hard to predict, and has allowed large corporations to copy material without asking permission.
Why should content be free?
Innovation and productivity do not require free use of copyright material. There is no public policy reason why any Australian creator, whether they be musicians, authors, film-makers, artists or publishers should have their rights removed for third parties who seek to profit from that material.
The value for the creators of Australian stories in music, film, art and literature is the value of its copyrights. The value of copyright is informed by the capacity for creators to have reasonable control of their content through licensing. This capacity for control is already being diminished through piracy and online intermediaries that seek to avoid paying for the content on their systems.
‘Fair Use’ will further erode Australian creators rights to receive fair payment for their work.
Here are some notable examples:
Prince vs Cariou
In a 2008 exhibition, the American ‘appropriation’ artist Richard Prince used images from French photographer Patrick Cariou’s book, Yes, Rasta. He made changes to them such as resizing them, adding colour and ‘props’ such as sunglasses and a guitar. Mr Prince and his agents, the New York-headquartered Gagosian Gallery, were able to sell and barter the works for close to $20 million.
In the ensuing lawsuit, an initial finding of copyright infringement was overturned and a finding of Fair Use was declared as the court found 25 of 30 works could be considered ‘transformative’. The case was eventually settled out of court. Read more here and here
Google’s actions of scanning millions of books provided by libraries without permission kicked off a decade long lawsuit with the American Authors Guild. The case landed in Google’s favour – allowing the giant tech company to copy 20 million books without permission, in fact, without even buying a single book.
Google’s goal was to amass an unrivalled digital library, using these books to draw users to its website, strengthen its dominance of the search-engine market, and increase its advertising.
Google has now scanned some 20 million books, and it displays what it calls “snippets”—short passages—from 4 million that are still in copyright. It has given digital copies to libraries as well, for their own use, in payment for their cooperation. Read more
Read more about ‘Fair Use’
Aboriginal and Torres Strait Islander artists slam changes to copyright in Australia – Tone Deaf 15 February 2017. Read more
Australian leading writers for stage and screen speak out – Daily Review 13 June 2017. Read more
Australian content industry unites to reject Productivity Commission report – 16 February 2017. Read more
Time for the truth to interfere with the copyright battle in Australia – Business Insider 25 May 2017. Read more
NAVA launch Open Letter to the Australian Government on copyright – 30 May 2017. Read more
We should all be angry about attempts to weaken copyright laws – playwright David Williamson writes in the Daily Telegraph. Read more
Australian Publishers Association on US-style ‘Fair Use’ and Australian Publishing. Read more
APRA AMCOS submission to the Productivity Commission review. Read more
Copyright Agency on what is ‘Fair Use’. Read more
Australian Society of Authors on the ‘Fair Use’ campaign. Read more
‘Fair Use’ – the wrong direction at the wrong time for Australian artists. Read more
Screen Producers Australia outraged at the Productivity Commission’s final report. Read more