The Copyright Agency has launched FreeIsNotFair, a website and campaign advocating against the Productivity Commission’s recommendation to adopt a US-style fair use exception to copyright infringement in Australia.
The new campaign is a response to Wikipedia, which has encouraged Australians to push the government toward introducing fair use.
Fair use permits copyright infringement provided the offender can prove they met a number of ‘fairness factors’, such as transforming the original work into a new one – as is the case of serial appropriator Richard Prince.
Fair use will replace the current fair dealing provision in the Copyright Act, which lists specific defences to copyright infringement – research, study, criticism, review, parody, satire, and reporting the news.
Wikipedia is arguing that somewhat academic point that the internet’s encyclopedia couldn’t be hosted here – not without fair use provisions.
‘Wikipedia is written by volunteers all around the world, including thousands of dedicated Australians. However, without the fair use provision allowed by United States law, important Australian content – such as the ABC logo, or the album cover and audio-sample from the classic song by Men At Work, Land Down Under – could not be included in their articles on Wikipedia. That is, if Wikipedia were hosted in Australia, none of this fair use material could be shown,’ it says.
(Which would only be true if Wikipedia sought and was denied permission to use such content.)
‘Fair use is a US legal principle which allows the use of copyrighted material without the copyright owner’s permission – as long as that use is fair, in light of four factors. We believe that using these copyrighted material on Wikipedia is beneficial, educational, transformative, and importantly, not harmful to the copyright owner’s commercial rights.’
For a few weeks in May, a banner appeared across Wikipedia pages with the message: Wikipedia editors and readers benefit from FAIR USE. But Australia does not. Yet. #FairCopyrightOz
Wikipedia pointed Australians to faircopyright.org.au – a website set up by Electronic Frontiers Australia and the Australian Digital Alliance (ADA). These two powerful and well-funded lobby groups are the biggest advocates of fair use, and act as a mouthpiece for Australian universities, libraries, and content gathering businesses including multinational corporations US-based Google and Facebook.
The website prompts Australians to e-mail politicians and share the campaign using the #faircopyrightoz hashtag.
Responding to Wikipedia’s involvement, The Copyright Agency, a not-for-profit organisation that represents copyright owners, launched #FreeIsNotFair. The campaign is supported by groups including Arts Law, Screen Producers Australia, National Association for the Visual Arts, APRA, Screen Rights, Australian Publishers Association, and others.
Freeisnotfair.org explains how fair use will place the power in the hands of ‘large organisations and big tech companies’, and make it easier for them to use Australian content without fair payment to creators.
‘Our kids should be able to grow up inspired by musicians like Jessica Mauboy and Jimmy Barnes, artists like Tracey Moffatt and Brett Whiteley, movies like Mad Max and Lion, TV shows like Home and Away and Offspring, stories in our bookshops like Possum Magic and Diary of a Wombat and learning from Australian materials like Mathletics and Reading Eggs,’ it says. ‘That’s why creator member organisations across the visual arts, literature, music and publishing are united in their opposition to the changes.’
It also argues that the current system has served content creators successfully for years.
The Australian Institute of Professional Photography (AIPP) board advisor on copyright, Chris Shain, has a video on the campaign website.
Who is fighting for what?
Fair use works to the advantage of content gatherers – international companies like Google, Facebook, and Wikipedia – which are allied with the ‘unlikley bedfellows’ of universities, academics, and libraries through the ADA.
The fair use ‘losers’ are creators – typically small businesses – photographers, authors, book publishers, and filmmakers.
For years there has been a push to introduce fair use in Australia.
Now it’s inching closer to policy, after the Productivity Commission – always on the side of open slather economics – finalised its report and handed it to the Federal Government for consideration.
The gloves are off.
The financial might of Google has undoubtedly had considerable influence over the fight ‘for’ fair use. However, it hasn’t been a David versus Goliath battle.
The opposition has proved a worthy opponent, thanks largely to The Copyright Agency’s $15 million ‘future fund’ to fight the proposed changes. It’s rare that a country campaign for artists and small business has the resources to stand in the way of the multinational internet juggernauts.
The AIPP has had an ongoing role advocating for photographers need for clear and robust copyright law.
It made multiple submissions to both the Productivity Commission and Australian Law Reform Commission, Shain met with the Productivity Commission on behalf of the AIPP, and it has educated members on the potential harm fair use will cause a photography business.