94. _org_Faculty Of Law, University of New South Wales

Full name: Professor Kathy Bowrey

Question 1: 
The questions in the Issues Paper direct attention to specific areas of law and particular technological practices, however the ALRC Copyright Committee terms of reference connect issues of the digital economy with issues of the advancement of culture and cultural development. It needs to be noted throughout the Inquiry that the economic logic of copyright is always tied to a cultural logic. Economic claims about costs, inefficiencies and benefits of the current provisions and any proposed recommendations need to be evaluated in terms of a quite sophisticated consideration of the longer term impacts on creative practices. Too abstract and particularistic discussions of the trade and the law can erase the human dimensions of creativity and cultural consumption. We need to keep in mind the particular kind of cultural products we want to have access to and craft rights to support culturally meaningful forms of engagement with copyright works.
Whose participation in the digital economy counts?
In addressing questions about the economy of the "copyright industries” and the ability to earn a living, care needs to be taken not to conflate the position of original content creators (some of whom will be employees, others independent contractors or sole traders), with that of copyright owners.
The most reliable information about earnings of creators is that produced by the Australia Council. Reports include:

•	Economic Analysis of Literary Publishing in Australia. Final Report (SGS Economics and Planning Pty. Ltd. 2008)
•	Don’t Panic. The impact of digital technology on Major Performing Arts, (Jackie Bailey, 2008)
•	Don’t give up your day job: An Economic Study of Professional Artists in Australia (Throsby and Hollister 2003).
There are different income distributions across sectors, however studies repeatedly show that overall artists earn very low incomes with considerable numbers living below the poverty line or unable to make a living from their creative practice. Many creative people including actors, performers, dancers and musicians do not necessarily produce works that copyright directly protects. Copyright is generally attributed as a marginal component of incomes. Approximately one-third of professional artists were members of copyright collecting societies in 2010, but of these over a half did not receive any royalties in the previous twelve months (Throsby and Zednick, 2010, ’Multiple job-holding and artistic careers: some empirical evidence’, Cultural Trends, Vol 20(1)9: 10). Nonetheless, copyright, and moral rights in particular, are cited as important to artists, regardless of the financial returns.
It is no surprise that Australian creators, who often benefit little directly from copyright, are nonetheless strong supporters of it. There are real indirect benefits that flow from a much more complicated web of labour relationships that underpin production, especially in the film and television industries. However to copyright, the value of these labour relationships, related to commissioning works and original creation but antecedent to commercialisation and distribution, is to be worked out in contract and industry arbitrations, underpinned by markets supported by media regulation and supported by public monies. One consequence of this is that these relationships and dependencies are not necessarily apparent within the domain of copyright law, in particular because copyright law is often discussed in terms of abstract ideas of rights and the viewpoint presented in legal domains is largely that represented by large corporations, collecting societies and industrial actors.
Especially in the film and television sector standard terms of trade set basic fees for different kinds of artistic labour that underpins the creation of copyright works ultimately owned by others (eg. standard fees for concepts, ideas, brainstorming, rewrites). In this sense artist incomes may not be directly attributable as payments for assignments of copyright, however the contribution of artistic labour underpins income generating copyrights owned by others.
The capacity for generating residual earnings is impacted by regulations concerning  transmission rights (s135ZZK Copyright Act 1968; Convergence Review, 33); local content rules (s122 Broadcasting Services Act 1992, Australian Content Standard 2005; Convergence Review, Ch 5 and Ch 6); children’s programming requirements (s122 Broadcasting Services Act 1992; Children’s Television Standards 2009; Convergence Review, Ch 5); and restrictions on employment of overseas personnel (s40 Migration Act 1958; Reg 272D Migration Regulations 1994). However these rules are crafted with no, or only peripheral, recognition of their importance in creating ‘trickle-down’ royalties for those employed in originating the copyright work. In this sense, whilst the labour of various parties is central to the creation of copyright works, appreciation of the economic value of that labour is deflected through the operation of other laws and regulations.
Copyright law discussion of entitlement and desert in the digital economy is often limited to a consideration of the more visible copyright interest of investors and distributors and direct shares in copyrights. There needs to be careful consideration of a broader range of contributors than this, so that the interests of other creators, and the relevance of other regulations, are considered in fashioning new and fairer rules for the digital economy.
Old dependencies, historically created by copyright law, can also be too readily carried over into the ‘new’ economy. There could be significant problems with industry sustainability if creator shares in digital distribution are constructed as minor and subsidiary claims on the pie ultimately carved up to producers and distributors.
The overlap with media regulation
The problem of correctly identifying the key legal and industrial connections that support the creative industries is further exacerbated by law reform processes. Media law and regulation is conceived of as involving separate issues and public interests to copyright. Many digital economy issues were considered by the recent Convergence Review, however that review did not consider the interplay of copyright and Australian media regulation in the creation of markets. The terms of reference of this review confine discussion to the Copyright Act 1968. However digital media markets are, amongst other things, a construction of the interplay of media, telecommunications and copyright law. The ALRC terms of reference thus distort an appreciation of the more complex networks and relationships in play, by seeking to confine the legal issues to the operations of one legal domain (and then to only part of copyright’s domain- fair dealing). These artificial divisions hinder a sound understanding of the ways laws work in practice. This significantly complicates our ability to formulate laws and policies that support the Australian digital economy.
Question 2: 
The current legislation is very poorly understood, not helped by incremental reforms that, whilst legitimate in political terms, have failed to appreciate the impact of the drafting on the body and culture of the law overall.  In the past decade, as a consequence of serial parliamentary reform and in particular flowing from free trade agreements, copyright law has become more regulatory in nature. As such it has taken on more of the culture of Australian media regulation, which is not necessarily made with reference to historical and legal principle. Further media regulation is more often directly influenced by immediate political imperatives - especially because of the symbiotic relationship between the media and the political sphere (Thanks to Lesley Hitchens for this point), and without much consideration of civil society perspectives.
It is understandable that in copyright law political compromises may be required to resolve intractable disputes around particular issues, however whilst resolving an immediate political impasse, these resolutions can create far more significant longer terms problems for copyright law.
In the digital economy copyright law cannot function effectively if it can only be understood by trained experts. It needs to make sense to a much broader public and non-professional constituencies. This aspect has often been overlooked in past reform processes dominated by lawyers, corporations and large institutional interests. The significance of this problem should not be under-estimated.
Poor legislative design generates misunderstandings of legal obligations by lawyers and non-lawyers, creates compliance problems and generates inefficiencies on a number of levels. It impedes the generation of normative understandings of the law required for it to be effective over time and contributes to simplistic and polarized discussion of the politics of copyright.
Copyright comprises law, regulation, common law and normative expectations generated over centuries. In fashioning any new recommendations for reform the inter-relationship between these various dimensions of the legal landscape need to be considered. Copyright law reform should not be limited to consideration of the content of discrete provisions. This will only further contribute to excessive legislative complexity and length. With the considerable expansion of copyright to accommodate mass media in the 60s and then digital media in the late 90s, Australian legislation has significantly expanded. It ran to 26 pages in 1911, 104 pages in 1968, 699 pages in 2012.
I have been teaching intellectual property law to high performing undergraduate law students for twenty-three years. Courses have considerably expanded over that time, with copyright law now taking up twice the class time it used to. Despite this expansion, it is not possible to adequately cover the full range of rights and interests in class because of the technical complexity and lack of apparent logic to the organization of the legislation and the volume of material the law and regulations entails. If this is a problem for law students who are academically inclined and theoretically interested in law, it is a much bigger problem for the rest of the community.
The ALRC is constrained by the terms of reference in what it can address. In relation to what comes within the terms of reference the ALRC could adhere to basic architectural principles in fashioning recommendations and propose supporting documentation to make the law easier to understand. Uppermost should be consideration that legal meaning is generated with reference to the words of the statute understood against historically elaborated principles and normative justifications. This is what creates stability in the character of copyright law over time and generates long term public and private expectations about entitlements.
In accordance with historical jurisprudential tradition, the Copyright Act should be confined to expressing the legal principles that affect us all, in a manner that assists in generating the required normative framework that allows it to be broadly understood. The language needs to be cognizant of common law and everyday meanings. Where possible, inclusive general language is to be preferred and qualifications and excessive legal particularity avoided.
Exceptions that pertain only to particular special actors, or statutory bodies such as carriage service providers and collecting societies should be confined to Copyright Regulations.
Question 3: 
Question 4: 
A foundation principle of copyright is that exclusive rights are granted to culturally significant kinds of works and other subject matter. The entire design of copyright is predicated on generating works and royalties for meaningful forms of intellectual engagement.
Data per se is not protected. An infringing use has to be a dealing with a substantial part of the original work. This reflects the logic that the bit or byte protected has to ‘make sense’ as part of the infringing work. It logically follows that a ‘copyright use’ is one that is perceptible to human senses. Internet related functions that involve intermediate acts of storage and transmission of data should not alone be considered a form of copyright infringement.
Some forms of caching do involve human interactions and judgments about the data to be captured. Currently s116AD makes a distinction between automatic and manual selection of material for caching. This creates unnecessary complexity and generates unhelpful philosophical discourse around the meaning of particular technical acts, detached from consideration of the broader purpose of copyright. Where caching is not motivated by a desire to find meaning, be entertained or engage in an act of interpretation of a work, it should not require permission.
The economic logic of copyright is tied to a cultural logic. That a use such as caching can be assigned an economic value does not justify a copyright return.  A copyright owner’s right is a right to control culturally meaningful uses, not every use of a work. To maintain the integrity and consistency of copyright’s logic, dealings with mere data should be distinguished from culturally meaningful dealings with copyright works and subject matter.
Consistent to its operation in an analogue context, copyright infringement should be limited to interpretative acts and exclude technical acts that facilitate use of the work by another, unless the latter also constitutes an authorization of copyright infringement.
Question 5: 
Question 6: 
The logic of cloud computing is to utilize offsite commercial storage of digital files and enable access to them from multiple devices, including facilitating sharing between users such as family members who may share the accounts and technologies. It will be very hard to avoid using cloud storage in the future as standard operating systems for most everyday consumer and business computer and telecommunications technologies are pre-figured on the use of cloud storage on the basis that it is an efficient mechanism for sharing data accessed by multiple devices.
In National Rugby League Investments Pty Limited v Singtel Optus Pty Ltd [2012] FCAFC 59 the Full Federal Court adopted a very narrow interpretation of the fair dealing provision s 111 and found that  “There is nothing in the language, or the provenance, of s 111 to suggest that it was intended to cover commercial copying on behalf of individuals.” With the High Court refusing leave to appeal this decision creates a problem that the ALRC will need to clarify. The decision has detrimental implications for the development of cloud storage as the commercial provider of the data storage service is limited in the kinds of storage service it can provide and the way it can efficiently serve client data needs, because the decision suggests a potential for liability for facilitating access to any copyright content whose existence is generated, at first instance, by users and for the benefit of users.
As noted in relation to caching, to maintain the integrity and consistency of copyright’s logic, dealings with mere data should be distinguished from culturally meaningful dealings with copyright works and subject matter. Mere data storage and transmission should not generate copyright liability. Whether cloud storage, sold to customers in terms of bytes, is equivalent to providing a digital subscription service and S111 is discussed under Question 9.
Question 7: 
One of the fundamental problems to be addressed here is the shifting meaning of ‘private and domestic use’. This concept is still imagined in terms of the distinction between public and private space, however within the law and in relation to what is a public performance of a copyright work, the court decoupled consideration of private and domestic use from a reference to physical space.The notion of the “copyright owner’s public” was utilised, defined with reference to uses in a commercial setting. (Duck v Bates (1884) 13 QBD 843; Telstra Corporation Ltd v Australasian Performing Right Association Ltd [1997] HCA 41). However this reference is not particularly helpful for establishing normative points of law, such as:
•	what uses should be considered as part of the copyright owner’s public?
•	what should be considered as a commercial setting? and,
•	what everyday inter-personal exchanges should be excluded from commodity relations?
With social media which houses inbuilt preferences of digital sharing, it is harder than ever to distinguish what is public and what is private space, and what is a commercial use and what is not. Privacy is rarely the default architecture. A degree of privacy can be achieved through a process of user election and vigilance, however whether by intention or happenstance, notoriety, friends and followers have a potential commercial value. This further complicates discussion of user rights and non-commercial uses.
I do not think there is much to be gained by trying to adapt existing legal tools such as the copyright owner's public  to address the question of private and domestic copying in the current technological environment. A different approach is needed. Whilst Question 7 relates to copying and not sharing, it is also artificial to separate out the two issues, as copying is frequently motivated by the desire to share.
We live in a culture that prizes the value of purchasing goods, whether or not we need them. This can lead to a predilection toward hording in some households, a desire to archive works we are emotionally connected to, and to share them and push copies of works (wanted or not) onto others. This is an understandable social reaction to the kind of world we live in. Making and sharing copies of cultural works with intimate others is one of the ways we build a sense of meaning and belonging in the world.
When the television and VCR were located in the lounge room, the one copy sufficed to facilitate multiple viewings. However with the array of devices and locations where broadcasts can now be experienced, there is a requirement for multiple copies to be made, if family and friends are to share the viewing.
It is socially important to maintain some human capacity to communicate and share cultural references and information with each other, without always requiring commercial transactions. It is also unrealistic for the law to presume to be able to govern all communications and undesirable that the law facilitate greater surveillance of normal social interactions than is already occurring through our use of digital technologies.
Both tangible and digital copies are fragile in different ways. With digital copies, the technical dimensions of formats and players change with time. This itself creates a new market opportunity. However for consumers, who purchase cultural commodities for their content, not with regard to the particularities of the copyright license, the same content in new formats involves a repeat purchase of the ‘same’ content. The easiest way to de-incentivise excessive and repeat copying for private and domestic use is for copyright owners to re-release material in new formats in a timely manner at a cost that is attractive to consumers.  Stronger protection may work to shore up old revenue streams and impede the evolution of new markets.
Question 8: 
As noted above, digital conversions, including digital to digital, are often required due to changing technologies and interactions with other software. These changes are often beyond the consumer’s control and can effectively frustrate or terminate access to legitimate works. It is hard for consumers to understand why they do not have the right to maintain functional access to content they have purchased, because of technical decisions made by third parties.
A digital to digital format shifting right could create confusion over common consumer licences. For example, the terms of use of iTunes, Kindle or Google e-books limit accessibility linked to specific user accounts, particular kinds of devices and the number of devices that can be used to access the work. The limited portability of the digital content purchased effectively ties access to an ongoing relationship with the particular technology provider as the exclusive right to access the content can be leveraged into an exclusive agreement to use the particular corporate platform associated with the distribution of the work. This economic strategy effectively grants large platform owners considerable control over digital media markets and raises competition concerns. While this problem may be conceived of as a ‘competition’ issue, it is the underlying copyright that creates the asymmetrical power relationship between platform owner and consumer.
There are readily available tools that can be used to convert some digital files across formats. For example Calibre is a free and open source e-book library management application that can be used to convert a huge number of e-book formats to other formats. The converted files can then be rearranged according to desired metafields, allowing greater flexibility in organising an e-book library. The tool operates within DRM restrictions, however there are plug-ins that can be found to assist in stripping these. Posts on e-reader forums suggest the tool is currently used to share e-books across readers, eg. Kobo touch to Sony readers, and that files often include both public domain and proprietary material. Discussion threads show an awareness that copyright material should not be shared in this way. Community moderators are very careful not to encourage discussion that could be taken to sanction copyright infringement or to assist with DRM-removal related queries.
A general format shifting exception would be clearer for users to understand than any technologically bifurcated approach. Both legitimate conversion software and hacking tools require a degree of technical capacity and dedication that naturally limits their widespread use. Owners can and do readily restrict access to content using DRM. There are existing laws relating to technological protection measures, electronic management information and laws against authorising infringement. These provide mechanisms can regulate the third parties that provide tools that may foster piracy. Without ready access to DRM cracking tools, consumers cannot engage in sharing proprietary material content owners want to restrict access to. Targeting those that facilitate piracy is preferable to restricting arguably legitimate uses of conversion technologies, such as porting free e-book files from one platform to another.
Sharing public domain material is clearly legitimate and attempts to restrict access to this material through asserting copyright over file formats and platforms is a dubious practice. Terms of service associated with popular e-book readers often seek to restrict use of conversion technologies and file portability, regardless of the copyright status of the content. Where e-licences imply that it is wrong to share both public domain and proprietary content there is a need to restate and strengthen consumer rights. However the status of any format shifting exception needs to be considered in conjunction with Questions 54 & 55 on ‘contracting out’.
Question 9: 
The Full Federal Court  in National Rugby League Investments Pty Limited v Singtel Optus Pty Ltd [2012] FCAFC 59 effectively restricts the time-shifting exception to an analogue context, conceiving the act of making copies in terms of the limitations of owning and sharing of access to physical copies. Given that Australian digital copyright law was motivated by a desire to be technologically neutral, and not be limited to technologies known at the time when those rights and defences were enacted, the exception now needs redrafting to allow for current digital storage practices.
The exclusive rights granted to broadcasters make sense with reference to the Australian Broadcasting Corporation Act 1983, Broadcasting Services Act 1992  and the Special Broadcasting Service Act 1991, all of which establish a framework for free-to-air television in Australia. Home recording of broadcasts has been an established practice since the sale of the VCR, and even earlier. As a normative principle, it is very confusing for consumers to be bombarded with messages about the importance of Free TV, and at the same time, be restricted in access to current technologies for recording of the same ‘free’ broadcasts. Whilst free-to-air broadcasting remains a central facility through which Australians access audio-visual content, there is a place for s111 as part of the copyright balance. The technology the user utilizes to facilitate recording  eg, through a cloud service, set top or other recording device, should not matter to the principle that the public should be entitled to access this content, on terms consistent with established practices of home recording of broadcast content.
Over time the private and domestic use provision may become less important with improvements to broadcast operator ‘catch-up services’, as these are effectively an equivalent service to home recording. However there is no legal requirement that broadcasters provide a catch-up service. Some premium content which is high demand, such as key sporting events, are unlikely to be included in these services because of exiting contracts with key sporting bodies and the interplay of pay television and free television agreements. As such it would be premature to suggest that the private and domestic use provision is not required, or to not amend s111 to allow for full digital applicability, including allowing personal recording services and cloud storage.
Question 10: 
Question 11: 
Question 12: 
User generated content (UGC) is not an entirely new phenomenon. However in a digital world UGC is more visible. This has created a perception of potential vulnerability to copyright infringement actions for many kinds of publicly visible online uses. Some popular social media sites have reportedly entered into private arrangements with collecting societies giving them a percentage of advertising revenue for UGC that may entail infringement as an alternative to take-down, however this is occuring without legal oversight.
Consistent with my response to question 7, the attempt to confine a social networking exception to ‘non-commercial use’ is problematic, as is the attempt to read all online social interactions as potential commercial opportunities. In an environment where innovative technologies and new markets are unfolding, reference to the “normal exploitation of the copyright material” is also deeply problematic. Normatively speaking, “normality” is an historically embedded concept. In terms of aspiration, “normal” is in the eye of the beholder. Rather than establishing a clear principle reference to “normal exploitation” simply hides the normative issues that need to be addressed.
Anxieties about the potential for lawsuits are understandable against the backdrop of a decade of vitriol from many quarters over piracy. A “chilling effect” could be claimed as a consequence of the absence of a clear exception. It is also possible that in the absence of an exception platform owners and carriage service providers could adopt an over-zealous approach to users by ordering removal of material in dispute, or pay royalties for uses that are not infringing under Australian law. These eventualities cannot be discounted.
The law should not seek to predict and regulate every form of social interaction, and we do not need new laws for user behavior that it would be infeasible to enforce in a cost-effective manner. Were litigation to be pursued, an intelligent approach to interpretation of copyright infringement, fair dealing and other defences, and assignments of damages for trivial offenders, may be suffice to manage any alleged wrong to copyright owners.
Question 13: 
We have an existing problem with an unwieldy approach to fair dealing evident in the Act, with numerous specific provisions that are unable to generate any clear normative message understandable by the public about what degree of quotation is fair and acceptable as part of everyday discourse, healthy cultural exchange and consistent with free speech expectations of a liberal democracy. Any attempt to differentiate personal uses in “social networking” from other computer mediated communications is prone to difficulty and would add to the confusion.  What would be the normative principle underpinning a new proposed exception? Is it fundamentally different from the normative principles that underpin the other exceptions? This is discussed further in relation to Question 15.
Question 14: 
It is admirable to consider the fit of the law with current cultural practices. It is also desirable that law be culturally inclusive. However seeking to too precisely identify what is a “transformative use and collaborative practice” or the purposes for engaging in these practices is inherently problematic. Any such exercise is likely to be backward looking. The information garnered is simply a description of the current ‘new’ trends and technological practices. Thus such information should not detract from the task of more clearly elaborating the relevant normative principles or cultural goals of copyright.
Question 15: 
Infringement actions for appropriative use are exceedingly rare in Australia. It is not clear if the reason for this is:
•	transformative use does not happen much;
•	it is hard to detect;
•	there is an established practice of seeking licenses from owners;
•	such uses are not considered problematic or wrong by the copyright owners;
•	courts are not considered to be the appropriate venue for resolving these disputes;
•	owners are unable to pursue a remedy for other reasons, such as access to justice issues.
Before embarking on a discussion of the normative principle, regard should be had to what the problem is that needs redress.
In providing an economic foundation to cultural trade, copyright law indirectly operates as a major tool of cultural policy. There may be some anxieties in lawyers engaging directly in all the broader social implications of this role, but to the extent that interpreting rights of necessity involves discriminating between works which can lead to curtailing the expression of infringers, care needs to be taken in maintaining a balanced approach and not unduly shackling the conditions that lead to the production of new works. This discussion needs to be considered in light of the general copyright principles and in particular, of infringement. 
A much neglected issue that it is essential to address prior to discussion of fair dealing and the potential need for any new provision for transformative use is a careful consideration of what is the taking of a “substantial part” under current Australian law.
It needs to be noted that there is now considerable judicial criticism of misunderstandings caused by the statement in University of London Press that “what is worth copying is worth protecting”. If used as a general principle of infringement this obviates the need to consider the taking of a substantial part altogether, and moves straight to a consideration of fair dealing exceptions, repositioned as mere defences to infringement. In Network Ten Pty Ltd v TCN Channel Nine [2004] HCA 14 McHugh ACJ, Gummow and Hayne JJ noted:
17. In Australia, the dangers in the use of the remarks in University of London Press were explained by Sackville J in Nationwide News Pty Ltd v Copyright Agency Ltd as follows:
… If applied literally, the test would mean that all cases of copying would be characterised as reproducing a substantial part of the work. It is therefore unlikely to be of great assistance in determining whether a particular reproduction involves a substantial part of a work or subject matter of copyright…
20. The term ‘substantial part’ has a legislative pedigree. It appeared in s1(2) of the Copyright Act 1911 (Imp) (the 1911 Act). The 1911 Act was repealed in 1956 by the Copyright Act 1956 (UK) (the UK Act) and later excluded from further operation in Australia by s 5(1) of the Act. The inclusion of the term in the 1911 Act had reflected judicial interpretation of earlier copyright legislation.
21. The scheme of the 1911 Act, as with the UK Act and the Australian legislation which succeeded it, keeps separate the concepts of substantial part and fair dealing. Accordingly:
… acts done in relation to insubstantial parts do not constitute an infringement of copyright and the defences of fair dealing only come into operation in relation to substantial parts or more …
It would be quite wrong to approach an infringement claim on the footing that the question of the taking of a substantial part may be by-passed by going directly to the fair dealing defences.
Past judicial insight and treatise reflection on the meaning of piracy is helpful here as it shows the continuity between tests for infringement and a permissive attitude toward transformative use.
The first edition of W.A. Copinger, The Law of Copyright in Works of Literature and Art (London, Stevens and Haynes, 1870) remains of relevance to a discussion of both principles of infringement and transformative use today. On the ‘Principles by which piracy is judged’, he says at 87:
The inquiry in most cases, is not, whether the defendant has used the thoughts, conceptions, information and discoveries promulgated by the original, but whether his composition may be considered a new work, requiring invention, learning and judgment, or only a mere transcript of the whole or parts of the original, with mere colourable variations. (my emphasis).
In essence the discussion of transformative use involves distinguishing new works from piracies, colourable imitations, variations and unfair uses.
The need for specificity about different kinds of cultural expression
A more sophisticated address to copyright principle and transformative use requires a more careful consideration of the particular category of work or other subject matter and the cultural milieu in which the particular copyright work will be interpreted. The reality is that general principles such as the idea/expression dichotomy and substantial part need to be understood in the context of the particular medium of expression.
Literary works
Transformative uses of literature are very common. Motivations for engaging in creative uses of mega-successful cultural works vary, however it includes versions of:
•	Reappropriation literature retelling stories from counter perspectives for both serious political reasons and for entertainment.
•	Fan fiction, which draws upon and extends narratives originating in successful fictional works and in particular, series.
•	Unauthorised prequels and sequels, which extend engagement with key narratives over different time frames and locations.
•	Parodies and satires.
Some transformative works could be considered as potentially infringing forms of cultural expression. However as is well known, in Australia copyright is only afforded to works and the form of expression of the work, not to characters, scenarios, ideas or formats per se (Nine Films & Television Pty Ltd v Ninox Television Limited [2005] FCA 1404; Telstra Corp Ltd v Royal & Sun Alliance Australia Ltd [2003] F.C.A. 786). There is considerable academic discussion of this topic largely inspired by US litigation, however there is a question about the degree to which perceived problems facing transformative literature are largely more ‘academic’ in nature.
Controversial US decisions regarded the legality of attempts at what could loosely be called transformative literature include Twin Peaks Productions, Inc. v Publications Int'l, Ltd., 996 F.2d 1366, 1377 (2d Cir.1993); Dr Seuss Enterprises, LP v Penguin Books USA, Inc 109 F 3d 1394 (9th Cir, 1997); Castle Rock Entertainment, Inc v Carol Publishing Group 150 F3d 132 (2d Cir. 1998); Suntrust Bank v Houghton Mifflin Co 136 F. Supp. 2d 1357 (N.D. Ga. 2001); reversed on other grounds, 268 F.3d 1257 (11th Cir. 2001); Warner Brothers Entertainment INC & JK Rowling v RDR Books And Does 1-10, 575 F Supp 2d 513 (SDNY, 2008); Salinger v. Colting, 607 F.3d 68 (2d Cir, 2010). Some of these cases involved substantial takings and paraphrasing of original expression. Takings were also seen to interfere with the owner’s right to make derivative works.
Our adaptation right is not equivalent to the US right to make ‘derivative works’. The later approach tends towards allowing the propertising of fictional characters and settings. Anglo and Australian law more closely connects the content of the copyright to the particular form of expression. Infringement of a character is unlikely to be arguable unless the reimaging also involves significant takings of the original form of expression. The less direct takings of original expression, the less likely our court would find any objective similarity between the two works, even though they may share a literary heritage.
Thomas Keneally’s The Chant of Jimmy Blacksmith, 1972 (adapted into a film by Fred Schespi in 1978), has been recently criticised for the representation of Aboriginal people, the sexuality of white women, ‘mixed race’ relationships and frontier violence. (eg. Djon Mundine, ‘The Ballad of Jimmy Governor’ Artlink Vol 32(2) p32. Keneally himself has said were he to write the novel again, he would not seek to write it from the perspective of Jimmy Governor. (Roger Stitson, ‘The Chant of Jimmy Blacksmith’, The Age, 19 Oct 2004. Would the current law ‘chill’ any attempt at an unauthorised rewriting this important literary work?
It is quite hard for an original Australian work to be published, especially by a first time author (Economic Analysis of Literary Publishing in Australia. Final Report, SGS Economics and Planning Pty. Ltd. 2008). A poor effort at a transformative work is unlikely to attract much interest by an Australian publisher. Further were self-publication be pursued, it is unlikely to generate sufficient interest to warrant legal action by an owner. The market, as well as the law, can be relied upon to ‘correct’ literary mistakes.
It is highly unlikely that the current Australian law would prevent an author from writing, or a publisher from releasing, an unauthorised version of The Chant of Jimmy Blacksmith, although received wisdom based on retellings of US law may impact on such a venture.  Although the original work draws upon real historical characters and events, even in a retelling close to Keneally’s version, the greater the literary merit of the ‘transformative’ account, the more likely it would find a publisher, and the less likelihood there would be any objection by Keneally.
It is worth noting that many of the US actions were not brought by the original author of the work, but by estates seeking to maximise potential revenue from their inheritance. As an assignable right and one that extends post-mortem, eventually copyright owners will have little connection with authorial communities and the ethical arguments relevant to authorship of particular genres which might more naturally and appropriately regulate appropriative practices. As such opportunistic litigation might be pursued in Australia. It is hypothetically possible that a court would consider a transformative work to infringe, but the likelihood of this outcome remains small in regard to any competent literary effort for which there would be a market.
Dramatic works
Disputes between playwrights and directors working in the Australian theatrical community, over creative revisions of dramatic works arise from time to time (Wendy Frew, ‘Dobber Brings Down Curtain on Belvoir’s Take on Miller', Sydney Morning Herald, 17 Oct 2012; Brent Salter, Copyright, Collaboration and the Future of Dramatic Authorship, Platform Papers Currency Press 2009; Matthew Rimmer, ‘Heretic: Copyright Law and Dramatic Works' (2002) 2 QUT Law And Justice Journal 131-149).
These instances generate significant debate within theatrical communities (and beyond) about the appropriate boundaries of artistic freedom in Australia. Disputes that are unable to be mediated between parties are frequently resolved with reference to contract and licence agreements that usually empower the owner of the dramatic copyright with strong moral rights-like powers to protect the integrity of the original work. These practices predate the introduction of moral rights in Australia, and in industry discussions with Brent Salter and Kathy Bowrey, agents working for playwrights have suggested that the introduction of moral rights did not change local practice much or strengthen existing bargaining positions of authors, beyond creating another layer of complexity in licensing.
In most cases unauthorised versions of plays involve too substantial a use of the original work to be considered as transformative use. As such a licence to use the dramatic work would always be required. Thus it is questionable whether any new provision is likely to be of direct value to directors or dramaturges making unauthorized changes to texts.
A transformative use provision could indirectly influence the exercise of contractual rights by encouraging a more liberal attitude toward reinterpretations and unauthorised adaptations by strengthening resolve to produce creative reinterpretations, especially of foreign works, to make these works more accessible and relevant to Australian audiences. If so, I would welcome that development.
Artistic works
Since the 1990s, discussion of transformative use in art has been dominated by the persona of Jeff Koons because of his high profile confrontation with copyright owners and the law, especially Rogers v Koons 960 F.2d 301 (2d Cir. 1992); Blanch v. Koons. 467 F.3d 244 (2d Cir. 2006). This has included strident criticism of copyright as a major constraint on creativity and freedom of artistic expression. See generally, Kathy Bowrey ‘Copyright, the Paternity of Artistic Works and the Challenge posed by Postmodern Artists’ (1994) 8(3) Intellectual Property Journal 285-317.
However despite much discussion of postmodernism, appropriation and the legitimacy of digital processes in the creation of art in Australia, with fears that copyright would stifle legitimate new artistic practices, there has been no case law here. Artists are commonly advised that appropriations, where the original work is clearly identifiable, is likely to constitute copyright infringement (see for example, ‘Hou Leong. Interview with Tony Davies’, Artlines, Issue 1, 1995). While this could mean that the law has constrained the development of appropriation-based artistic practices, casual viewings of contemporary art exhibitions suggests this is not the case. Sampling, cut-ups, quotation, appropriations and reappropriations are common and my casual discussion with artists suggests licences are not necessarily sought, with little consequence for artists. It may be that there is a more generous attitude toward appropriation practices in artworlds where income is primarily generated through sale of ‘originals’, and large runs of reproductions are rare.
The most contentious recent US ‘fair use’ case involves Shepard Fairey’s use of photographer Mannie Garcia’s image of Barack Obama, owned by Associated Press, in making his strikingly stylised unofficial ‘Hope’ poster for the 2008 election campaign. (see Iggy Pop, Shepard Fairey, Interview Magazine, September 2012). Like Warhol and Koons before him, Fairey also plays with the distinction between high art and commercial art, reproducing his images on stickers, posters and t-shirts, some of which, including ‘Hope’ t-shirts are sold through his company, Obey Giant. The litigation against Fairey, but not his company was recently settled following Fairey’s admission to destroying evidence for which he received a fine and probation. However he maintains his use constituted a fair use. In a statement, ‘The Importance of Fair Use and Artistic Freedom’, Huffington Post 7 September 2012 he writes,
Throughout my artistic career I have seen art as a powerful tool of political speech and social commentary and I try to use my art to stimulate a constructive dialogue. I believe in intellectual property rights and the rights of photographers, but I also believe artists need latitude to create inspired by real world things, just as news organizations need to use exception to copyright in order to report the news. The ability for an artist to creatively and conceptually transform references from reality is essential to their artistic commentary on the realities of the world. If artists find that freedom curtailed, it is not just artists, but all of us, who will lose something critically important.
It is unfortunate that his actions in tampering with evidence prevented a full discussion of transformative use and the justification and status of this kind of appropriation before the US courts. His explanation is a rather conventional one within art communities and connects with the existing reasoning in Blanch v Koons, where the court drew attention to the different artistic purposes of photographer Blanch and artist Koons.
The idea/expression dichotomy is not a particularly helpful principle for determining what constitutes infringement of artistic works. It also needs to be remembered that there is no adaptation right in relation to artistic works. Digital technologies are ubiquitous tools for the creation of art, and we deserve laws that support diverse kinds of artistic practice. There is a capacity to discriminate between piratical and transformative works where the later is work that has its own distinctive identity as imagery and integrity as art as defined with consideration of the artistic purpose. In cases of transformative use, the reference made should not directly compete with or generally negatively affect the reputation of the source artist.
Some professional artists may not especially appreciate ‘amateurs’ and commercial artists who are outside of conventional artworld communities from using their original works as raw material for creation of new works. However digital painting tools are already ubiquitous and it is impossible to control how they are used in the creation of new artworks. It is not the case that any use is permitted, as the ordinary tests for infringement would still apply. However in cases where a use may be considered as substantial, it would be culturally healthy to hear a legal debate about the respective merits of the creations as works of art. This can only lead to a stronger legal appreciation of the subtleties of this form of expression.
•	Indigenous appropriation
In an Australian context appropriation of Indigenous art is a highly sensitive issue. Use of “indigenous” imagery, styles and symbols is often considered as a continuation of the colonial project. These uses may involve a serious transgression of Aboriginal law and cause deep offence. Recent examples include Vesna Tenodi’s “Wanjina” sculpture at Katoomba and Rodarte’s Aboriginal inspired fashion range, which was in fact based on licensed artworks. Whilst it is possible that Rodarte would not need to licence Aboriginal works if there were a transformation right in Australia, the tenor of the publicity generated shows there is a political sensitivity towards ethical practice and the need to show respect for Aboriginal peoples that affects conduct in the marketplace. At the time that is was thought the works were not licensed, the controversy was covered in the Australian Press, the Washington Post and major metropolitan UK newspapers. The Tenodi example was resolved through use of planning laws. Other laws, such as existing consumer laws, could also be used to control appropriations by non-indigenous people to prevent ‘passing off’ work as Aboriginal, where there is in fact no connection with Aboriginal peoples. See Kathy Bowrey, ‘Indigenous Cultural and Intellectual Property’ in (eds) Bowrey K, Handler, M & Nicol D. Emerging Issues in Intellectual Property (Oxford University Press, Melbourne, 2011). pp. 46-67.
Balancing the desire to protect culture, it also needs to be recognised that reappropriation, editing and quotation practices are common in contemporary art, including “urban art” made by Aboriginal artists. Challenging dominant representations of identity, race and racist categorisations with the artworld are recurrent themes, and sometimes this involves creative juxtapositions and reappropriations. See for example the Queensland ProppaNOW collective and collaborations that ensued between Imants Tillers and Michael Nelson Jagamara, from Tiller’s unlicensed use of Jagamara’s work. See Chloe Mandryk, ‘The Loaded Ground’, BMA Magazine, 28 August 2012. Within Australia there is a lively and vibrant debate about what kinds of Indigenous references are appropriate, under what circumstances. This is an important discussion we need to have to develop a mature postcolonial culture. A transformative use exception might be helpful in supporting and extending this discussion from one with elite art worlds into the mainstream.
Musical works and sound recordings
Three issues complicate discussion of transformative use in relation to musical works and sound recordings.
Firstly, the Copyright Act 1911, through establishing a statutory licensing scheme, facilitated the making of mechanical recordings without permission from the copyright owner, as long as the prescribed notice and royalty payment was made. This, and the associated recognition of performance rights (Gramophone Co. Ltd. v. Stephan Cawardine and Co. [1934] 1 Ch.450; Chappell v Associated Radio Co of Australia [1925] VLR 350; Australasian Performing Rights Association Ltd v 3DB Broadcasting Co Pty Ltd [1929] VLR 107) created an infrastructure that facilitates the licensing of works. This has indirectly encouraged a culture of licensing samples, without recourse to discussion about the appropriateness of the particular use made of original musical works and sound recordings. Industry practices have developed without much engagement with legal principles around creator’s rights and public discussion of what kind of taking constitutes an infringement under Australian law.
Secondly, use of musical themes, melodies, motifs, and parts of earlier works has a long heritage in all musical genres: folk, classical, jazz, modern, rock, reggae, electronic, hip hop and so on. As Johnson Okpaluba notes at p.379, “The very fact that musicologists use a number of terms to describe composer’s use of existing works, such as borrowing, transformative, imitation, quotation, allusion, homage, influence and indebtedness, indicates the widespread nature of borrowing within music”. ‘”Free-riding on the riddim?” Open Source, copyright law and reggae music in Jamaica’ in L Bently, J Davis & J Ginsburg, Copyright and Piracy. An interdisciplinary Critique (Cambridge UP, 2010) p. 374. Digital sampling is a particular kind of technological practice, but it is not unrelated to other long-standing musical practices of quotation.
Thirdly, in infringement actions causation evidence is often unsatisfactory, with creators unable to satisfactorily explain their precise process of creation and musical influences. See eg. Francis Day & Hunter Ltd v Bron [1963] 1 Ch 587; Larrikin Music Publishing Pty Ltd V Emi Songs Australia Pty Limited [2010] FCA 29; Bright Tunes Music Corp. v. Harrisongs Music, Ltd. et al [1976] 420 F. Supp 177; ABKCO Music, Inc. v. Harrisongs Music, et al (1981) 508 F. Supp. 798;[1983] 722 F.2d. 988; Gondos v. Hardy (1982) 38 O.R. (2d) 555; 1982 Ont. Rep. LEXIS 433. The tensions underpinning litigation suggests a need to consider the appropriate place of law in creative practice, as judicial commentary does not create an impression that musicians are deliberately and routinely flouting legal obligation. Rather where there are legal uncertainties surrounding causation these tend to flow from the spontaneous circumstances of many creative acts, the mysteries of human memory and the limits to any musician’s capacity, in a litigation context, to retrospectively reimagine the precise historical conditions that led to creation of the particular work under scrutiny. Perhaps the ability to identify and recollect influences also relates to how ‘intellectual’ an approach is taken to making music by an artist. However there are arguably far less problems in identifying sources in sample-based music. For this reason there is a question whether digital sampling should be considered as a ‘special case’ of transformative use, because it is possible to objectively track use of source material.
•	Musical works and sound recordings: Principles of infringement
The idea/expression dichotomy is hard to apply in relation to music, however definition of the expression is reflected in the distinction between creation of a work and mere performance. For example, in Coffey v. Warner/Chappell Music Ltd [2005] EWHC 449 (Ch); [2005] FSR 34; [2006] E.M.L.R. 2 the vocal expression, pitch contour and syncopation of the singing of the phrase around the words “does it really matter" were not found to have sufficient substance to warrant protection as a musical works. These stylistic elements were treated as merely performance aspects. See also CBS Records Australia v Gross (1989) 15 IPR 385; Hadley v Kemp [1999] EMLR 589. However the distinction between creation and performance of a work is a slippery one.
In some cases transformative uses could be characterized as ‘merely’ different arrangements or different performances or stylisations of the original musical work. This tension would need to be considered in crafting any new exception. As with cover versions, the more a work deviates from the original, the less likely it is to constitute an infringement. However there is no need for a fair dealing exception in these cases. Thus the dilemma for any new exception is to distinguish a musical work that might currently be considered a ‘transformative’ derivative work from an infringing work, whilst retaining the traditional copyright distinctions between creating, arranging and performing a work. In application, any test is further complicated because there are so many traditions and practices adopted within different musical genres. Music genres are themselves only loose categorisations, that arguably owe more to marketing practices than to inherent fundamental differences between kinds of musical creations.
In Bridgeport Music In v Dimension Films 383 F.3d 390 (6th Cir. 2004), based upon a literal interpretation of the relevant legislation, the court suggested “Get a licence or do not sample” as the appropriate standard. This is attractive because it avoids the need for ponderous and difficult demarcations. However as noted above, copyright is not usually afforded to bars or mere samples of music.
The Australian legislation arguably lends itself to a similar narrow interpretation to Bridgeport, however the High Court has suggested a narrow and legalistic approach leads to overprotection of ‘other subject matter’. In deciding the appropriate scope of protection of a television broadcast McHugh ACJ, Gummow and Hayne JJ in Network Ten Pty Ltd v TCN Channel Nine [2004] HCA 14 at [11] restated the importance of two well-established copyright principles, “those concerned with the significance of copying, and with the taking of a substantial part of the protected material.”
•	Musical works and sound recordings: the legitimate interests of the copyright owner
There are a number of ways of considering this aspect.
It could be argued that the ‘legitimate interest of the copyright owner’ needs to be considered in light of the established licensing schemes and the privileged role of mechanical recording and performance rights under the Act. Does the establishment of licensing infrastructure signal that it is reasonable for owners to expect recompense for sampling?  
The problem with this presumption is that the intention of this scheme was not, per se, to require compulsory licensing of transformative uses. The provisions were designed to address the consequences of Boosey v. Whight [1900] 1 Ch. 122 and the issues raised in the Berlin Revision of the Berne Convention in 1908. See Kathy Bowrey, ‘Fertile Ground: Law, innovation and creative technologies’, in (ed) Fiona Macmillan, New Directions in Copyright Law: Volume 5 (Edward Elgar, 2007). p162. It related to facilitating access to musical works and recordings to assist in the development of new markets for recorded music.
It could also be argued that industry practice has now created an expectation of licensing. Preference of the major labels is often to license. For example, though the 2 Live Crew case, Campbell v Acuff-Rose Music, 510 US 569 (1994) is cited as a key ‘transformative use’ case, the band had originally requested a license, in preference to reliance on any fair use right. However in finding fair use, arguably the decision underlines the extent to which industry practice actually departs from legal requirements, extending owner rights beyond ‘legitimate’ expectations.
Further, there is also a need to differentiate artist and label attitudes toward sampling, which can greatly vary. For example, DangerMouse’s 2004 The Grey Album, a mash-up of Jay Z’s The Black Album and the Beatles LP The Beatles, known as The White Album, was reputedly not considered as problematic by Jay-Z or Paul McCartney, although EMI sought to restrain its distribution.
The law is most familiar with the owners that litigate to enforce rights and redress perceived wrongs. However not all artists (or indeed labels) champion copyright over creative or transformative use. Diversity encompasses the strong copyright approach of Metallica, to Radiohead’s free downloads and pay what you want approaches, to GirlTalk’s unlicensed mash-ups released through distribution label Illegal Art. In referencing the legitimate interests of owners it is important to keep in mind the full diversity of creator and owner expectations and attitudes. Artist complaints about music collecting societies practices for distributing royalties to artists is also a current feature of the copyright landscape ‘Artists angered by copyright plan’, BBC News, 11 July 2012).
On the other hand as Okpaluba notes, contrary to many predictions, US decisions supportive of sampling did not kill hip-hop music and culture. A strict legal requirement of paying for samples does not necessarily impede music production, it can however change the character of the music, where it proves too costly to pay for large numbers of samples.
Given that the law, (at least in aspiration), has the potential to impact and change artistic practices, there is a baseline question here about the justifications for hierarchies established between different kinds of creators and creations. Though there is some case for treating digital sampling differently to other kinds of transformative uses, it would be difficult to philosophically justify carving out special treatment of music sampling from other circumstances. It would also add another layer of complexity to the Act. As such it is not a particularly desirable outcome to treat musical works and digital sound recordings differently to other copyright subject matter.
Cinematograph Film
Audio-visual mash-ups and creative re-imaginings of popular story lines have become common practice over the past decade, including productions by amateurs, fans and professional film-makers. They can encompass reuse of both documentary and dramatic material. Issues surrounding film rights are often more complicated than other media forms because of the number of underlying copyrights and rights holders that can potentially be affected by any subsequent re-use of excerpts of a film.
With film dramas, a transformative work requires a recreation of a new film narrative. See for example, the discussion of Edward Sharp’s Mad Max Remix and potential legal issues in Emily Hawcroft, ‘Fair or Foul Dealing? Parody, Satire and Derogatory Treatment’, IP Forum Issue 87, Dec 2011. As re-purposing of a significant amount of the sounds and or images embodied in the original film is often required to tell a new narrative, film mash-ups are likely to infringe the film copyright absent a fair dealing exception. However a mash up is less likely to infringe rights in any underlying literary and dramatic work if tells a new story or significantly alters the original story line. Consistent with the above discussion of Bridgeport in interpreting whether or not a substantial part has been taken. care needs to be taken to consider the respective cultural objectives of the works an move beyond a rudimentary consideration of the degree of technical similarity between the two works. However the absence of relevant case law on the matter creates uncertainty about what kinds of uses are permissible.
In a detailed discussion of film rights clearing practices Pat Aufderheide and Peter Jaszi outline the high costs and detrimental affects of licensing culture on independent professional documentary film making in the US (Untold Stories Creative Consequences of the Rights Clearance Culture (Centre for Social Media, 2004). There is no equivalent Australian study, however this work suggests we should, so far as possible, maximise ‘fair use’ provisions and resist adoption of unnecessary licensing schemes in order to facilitate creation of culturally valuable audio-visual works, as licensing requirements are too complex and prohibitive for many filmmakers to deal with.
These authors also suggest the need for discussion with prominent professionals about ‘best practice’ models and the need for resources that assist in conveying a better understanding of ethical and legal practices for film-makers. Publication of best practice models is worth consideration in relation to all copyright subject matter to clarify the status of appropriative uses under Australian law, given the current difficulties in understanding the law. A practically focused explanation of current best practice informed by prominent professionals, rather than a legal-technical centred explanation of the available rights penned by lawyers, could help resolve some uncertainties for those seeking to do the right thing. This might be beneficial whether or not there is a particular recommendation made about a new transformative use provision.
Question 16: 
The modern evolution of literary property rights came from the desire to decouple the grant of exclusive economic rights from earlier regimes based on licensing and censorship of publications.
It is philosophically inconsistent with traditional copyright jurisprudence and liberal democratic principles of freedom of expression to allow authors to publish works, that is, release them to the public, then permit them to regulate delimit and curtail the terms of other’s cultural engagement with the work, beyond protection of legitimate economic and reputational interests as protected through the law of infringement, moral rights and defamation law. The clearest statement of this can be found in Time Warner Entertainment Co Ltd v Channel 4 Television Corporation PLC (1993) 28 IPR 459, where at the request of Clockwork Orange Director, Stanley Kubrick, the film had been withdrawn from screening in the UK. In deciding whether there were grounds for an injunction to prevent the Channel 4 discussion of the film showing excerpts, Henry LJ noted at 468:
As Lord Atkin said in a different context: “The path of criticism is a public way: The wrong-headed are permitted to err therein...” Ambard v AG for Trinidad and Tobago [1936] AC 322 at 335). “Fair dealing” in its statutory context refers to the true purpose (ie the good faith, the intention and the genuineness) of the critical work--is the program incorporating the infringing material a genuine piece of criticism or review, or is it something else, such as an attempt to dress up the infringement of another's copyright in the guise of criticism, and so profit unfairly from another's work?”.
Any new “transformative use” exception can draw upon this logic. For copyright purposes a transformative work could be defined as a form of expression that, notwithstanding use of or reference to prior works in its creation, stands alone in terms of exhibiting its own artistic integrity and identity.
Assuming existing rights were to remain there would be some overlap between any transformative right, and ss41, 103A criticism and review, and ss41A, 103AA parody and satire. Consistent with the general approach of the Act, overlaps are not generally considered problematic. The “fairness” of the dealing would also assist determining boundaries between acceptable artistic practice and infringement.
Question 17: 
Under Australian law, copyrights are not natural rights. Exclusive rights were justified because the rights serve a larger cultural and economic logic by providing an incentive to invest in the creation and dissemination of particular culturally important forms of expression. This broader logic and rationale of copyright needs to be maintained if the law is to engender the normativity required for it to be understood and function rationally.
For copyright to continue to fulfil it's historic and public purpose it is important that it function in a manner that is inclusive and supportive of cultural vibrancy, spontaneity, and freedom of expression.  If there is a legitimate cultural justification for permitting transformative use, any such right should not be then diminished and curtailed to non-commercial uses. This restriction would be philosophically  unwarranted. Consistent with the discussion of Questions 7 and 12, non-commercial use is a problematic concept.
To limit any such new right to non-commercial uses sends the message that the copyright owner is prima facie entitled to recompense for any use of their work, without requiring any consideration of the context and significance of the use and the cultural value of the practice. This logic is not supported by copyright history that was supportive of fair use. Protection was only afforded to “works”, not to works dissected into recognizable units of ‘raw material’, that can be valued and licensed discreetly. (see K Bowrey, ‘On clarifying the role of originality and fair use in 19th century UK jurisprudence: appreciating “the humble grey which emerges as the result of long controversy”’ in (eds) Lionel Bently, Catherine Ng, Giuseppina D’Agostino The Common Law Of Intellectual Property: Essays in Honour of Prof David Vaver (Hart Publishing, 2010) pp45-69.
True transformative works are not substitute works for originals. They are not piracies because they serve a different cultural function to the original. As such they should not be considered as affecting the legitimate interests of copyright owners and any new provision should be compliant with the Berne three-step test. There is no reason to make further qualifications about the normal exploitation of the copyright work within the provision itself. References to such technicalities adds unnecessary complexity and only serves to confuse the public, without providing any normative guide as to what would be appropriate or acceptable practice.
Question 18: 
Attribution/False Attribution
Transformative uses potentially cover a wide range of contexts, some of which are akin to kinds of criticism and review or parody and satire, to other kinds of expression where understanding the specific original cultural reference or quotation is not necessary, such as Blanch v. Koons. 467 F.3d 244 (2d Cir. 2006). Given the diversity of practices and artistic intentions, it is not always reasonable nor practical to require attribution of original source material in cases of transformative use. However given the potential to overlap with existing fair dealing provisions for criticism and review and parody and satire, attribution would already be required in cases where understanding the identity of the original work is a necessary part of understanding the transformative use.
Integrity
There is existing case law relevant to this consideration, albeit considering different legislative provisions to the current Australian law: Schott Musik International GmbH & Co v Colossal Records of Australia Pty Ltd (1997) 145 ALR 483 – concerning the meaning of ‘derogatory treatment’ under s55; Confetti Records v Warner Music UK Ltd [2003] EWHC 1274 (Ch) – concerning ‘derogatory treatment’ under Art6bis; s.80(2)(b), CDPA 1988.
Given a transformative work should be required to have its own artistic integrity, it should not automatically be the case that the transformative use affects the integrity of the original or source work. Indeed it may not be evident what the work is that has been ‘transformed’. Existing approaches to authorial “honour and reputation” provide a tool for consideration of potential harms. As such no additional amendments are necessary.
Question 19: 
Question 20: 
Question 21: 
Question 22: 
As has been well documented and much discussed within Australia, Aboriginal and Torres Strait Islander art and culture has been collected, archived and controlled by various parties leading to copyright ownership frequently vesting outside of the community. It is not uncommon for Aboriginal people to seek access to official archives and collections in order to obtain photographs of family members as there are no other images available to the community. Digitisation projects are common and some of these are in collaboration with custodians eg. Projects conducted by University of Sydney ARC Indigenous Fellowship holder Dr Joseph Neparrŋa Gumbula. However material is also often used in ways that causes serious offence to some (but not always all) cultural owners.
The practice of public collections, funding bodies and broadcasters and work by Terri Janke (and others) on cultural protocols has significantly improved the current situation leading to a clearer understanding of appropriate ethical practices by institutions. However the situation with use of material by private individuals and that held by overseas institutions remains problematic. See Kathy Bowrey & Jane Anderson, ‘The Politics of Global Information Sharing: Whose Cultural Agendas are Being Advanced?’ (2009) Social and Legal Studies Vol 18(4), 1-26.
Against the backdrop of the history of colonisation, the attempt to revest cultural control to Aboriginal and Torres Strait Islander peoples is still a relatively recent initiative. Any new proposed exception needs to consider the potential to detrimentally impact on Indigenous communities and frustrate the establishment of more culturally sensitive norms.
Question 23: 
Literature about orphan works clearly demonstrates frustration at the inability to clear material through lack of available information about the current owner. However some of this literature blurs the distinction between cases where one is unable to locate the owner, and where there was never any discussion or notated agreement as to agreed uses, future uses or eventual ownership of works in the first place. In these cases arguably the purported copyright owner only has a bare licence. From my discussions with media owners dating from the early 1990s, it is apparent that until ‘multi-media’ arrived, it was often not a priority to consider copyright issues beyond the obtaining of a licence for the immediate use foreshadowed, for which, if there was a written agreement, it is often no longer accessible. Throughout much of the 20th century independent contractors were often employed on an ad hoc basis with little formality. In a pre-digital world, storage of media and business records was also expensive and relevant information and expertise has been lost. Further, the publisher remedy of producing licence agreements assigning all current and future rights has simply disenfranchised the original authors. Any new income generating scheme could well inflame tensions surrounding the lack of bargaining power of authors at first instance, whilst also leading to overly optimistic beliefs about the value of archival material today.
There is a need to simplify access to orphan works to prevent ‘in copyright but out of circulation work’ being lost to generations. See Kathy Bowrey, Book review: How to Fix Copyright by William Patry. (2012) 34(2) Sydney Law Review 391-4; Paul J Heald, ‘Property Rights and the Efficient Exploitation of Copyrighted Works: An Empirical Analysis of Public Domain and Copyrighted Fiction Best Sellers’. There is however a need to distinguish the respective entitlements and interests facilitated by any such licensing scheme.
Consistent with my response to Question 22 there are particular problems and sensitivities in further liberating access to material concerning Aboriginal and Torres Strait Islander people without the full consent and agreement of the subjects and community owners surrounding the particular use. Further whilst Australian public institutions may be expected to conform to current sector expectations and relevant codes of ethical practice, the same cannot be assumed of overseas institutions, private collections and the general public. Any Australian scheme has to take into account international implications, in particular for Australian Aboriginal and Torres Strait Islander peoples.
Additional issues for film and television broadcasts
Industry interviews conducted by Michael Handler and myself in 2009-2011 suggest that there are longstanding industry conventions and contractual conditions (actor residuals) that are currently preventing the re-screening of Australian drama, especially on television. This was suggested to be a much larger problem that clearing copyright as it is easier to locate the owners of copyright than it was to locate actors and their current agents. Reforms to copyright law may not achieve objectives unless regard is also had to the intersection of copyright with other industry regulation and practices.
Question 24: 
Disputes as to ownership
Authors may have legitimate privacy concerns surrounding publication of their work. For example, unpublished works by one Aboriginal artist found their way into collection of a Regional Art Gallery, gifted by an art dealer under a government cultural gifts program. Some of this work has subsequently been exhibited, causing distress and embarrassment to the artist. Ownership of the chattel property and any assignments are unable to be verified, absent engaging in legal action. Arguably exhibition of this unpublished material constitutes a breach of copyright and breach of confidence. Similar problems and concerns over potential exploitation or Aboriginal and Torres Strait Islander artists are more likely to manifest with any system that further liberalizes access to works.
As part of consideration of establishment of an orphan works scheme the constitution and funding of an alternative dispute mechanism to resolve the neighbouring issues around ownership of works needs to be considered. Whether a special venue is required to address access to ‘Indigenous’ content in particular warrants public discussion. There are far greater sensitivities surrounding unauthorized use of this material, and there are more likely to be underlying disputes as to ownership and assignment of rights.
Ability to claim
Current recommendations tend to limit revenue available to authors where they fail to claim in a ‘reasonable time’. Clearly the scheme needs to operate under conditions of economic certainty. However corporate copyright owners are likely to begin with advantages including familiarity with the general operation of the scheme, access to legal advice, considerable administrative resources to routinely follow up the register. This is not the same situation for legally uninformed authors, many of whom are sole traders with little administrative support. There is already considerable literature suggesting there are real access to justice issues for artists. It would be unfortunate if any new scheme did not appreciate the different resources of different classes of copyright owners and reflect this in operation. Given that in the case of orphan works one cannot know if the owner is a corporation or an individual, reasonableness should err on the side of generosity.
Unpublished works
Access to new and unpublished work of notable or famous authors is much desired by academics and other commentators. Copyright can also be used to control reputation and restrain legitimate and often critical cultural discussion and engagement. Using copyright to stifle literary discourse surrounding important works is a highly contentious issue, in particular where the ‘unpublished’ work is accessible in public archives, but then treated as unpublished for copyright purposes. See Salinger v Random House 641 F. Supp. 2d 250 (2009).
Any such exception would need to clearly differentiate the status of published and unpublished works, and clarify what constitutes publication. The right to publish orphan works needs to be consistent with current law that restricts dealings with unpublished works. See British Oxygen Co Ltd v Liquid Air Ltd [1925] Ch 383.
Unfortunately the existing Australian law is not particularly clear as to what constitutes publication. See Commonwealth v Fairfax (1980) 147 FLR 39; Hubbard v Vosper (1972) 1 All ER 1023. The existing common law approac to determining what constitutes publication is arguably far too vague and fact dependent to suit application to a statutory licensing context. Failure to address this aspect is required to allay legitimate concerns of author and artists about potential erosion of rights inherent in an orphan work schemes. However well executed, this is also a scheme from which creators may financially benefit, although likely returns should not be over-inflated and the costs of adminstering such a scheme also needs careful consideration.
Question 25: 
Question 26: 
Question 27: 
Question 28: 
Question 29: 
Question 30: 
Question 31: 
Question 32: 
Question 33: 
Question 34: 
The Crown copyright exception is too limited to serve all the needs of open and democratic government, in particular the needs of local planning authorities and the need for public consultation over new developments. Copyright limitations mean that local governments will not provide copies of new development proposals to affected communities, instead requiring one-on-one personal inspection of documents during office hours. This is very frustrating and impedes frank and open discussion, contributing to community upset and misunderstandings. There is no justification consistent with good government practice that supports the application of copyright in this manner. Reform is needed to faciliate free and open discourse around planning decisions. There is no public interest in requiring the payment of royalties for such uses.
Question 35: 
Question 36: 
Question 37: 
Question 38: 
Question 39: 
Question 40: 
Question 41: 
Question 42: 
Question 43: 
Question 44: 

Question 45: 
The existing fair dealing provisions are pernickety in character and do not lend themselves to being able to give clear advice to the general public. The absence of any broad normative principles or practical indication as to cultural intent of the provisions impedes understanding of what is ‘fair’.
Inevitably all one can reliably indicate is that any finding of fair dealing will ‘depend upon the particular facts’. This amounts to an admission of uncertainty. In an age of energetic amateur production and concern for distinguishing piracy from legitimate uses, this situation is particularly unhelpful.
One value of the US fair use provisions has been the support for broader cultural discussion around freedom of expression, above and beyond any specific appreciation of the legal character of the rights.
Question 46: 
I would support initiatives to clarify what is meant by “fair” with reference to the CLRC’s proposal at para 253.
Question 47: 
I am generally supportive of inclusion of a right for purpose of quotation. There are various European formulations of such a right. However whilst some proposed formulations draw upon familiar legal norms, they pay no regard to artistic norms and traditions that are used to anchor community discussion of legitimate and ethical artistic practice and make laws normatively meaningful and effective in practice.
The suggested formulation in the Issues Paper which refers to ‘fair practice’ also introduces a legal abstraction to avoid address to normative factors that need to be readily understood by artistic communities in their own terms. It introduces a potential tension between legal and cultural norms; between what the law considers as ‘fair’ and what distinctive artist communities might recognize as such. Further as discussed in Question 14, what is considered as fair practice already differs across medium and genres. This difficulty is being glossed over or ignored here.
For this reason reference to the cultural purpose of the provision, (ie. an indication of what would be fair practice), would be more helpful to the public.
There is some overlap with the concept of transformative use and that ambiguity needs resolution. Quotation could potentially encompass many kinds of transformative uses.
Standard publishing contracts
Many publishing contracts require authors to clear copyright material included in the work (usually at their own expense and sometimes where the author payment is limited to one copy of the published work) and to indemnify the publisher in the case of infringement actions. I have also received requests to clear any quote over an arbitrarily decided word length and regardless of the source or context of the use. Current publisher practice thus pass risk to the author, regardless of the actual legal requirements. It is also very difficult to obtain variations in publishing agreements. It is unlikely that a new provision would change publisher practice in regard to requests for indemnification, however a "quotation excpetion" could empower some authors to resist unreasonable publisher requests to clear quotations.
Question 48: 
Question 49: 
Question 50: 

Question 51: 
Consistent with my response at Question 2, consolidation of these provisions would assist the general public in understanding the law.
Question 52: 
Question 53: 

Question 54: 
‘Click-through’ and ‘shrinkwrap’ end user license agreements (EULAs) and terms of service (TOS) are ubiquitous in software and consumer electronics. These contracts have considerable potential to stifle the development of subsidiary, add-on and complimentary ICT products and services by Australian companies. This is the sector of the digital economy where Australian companies are likely to be most competitive.
Consumers often consider EULAs and TOS contracts as ‘boilerplate’ agreements and fail to scrutinize terms. They often include onerous terms that impact on users and affect third parties. Whilst there remains doubts remain about the enforceability of these agreements under Australian law, this legal uncertainty does not prevent their deployment and uptake in practice and their ability to regulate industry behaviour.
It is mistake to consider these contracts as primarily establishing a relationship between the contracting parties. A strategy of these agreements is to use the consumer relationship to regulate the conduct of other business, and through them establish control over digital markets. For this reason agreements are often ‘tailor-made’ and potentially very wide reaching.
Standard terms include clauses that attempt to :
•	alter applicable jurisdiction;
•	exclude rights under copyright law;
•	permit ongoing monitoring of users;
•	permit forwarding and sale of data retrieved to third parties;
•	alter machine configurations including installing unspecified third party software on the machine;
•	prohibit testing or evaluation of software performance;
•	prohibit interference with or alteration to software, including repair;
•	remove liability for negligence;
•	prohibit use of rival products;
•	agree to any future changes to the contract.
To understand the legal significance of these forms of agreement, in addition to a contract law and consumer law analysis, one needs to consider the role of conflict of law (and relevant international private law), trade practices law, competition law, data privacy law, copyright law and tort law.
Tortious interference is one recent creative legal initiative that has been used in the United States to stifle third party competition. See MDY Industries, LLC v. Blizzard Entertainment, Inc. 616 F.Supp.2d 958 D.Ariz., 2009. Here the third party who provided an unauthorized product desired by consumers was targeted for inducing the consumer to break the terms of the EULA. One commentator has observed that this development gives rise to potential misuse by companies who draft EULA terms with no intent of ever enforcing them against the contracting party and only intending to enforce the terms against competition. Jessica Gallegos, ‘A New Role For Tortious Interference In The Digital Age: A Model To Enforce End User License Agreements’ (2011) 38 Fla. St. U. L. Rev. 411. It is possible that a tortious interference action could be taken against those who provide technological tools that empower users to exercise their existing rights under copyright law, where these technologies are not otherwise infringing copyright law. Allowing term of service agreements to override copyright law involves a perversion of public policy and its carefully crafted specific balances.
There are legitimate reasons for wanting to create a closed and carefully monitored programming environment as this can have benefits for consumers, such as more predictability in performance and a more uniform experience of the product. However it is not clear that excluding the operation of copyright exceptions is necessary to achieve the technological goal.
It is important that the copyright law balance not be undermined by terms of service agreements. Agreements that purport to exclude or limit copyright exceptions should, as a general rule, be unenforceable.
Question 55: 
The premise of the second part of this question is wrong. As a general rule, copyright exceptions should not be able to be contracted out of. In a global marketplace, this leads to abdication to the rule of other jurisdictions. If there is a particular case for exemption for the general rule within Australia, it can be made.
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