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Techdirt editor Mick Masnick responded to an op-ed in the Sydney Morning Herald written by Australian author and Copyright Agency member, Linda Jaivin.

It is an unfortunate example of the differences between US and Australian fair use (for the US) and fair dealing (for Australia) laws being confused with each other and misunderstood.

Jaivin argued the case for author’s copyrights to be protected under proposed changes to the Copyright Act that would remove royalty payments made to authors when their work is copied, under the guise of “fair dealing”. That is, fees which are currently paid to authors by educational boards to then copy significant excerpts of those author’s works for educational purposes would be scrapped. In a climate where writers’ and authors’ incomes are diminishing rapidly, any further erosion of those income streams is understandable cause for alarm

Interestingly, Masnick uses this argument to refute Jaivin:

What’s incredible is how Jaivin’s own argument is completely undermined by her own words.

Interesting, because Masnick then goes on to demonstrate a lack of a working knowledge of how fair dealing operates in Australia in his attempt to refute Jaivin’s claims.

Referencing a single line of Shakespearean dialogue, as the piece does in the headline (which an editor had actually written, not the writer, as The Sydney Morning Herald is a newspaper, not a blog), does not constitute copyright infringement in Australia. Or anywhere. The works of Shakespeare are in the public domain.

Yet Jaivin doesn’t even seem to realize that if the reuse of someone else’s “intellectual property” is “theft” then she has committed theft herself.

It is not theft. The ability to make commentary on, or to parody or satirise a work is not under threat in Australia. No intellectual property theft took place when the subeditor wrote the headline. Not under current copyright laws, or any proposed changes to them.

Masnick then asks rhetorically if Jaivin intends to compensate the authors of the books from which she draws her research for the writing of her own books, which she then credits in her bibliography of sources. Licensing fees for the reproduction of excerpts of other’s work appearing in new publications when that excerpt constitutes more than a substantial part, must be licensed from the original copyright holders, unless in the public domain. So yes, those authors are, when found to be appropriate, compensated for someone else using their work in a new work of publication. That is how Australian copyright laws operate. When an author’s work influences another’s without using a direct excerpt that is not infringement of copyright.

Jaivin is not, in her work, copying entire chapters of these other author’s works and republishing them in her own books without payment or attribution.

There is no provision for transformative use in Australian fair dealing laws currently. As it stands, for any remixing or reuse of an artist’s work in making something new, the artist must seek permission from the original creator for the use of their work, negotiate a licensing fee, or take less than a substantial part of the work.

The US Supreme court stipulations for transformative fair use are:

Has the material you have taken from the original work been transformed by adding new expression or meaning?
Was value added to the original by creating new information, new aesthetics, new insights, and understandings?

There is no equivalent to this in Australian copyright law. All uses, whether transformative or not, of an artist’s IP must be licensed and sought permission for their use if ever taking more than a substantial part.

Masnick then refutes Jaivin’s claim that scholarship and authorship are expensive and require financial investment – through for example the payment of fees from education boards to use her work in classrooms – to continue to be produced:

No, your ability to make a living depends on your ability to produce something — product or service — that enough people are willing to pay enough for that you can earn a living. That’s it.

This argument, inherently Randian in outlook, in one fell swoop does away with the financial recompense owed to creators by anyone who wants to profit from using their intellectual property. Intellectual property rights exist precisely because there are not always physical goods that can be literally sold to enough people to “make a living”. This argument serves the needs of tech companies making their profits from streaming, storing, or otherwise curating creators’ work to make a profit. A profit that would be even bigger if they didn’t have to pay so many pesky royalties for privilege of profiting off the work of others.

The Copyright Agency’s response to the discussion paper is concerned,

The ALRC risks choking the original sources of new content in its haste to embrace secondary content businesses, such an online aggregators and providers of social media platforms. The ALRC received no evidence that these businesses are impeded by the current system, but gave priority to their interests – global businesses – over those of Australia’s content industries, which are making a significant contribution to Australia’s economy.

Masnick’s argument then rests further on the idea that exposure – people being able to merely access an author’s work but not necessarily pay for it – is good in itself, as it grows a fan base of potential new paying customers. This is a model that is not borne out by facts, as the falling revenues across publishing, journalism, and music would instead suggest that a large audience does not translate to a paying one.

Masnick finishes with, “the ability to freely quote a small passage for a reasonable purpose shouldn’t require a license.” A good thing, as this is not what is being proposed in Australia. If freely quoting that passage for the purposes of commentary, criticism and review, parody or satire, or taking less than a substantial part, then there is no issue. Any use beyond those stipulations, in Australia, requires a license fee paid or permission from the author.

There is more often financial cost to creators in producing work then selling the products of that work will be able to sustain. Protecting secondary income streams that allow writers to produce their work is in the interest of all of us.