Marianna Papadakis Reporter

Marianna writes for The Australian Financial Review and Business Review Weekly from the Sydney newsroom. She has an interest in legal affairs, technology and business.

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Quest for better balance in copyright law

Published 26 February 2013 11:24, Updated 27 February 2013 09:19

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Quest for better balance in copyright law

Filmaker CAthy Henkel says navigating a complex copyright system to gain clearance to use clips of filmaker Don McAlpine’s work would have cost more than her film’s entire budget. Photo: Fairfax Media

Advocates for copyright reform converge at an Australian Digital Alliance copyright forum on March 1 to battle out the need for, or the reason not to, reform national copyright laws.

Among them is intellectual property and technology law lecturer at Queensland University of Technology, Nicolas Suzor, who said there needed to be greater balance in Australian copyright law.

This would be struck with an exception to copyright provisions for transformative use where artists use or adapt existing works in their new performance.

This is common in the music industry. Think of the many DJs who use other artists’ songs in sampling and remixes, but also in film, where, for example, documentary makers use clips of existing films or copyrighted footage.

Filmmaker Cathy Henkel is making a documentary about renowned Australian cinematographer Don McAlpine.

Ms Henkel said navigating a complex copyright system to gain clearance to use clips of McAlpine’s previous work took about six months and without the discounting of studios had cost up to $300,000 – far more than the film’s entire budget.

Films like Moulin Rouge required copyright clearance from individual actors, Nicole Kidman as well as separate requests for music and pictures, while a sequence from the 1996 film Romeo and Juliet required the permission of each stunt performer and dancer.

“The bottom line is, if you’re using archive material it’s complex, expensive and requires a lot of time and energy,” she said.

While some leniency in special cases could be a good thing to encourage rather than prevent stories from being made, Ms Henkel was less certain about a blanket fair use rule.

Unions negotiated on behalf of artists to get payments and they deserved to be protected and paid for the re-use of their work.

Mr Suzor said the current system was imposing costs on future creators and transformative use rights should be granted where there was no harm to the value of the original owner’s interests.

“Copyright is supposed to encourage creativity. This is a tax on it.”

He said it was questionable whether Marion Sinclair’s estate should be entitled to a share of profits from Australian band Men at Work’s use of her Kookaburra Sits in the Old Gum Tree tune.

“If such a use could not have been foreseen it could not cause harm to her then interests,” Mr Suzor said. “Copyright lasts longer, it is stronger and is broader in its application.”

But why shouldn’t a copyright owner of any work, be it art, music or film, be recompensed for the use of their material by artists in subsequent works, in the form of licence fees?

In its submission to the Australian Law Reform Commission inquiry into copyright and the digital economy, the Music Council of Australia said the government could help industry create systems to more efficiently identify rights holders, licences and clearances.

As far as transformative uses were concerned, remixes were often as commercially successful as the original work and there was no reason why they shouldn’t have to pay for the use of “raw material”.

“[A]ttempting to draft an exception that allows use of copyright works for transformative uses not only removes the ability for existing copyright owners to be remunerated and removes the market incentive to improve the process of licensing, it creates a significant amount of uncertainty regarding what a transformative use is, versus a non-transformative use,” it said.

Matthew Sag, an associate law professor at Loyola University Chicago, said while rights holders often denied the system needed reform to protect their own pecuniary interests in a strong copyright system, it was clear Australia was not keeping pace with the digital age.

It was not until 2006 when people could legally use VCRs to record their favourite television programs. Search engines like Google, were still illegal under Australian copyright law.

“It’s fine for the likes of Google to negotiate with the government about the parameters of current copyright provisions, but what about the next generations of Googles to come?” he says. “You can’t take another 20 years to approve or disapprove of technology that already exists.”

Copyright in the US didn’t give owners a monopoly right to its every expression in perpetuity.

While Australian law allows people to reproduce works for research, or in parody and satire, Saggs says the far broader “fair use” provision in the US should be adopted in Australia with a test based on the “reasonableness” of the use.

In US it takes into account the nature of the work, how it is to be re-used, whether it is for a commercial purpose and whether it has an effect on the market value or the original work.

While bodies like the Internet Industry Association say fair use has resulted in millions of dollars of innovation in US and thwarted new online businesses in Australia, copyright holders say, if it is introduced fair use will be misused.

Musicians say it could justify file-sharing of unlicensed music leading widespread piracy that undermines growth in the music industry.

Not-for-profit rights management organisations, Copyright Agency and Viscopy said in their submission to the copyright inquiry that a fair use exception would create uncertainty and increase risks of litigation.

“Developing a business model based on the unlicensed use of other people’s content and reliance on an exception necessarily involves risk of litigation if the use is on a commercial scale because the stakes are high. If the exception is a ‘flexible’ one such as fair use the uncertainty and risks are even higher.”

iiNet Ltd chief regulatory officer, Stephen Dalby said the economics in the digital age, meant there would be disruption for people who have built a business around old content models.

“There are a range of middle men that have a part to claim in distribution, warehousing, manufacturing, retail shelves whether its DVDs for personal consumption or movies at a commercial level,” Mr Dalby said.

“Once you move into digital distribution model, that collapses. People are producing their own content and distributing it themselves, with many disenfranchised.

“Hollywood studios want us to be the policemen of infringements. But the world has changed.”

Mr Dalby said he did not believe the argument that “you can’t compete with free, and therefore we should switch the internet off”.

“Look at the size of the bottled water market. The difference between what comes out of a tap is entirely in the packaging.

“Piracy can be an example of market failure and an example of people pinching stuff or market research to see where demand is, if nothing else.

“Digital content, the costs, once it has been produced, to distribute is close to zero and the distribution of it is paid for by the user, like users on iTunes. It’s the same concept of packaging. How easy it is to get and find and play things.”

He said distributors must let go and move into a digital distribution world.

“It can make money and it makes good business sense, whether its gaming, music, movies or bottled water.”

Nicolas Suzor, Matthew Sag, Stephen Dalby will be speaking at Australian Digital Alliance forum “Embracing the Digital Economy” on March 1.

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