Background

In its recent Discussion Paper, the ALRC proposed that Australian copyright law should contain a “fair use” provision. This would allow people to use copyright material without getting permission from the rights holders, as long as the use is "fair".

Whether use is “fair” or not is determined on a case by case basis. It is not usually fair to use something that you can buy, or to use too much, or to use something that might discourage others from buying it. Most fair use provisions around the world list the same four fairness factors:

  1. The purpose and character of the use (eg, is it for commercial use? for educational purposes? news reporting? etc.)
  2. The nature of the copyright material used (eg, does it list or describe factual information, or is it highly creative?)
  3. The amount and substantiality of the material used
  4. The effect on the potential market for or value of the material

The ALRC has also proposed including in the Copyright Act a list of broad categories of purposes— “illustrative purposes” —that might be considered fair use. The fact that a particular use falls into one of the categories does not necessarily mean it is fair: it simply means it is more likely to be considered fair use than others. In each instance the four fairness factors must be considered. The ALRC has proposed that the list of illustrative purposes should include:

  1. research or study;
  2. criticism or review;
  3. parody or satire;
  4. reporting news;
  5. non-consumptive;
  6. private and domestic;
  7. quotation;
  8. education; and
  9. public administration.

Commenting on this forum closed on Wednesday 24 July 2013.

Comments (18)

The matter that concerns me is that for years now, publishers to whom I have supplied material on a once only rights basis and to whom I have not assigned full copyright, already make a practise of gleaning and cherry picking my text, photographs and illustrations and reusing them in compendium publications, or simply revising existing titles and reprinting same. This happens consistently across several book and magazine publishers and without due notification, or seeking my permission. The result is that I am left to somewhow discover the use and then enter into lengthy, tedious and stress filled sagas  to claim payment.

This practice is so rife that I have had to abandon the investment of time, money and expertise involved in  producing more work as I am having such trouble being paid for work I have already done and from which, under the previously existing copyright law, I had the reasonable expectation of continued income as long as the work was continuing to be traded commercially.

Until and unless copyright law protects the investment and effort and ownership of authors,  substantive work of any accuracy, depth or value is going to be dry up as there wil be no incentive to create it if it is simply to be rendered vulnerable and of no ongoing commercial value to those who created it.

If this is what the ALRC has in mind, it begs the question at whose behest this is occurring. It is certainly not that of creators or authors. Watering down the efficacy of intellectual property rights has no purpose other than to victimise authors, enable profiteering by publishers and facilitate rampant  abuse by outside and unrelated vested interests who would be granted licence to do what they like with original works with impunity.

I'm busy writing my submission, which will go into a lot more detail, but I thought I would mention one concern I have about the way the discussion paper deals with fairness. In particular, I don't think it would be fair for individuals to have less access to the freedom-of-speech-based exceptions than corporations.

An individual who does something like creating a fair parody or critical work, or including a quotation in their own work, will probably need to rely on someone else to publish it for them. The discussion paper's approach to third party uses suggests that a company like Youtube/Google that automatically publishes material on behalf of its users will not be able to rely on the user's fair use or fair dealing, but must establish its own defence based on its own purpose and a separate consideration of fairness. Also, a number of submissions argue that the publisher of these kinds of works should be required to have a licence from the original author, or should remunerate them in some way (although I have no idea how this is supposed to work in practice).

The problem with this is that it puts individuals, who may have no alternatives to this kind of platform for publication, at a great disadvantage compared to media corporations that exercise significant control over both the creation of works and their publication and so can rely on the same fair purpose for both. This was how Channel 10 was able to claim fair dealing in the Panel case, for example.

I don't think this would be fair.

I think fair personal use is a small slice of a work, that isn’t substantial enough to affect the creator’s income stream. It is also fair that the slice can be transferred to different formats, so that it is portable enough to be usable. As a librarian I get frustrated that people sometimes breach copyright as if it’s no big deal, seeing how it’s hard to police. But the other thing I notice in libraryland is that people borrow items or copy a portion, and it’s giving them a sample of an author’s work – if they like it they might purchase their works in future, so this library use can complement sales for authors.

I would like to add that the Part VB licence might not be fair on the budgets of our schools and universities. As I understand it, Copyright Agency cannot always get through to creators with payment. There could be an opportunity for alternative codes of practice, and some funds freed up to improve the service quality of educational institutions.

To conclude, in my opinion, the fair use allowances seem reasonable enough, but more work needs to be done to determine fairness in relation to new technologies and devices.

Unbeknownst to many there is a community of Australians that are already adept at applying Fair Use - Wikipedia's volunteers.

When you read a English language Wikipedia article about a recent book, song, TV show, movie or corporation there will most often be some multimedia (generally an image, but sometimes a short video or sound clip) to illustrate that article. This content there under the USA system of Fair Use. Becuase Wikipedia is based in the US, those are the copyright laws that apply to the site. If the website were based in Australia those logos, pictures and clips would be deleted as "being an encyclopedia" doesn't fit within Australia's existing copyright exceptions. As Australia's 5th most visited website it is probable that the vast majority of Australian readers of Wikipedia are unaware that what they are reading would not be permissible under their local law.

Wikipedia's volunteers self-impose a very stringent "Fair Use Rationale" test on every item of multimedia used in this way - far more stringent than could potentially be justified under the US system - in order to ensure that no one mistakes Wikipedia's usage of this copyright exception as anything other than legitimate, educational, and careful. For the detailed policy Wikipedians have written for themselves, see: https://en.wikipedia.org/wiki/Wikipedia:Non-free_use_rationale_guideline

For example, the copyrighted logo of the Australiasian Legal Information Institute (AustLII) illustrates that organisation's Wikipedia entry by applying US Fair Use standards. Click on the image to see the Fair Use rationale: https://en.wikipedia.org/wiki/Austlii

Each rationale contains these elements:

Description: A description of the copyrighted material. 
Source: Where the user acquired the copyrighted material, or how they recreated it.
Article: The exact name of the Wikipedia article in which the media is to be used (if the media is to be used in multiple Wikipedia articles then a rationale needs to be created for each usage.)
Portion: How much copyrighted material is used? The amount used must not make the work as a whole less valuable to the copyright holder.
Resolution: Is the material in a lower resolution that would be unlikely to impact the copyright owners ability to resell or otherwise profit from the work?
Purpose: How does the media contribute significantly to the article(s) in which it is used? The use of the media must not interfere with the media's original purpose.
Replaceability: An explanation of why sourced text or equivalent freely licensed media could not adequately convey the article subject.

Wikipedia applies these tests very stringently. For example, no Fair Use images of a person may be used in their biographical article where that person is still alive, as this would fail the "replacability" test. Furthermore, in language editions of Wikipedia where the majority of readers/writers live in countries that do not have Fair Use (e.g. French and German Wikipedia editions) they do not allow Fair Use media. This is even though the websites may legally include such content if it wanted to due to their being hosted in the USA.

 

All this is by way of pointing out that Fair Use is already in use Australia (even though Australian readers of Wikipedia probably don't know it), and being utilised by Australians writers of Wikipedia in a conscientious manner. Including Fair Use in Australian domestic copyright law would harmonise that law with existing practices.

As an author/artist who creates blackline master works exclusively for use in schools, allowing free copying of my books simply because they are used in an educational setting is unfair. It is the equivalent of allowing teachers to go the local coffee shop, buy a $4 cup of coffee and get free refills for life. The majority of my income comes from copyright payments. If the current copyright protections change I will not be able to continue creating works. At a time when artists, authors and publishers are already suffering because of illegal use and copying, taking away one our few protections is unthinkable. 

I think you've misunderstood the proposal. It's to provide a fair use exemption for educational use of works where that doesn't harm the market for the work.

For example Damien Hirst spent 14 million pounds making a diamond-encrusted skull as an artwork, and he profits from selling photographs of it. School children in art class should be allowed to use a copy of a photo of the skull in a collage without paying the same as an art collector buying a limited edition print of the image, because this does not actually harm the market for those prints; the school children are not participants in that market.

If you're making original works specifically as textbooks, then your market would be harmed by unlimited copying by students, so I don't think the proposal would apply to your works.

As a researcher I have studied for over ten years to gain my research qualifications and experience. As an academic, I conduct research often at considerable cost to myself. The research based papers that I publish attract a small copyright fee. It is a tiny proportion of my income, often less than $50 per year, but it is money that I feel that I have earned. I normally use the small copyright fees that I earn in conducting further reserch. The higher education sector has been squeezed enough by successive government. Please don't remove our copyright fees as well.

Sally Hunter

As a reviewer and cultural critic working online, I often wish I had freer access to short video clips, interpolated in my work, for the purposes of criticism and analysis. Online video has been a boon to the kind of cultural ephemera (such as vintage advertisements, old TV programs and broadcasts) I'm interested in. We cite these 'moments' in shared, informal discussions and critiques, but I remember even around 2000 this stuff was seldom available, and could only be discussed publicly from memory, or whenever the copyright owners decided to include it in 'from the vault'-style clip shows.

Making short excerpts from vintage video publicly available online both is and isn't educational: the educational function doesn't always happen within institutions, yet the purpose is non-profit and serves cultural memory. Museums and film and sound archives have made selected material available, but copyright owners have locked down the rest, even when it's decades old and there is little discernable commercial value to the clips. When they do show up online they are almost always shared in excerpt rather than in their entirety, and even when I'm selling my criticism commercially, the clips perform a citational role (ie, the video equivalent of a 'quotation') rather than being a substantial part of my new work.

 

To give you an example, recently I wanted to clip out less than a minute of footage from the TV show 'Skippy' for the purposes of commentary, but got an immediate takedown notice when I tried to upload it. This show is nearly 50 years old. It's an important part of our shared Australian pop-cultural heritage, yet the copyright owner's only interest in it is screening it sporadically as a schedule-filler at 2am on a digital channel.

 

As a deaf man I require video content to be captioned and this is a battle that has major implications for those with a hearing loss (as we watch media convergence take a larger place on the Internet and we watch the hard won accessibility gains on traditional media, such as 100% captioning on free-to-air TV, revert to less than 1% of video content on the Internet being captioned).

If the content producers or their distributors fail to make their content accessible, I believe that it is "fair use" for me to take a copy of the content, and distribute it online (for other people who rely on captioning), provided I make it accessible (with captioning).

If this is unpalatable to content creators and rights holders, then they need to implement a more consistent accessibility framework - perhaps an accessibility levy of some sort that ensures that accessibility is a necessary requirement to retaining those rights?

 

 

I believe that what has been missing from much of the fair use conversation so far is attribution.

Most of the submissions did mention that attribution or recognition is important. I think the reality is very different. There are many examples where creators works have been used whether fairly or not, but there is no attribution, so it is perceived at 'stealing'.

There doesn't appear to be consequences for not giving attribution. So while lip service of how important it is to attribute and recognise moral rights, it is consistently not done, and from other comments it looks like nothing can be done about it.

Any changes in this area of the Copyright Act, would probably be more palatable if creators had the confidence that when their work is used, they will attributed/recognised/referenced/acknowledged for the work they created.

 

Fair Use

Uses unlikely to discourage innovation in content space.

  • use of work to create new works,
  • use of work for non commercial purposes,
  • use of work for research,
  • ...

Uses that provide additional social value derived from work

  • critique of work
  • criticism of work
  • ...

Non Fair Use of copyright

Uses likely to discourage innovation.

  • use of technology to prevent consumers from using the work for fair use purposes such as internet delivered content that prevents users from being able to simply obtain a copy of the content.
  • terms and conditions aimed at limiting how consumers can access and interact with the content.
  • ...

 

What is NOT fair
Copied content from lists to images has been an issue for my website for years but more so recently.  There is another website who, after being caught passing off as my site on Facebook, changed names and email addresses but continues to take information from my website to use on their own. No 'information courtesy of'.. instead comments such as they are 'filling a void' for what I have done for 10 years and they now copy.  It is copyright breaching in a manner to pass off as me and increase their content and contacts. My information is sourced, sorted, correlated, and set in tables for public use from a variety of submissions from more than 100 different sources built up over the years.  They have ignored requests from solicitors hired by me to stop this and they now continue to do it more often; 
There is a common thought that if it is on the internet it is free and even when people are told it appears they either don't care or know that, unless you are a large company, you can't afford to take it to court.
It is a desperate situation - especially on Facebook where visitors cannot be identified.

Facebook is located in the US, so this enquiry isn't going to help you directly. But you can send a DMCA takedown notice to Facebook, and they'll remove the infringing content pretty quickly.

 

Copywrong? Where is this floodgate of court cases stopping humourous parodies? Let's get serious. This is about allowing companies and educational institutions to either stop paying copyright fees (or to pay substantially lower fees) to content creators.

Where will this lead? Take a look at the success of Buzzfeed in the US, which lifts photos from the web without permission and draws incredibly large audiences. Pity the poor content creator who does not see a cent. The internet may have severely disrupted the business models which content creators have relied on to make a living, but it does not follow that content no longer has any value above re-use and aggregation.

Technically only one of the attached jokes is legal.

One uses satire and parody.

The other doesn't really say anything... but both are funny.

Both don't impinge on the profit models of the existing works that they are created from.

Today there are three generations of people who have grown up with the internet, and part of that is remixing, and mashing up existing work to tell their own stories.

The people doing this don't really care about copyright legislation, because it doesn't matter. If they have an idea, the tools to create it, and will to take the time. It will be made. Copyright law is beneath them. A funny idea.. is a funny idea. There is no way you can stop a good funny idea.

I think that fair relates very much to the size and capital value of the company requiring the material - in comparison to the size and value of the company/artist/originator of the material.

For instance: a large and sucessful company such as Telsra, a T.V channel or publishing company, often have enough monetary resourses to pay staff to be inventive and produce their own material.

It seems that large comanies have for some time now been 'laying off' creative staff because they can out source the work, now they may be able to 'obtain' material without paying a cent.

It is unfair to a small producer (for the large company to use their work without permission) because 

  1. it is obvious to the large supplier that they cannot afford to sew the large comapany who use their material, even if their business may be adversley effected by it's use, or the company have not adhered to all of the rules (as set out in new law reform), therefore they will 'get away with it' anyway (risk assesment)
  2. the small producer who may have once been employed by large companies to produce innovative idea's/materials, is now redundant because companies have either decided to outsourse (fair enough), but soon if they do not even have to have permission or pay for the use of new materials they will not be paying anything - and more and more creatives will become 'unessary'

It is obvious that this law leans heavily toward the 'growth' of larger/blue chip companies and is a negative for smaller businesses.

Pehaps the law can take into consideration the financial viability of:

  1. the cost that the material may have once had on the market, when people used to be employed to do creative work
  2. against the loss to the original producer (hat might they have charged for it)
  3. and the growth of the large comapny, in compariso to the supplier

This will mean that a large company using the material of another equally or larger company - would not have to ask permission for using the material (where once the risk assessment would have stopped them using it for fear of being sewed)

but they would have to seek permission from a smaller company or producer

MAYBE WE COUD COME UP WITH A FORMULA??

These proposals, from an inquiry advised by people who don't apparently actually create words for a living (libraries, consumer groups, universities, internet media companies), appear to be designed to allow anyone in the education sector to avoid paying for content.

Am I right or am I missing something?

There are nice words about those who create content but nothing within the discussion paper addresses the central issue: how do they get paid if licences are 'voluntary', a word which could mean 'never bother to pay for someone else's work'. 

" to create greater availability of copyright material in ways that will be socially and economically beneficial"

New opportunities in the digital economy is a stated aim. The argument appears based on the idea that if we stop paying content creators for their labours then everyone else can make more money. And for those in the business of not making money (some schools), they certainly pay less and that this is a good thing for society. Worthwhile noting here that other inputs (teachers, plumbers and those who supply the tuck shop) into the education system still get paid. 

This is something like the basic building block of the whaling industry: we don't have to feed the things, all we do is go out and catch them, process them and sell the end product. A fine business model until, of course, greed kicks in and the whale stocks get depleted. As will the author stocks be depeleted with fewer and fewer dollars to feed them.

 

I agree that the advisory committee could do with some more authors, musicians and so on. However it's not as if they're not seeking the views of authors. And many of the proposed categories of fair use are for authors. After all:

 

  1. research or study;
  2. criticism or review;
  3. parody or satire;
  4. reporting news;

These are all creative activities that authors do. All creativity is built on previous creativity.

 

I'm an academic researcher (a PhD candidate at UTS). The academic above who is concerned about losing the $50/year in copyright fees that they receive is not representative of where the conversation among academics is at the moment. All of our work is built on citations of others, and it is greatly in our interest to have our work read as widely as possible. The current copyright regime enriches publishers while choking knowledge and paying authors a pittance. Entire journal boards are resigning in protest because of the exorbitant copyright restrictions enforced by the old publishers, and we are moving en masse to open access journals.

 

In academic work, the legal regime of copright is out of sync with our accepted ethical standards. Plagiarism is the issue, not compensation. Passing off another's work as your own is forbidden, but quotations and citations are of positive benefit to the author quoted or cited. Academic researchers don't need to be paid when someone reads or quotes our work. And we're not paid, except perhaps in the most absurdly token amounts. The copyright-enforcing publishing houses are a drain on our libraries' resources, far beyond the value they provide now that the Web (invented for *exactly this purpose*) exists. New journals are leaving but the publishers hold massive archives of older work in their databases, so we can't cancel our subscriptions. The wait for those works to fall into the public domain grows ever longer as Copyright lengths are extended. Supposedly for the sake of the authors - but this is a transparent con; the authors are mostly dead now, or if alive can't be further incentivised to write works they already wrote years ago, and either way aren't seeing a cent of the revenue.

 

Another example of current copyright regime interfering with what would otherwise be accepted academic practice: quotation of short passages of text is accepted, but inclusion of images from cited papers is not. This is tremendously annoying. To show a figure from another paper (with correct attribution) in order to expand on a point contained in it, or to criticise it, should be the same as using a textual quote. After all these are not artistic works for sale, this use would not damage anyone's income. The practice of requiring clearances for graphical quotations creates a chilling effect. People just avoid using them, so bad graphs go unchallenged and good ones are not celebrated.

 

The worst effect of all this is on independent researchers. Once you're inside the firewall with access to a University library that has licenses to all the databases then you don't notice it; but all of this research is locked away from the wider public, which is an outcome that benefits no-one and actively harms scientific progress.

 

The length of copyright terms on academic works locked in publishers' databases must be drastically shortened. Fair use of academic research equates with open access - free sharing of knowledge along with correct attribution and respect for the moral rights of the authors.