Copyright under the pump in PC report

The Productivity Commission’s preliminary report on reform of copyright laws in Australia has come out in favour of the ‘fair use’ principle as an exemption to copyright infringement and, more concerningly for photographers, supports the concept of ‘orphan works’ as a defence against copyright infringement.

The Productivity Commission thinks all these arty types have had it too good for too long!

The Productivity Commission thinks all these arty types have had it too good for too long!

In the report, cutely titled Copy (Not) Right, the Productivity Commission recommended ‘a new system of user rights, including the introduction of a broad, principles-based fair use exception, is needed to help address this imbalance.’

‘Fair use’ would quite possibly legitimise the use of a copyrighted image in a collage created by someone else. All use of copyrighted material would be regarded as ‘fair’ provided it didn’t unreasonably harm the interests of the copyright owner.

The notorious Richard Prince thefts of other photographers’ works is a (moot) example of fair use, which is the guiding principle in US copyright law.

As the commission puts it: ‘The key question is whether transformative works have any appreciable impacts on the demand for, and creation of, the original material. If they do not, then there are few grounds for regarding the use of the original material as an infringement.’

The Productivity Commission – which is effectively a government-funded free market think tank – wants to go further, defining the use of ‘orphan works’ as fair. Orphan works are those for which the copyright holder can’t be found. The Productivity Commission is clearly thinking of older analog works – old books for instance – rather than digital images. This is the critical issue for photographers, as it is too easy for an image to become orphan – detached from its copyright owner – in the digital world. In fact it’s easy for a copyright infringer to deliberately separate an image from its copyright and use it, then claim it is an orphan work. Or an honest mistake.  – So fine for a mouldering 40-year old book, but not so much for an image captured last year and stripped of its EXIF data.


This Richard Prince ‘artwork’ apparently passes the US ‘Fair Use’ exemption on copyright.

The Productivity Commission pretty well ignores the unique position photographers and their works have in the digital world, focussing on the benefits of libraries and universities being able to copy old documents and  books, or musicians being able to use pieces of music.

The Productivity Commission also recommends copyright-protected works that the owner chooses not to make commercially available also be classified as orphan works. This change would deny authors the right to prevent the publication of their works. No dogs in mangers, please!

The overriding consideration would be whether or not the use does any harm.

Nor is the Productivity Commission keen on beefing up penalties for online copyright infringement. It claims that changes to the law to encourage Internet service providers to cooperate with rights holders, as well as increased litigation, have only had a modest impact in reducing infringement. It advises against further strengthening of legislation, instead recommending the timely release of content to Australian consumers at a good price. This recommendation is obviously focussed on TV and film and once again isn’t really applicable to photographic works.

The Productivity Commission also wants copyright to expire after 15 – 25 years, on the logic that the average commercial life of a book, for example, is 1.4 to 5 years. Beyond that, it argues, the harm copyright does by locking things up outweighs any conceivable benefit to the authors in extra income.

Ken Duncan, whose 15+ year old panoramic landscapes are still in demand, is just one creator of a body of works over a lifetime who may beg to differ.

Publishers and authors have been running a feisty campaign against the Commission’s recommendations. Booker Prize winners Thomas Keneally, Richard Flanagan and Peter Carey, along with Tara Moss and Jackie French have railed against the report, as has international publishing giant, HarperCollins.

PwC has also comes down hard against the fair use exception to copyright: A PwC Australia report, ‘Understanding the costs and benefits of introducing a ‘fair use’ exception’, says the costs of changing Australia’s more restrictive ‘fair dealing’ exceptions to US ‘fair use’ would far outweigh any benefits – of which it finds no evidence anyway.

Commissioned by Screenrights, APRA, AMCOS, PPCA, Copyright Agency | Viscopy, Foxtel and News Corp Australia, the report analyses the potential impacts of the introduction of fair use provisions as recommended by the Australian Law Reform Commission, and supported in the Productivity Commission report.

The report found that introducing US-style fair use would cost $1.3 billion due to the collapse of creative companies and increased legal and litigation costs.

The PwC report also points to evidence from Canada that shows a change to its system did far more harm than good for local content creators. But the Productivity Commission recommendations is concerned with effects on big business, like Google Books which benefits from fair use, rather than a photographer operating a small business.

Since the Productivity Commission tackled copyright the photographic industry has been relatively silent on this critical issue while other segments of the creative industries, such as authors and film-makers, rally around and generate publicity for their arguments. A reading of the Productivity Commission report will reveal just how little attention has been paid to photography as a creative industry in its considerations of copyright. It hardly gets a mention.

Chris Shain, the AIPP board advisor for advocacy, is consulting with the Copyright Agency and the Australian Copyright Council next week. The Copyright Agency has been vocal in highlighting the dangers for Australian content creators if the country adopts a US-style fair use arrangement.

Shain, who represented the AIPP during the ALRC inquiry, said the institute will draft a submission on behalf of professional photographers based on these consultations. He said it’s necessary to seek technical legal advice to draft an appropriate submission which will put forth a strong argument rather than battling with an emotional response.

Some of the recommendations, such as more liberal fair use provisions or the orphan works notion may have merit when it comes to old books or pieces of music, but are far more problematic when it comes to digital images.

The commission has called for comments on its draft report by June 3. It will deliver its final report to the government in August.

ProCounter has covered the copyright issue extensively over the past two years. Some previous reports:

Australian ‘orphan images’ law imminent

What’s fair about ‘Fair Use’?

Fair Use fetches artist millions

Copyright breaches – who you do you call?

‘Instagram Act’ potential threat to photographers



One thought on “Copyright under the pump in PC report

  1. As far as I’m concerned, copyright should stay with the author ‘in living memory’; say 75-100 years. None of my photos can ever be retaken, and as I photograph mainly wildlife in the wild, my images are especially current, when animals are nearing extinction/becoming extinct, as is the case all over the world at present with numerous species.

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