Since copyright became a topic for the water cooler, it has been fashionable to assert (authoritatively) that ‘copyright is broken’, and ‘if only we had a fair use exception, life would be perfect’.
Copyright is a proper matter for public debate. It touches the lives of nearly all Australians, and affects the way we create and consume content in vast range of situations, including education, commerce and entertainment. But it is a complex ecosystem of intersections between legislation and legal interpretation, and industry, social and cultural practices. Slogans are seductive, but copyright is not an area conducive to a ‘one size fits all’ solution.
At a recent conference organised by the Australian Digital Alliance (ADA), comedian Dan Ilic announced the ‘launch’ of a campaign called ‘Creationistas – Australian copyright is broken’. The campaign has a website and a YouTube channel funded, according to Mumbrella, by the ADA. The ADA’s members, listed here, are educational institutions, libraries, Association for the Blind WA and large online service providers: EBay, Google, InternetNZ, Optus and Yahoo!. When ADA was first established, the Australian Consumers Association (now Choice) was also a member, but it is no longer affiliated. (Choice has run its own campaign on fair use).
The Creationistas YouTube channel has some videos poking fun at some current applications of Australian copyright law. The videos got some laughs at the conference, though copyright lawyers in the audience were a bit perplexed by some of the ‘interesting’ interpretations of the law.
The campaign is really focused on the creation of new content that uses bits of other people’s content. There are, of course, a variety of ways that this can be done under the current law, including under exceptions for criticism, review, parody and satire; using less than a ‘substantial party’; using content made available under Creative Commons and similar licences by content creators who want their material to be mashed up and shared; and asking.
Content creators’ anxiety is mostly about all the other things that a ‘fair use’ exception could allow, and the inevitable legal cases to interpret its application in the Australian context. Whereas ‘transformative use’ in the US used to mean significant creative input, it is now argued to cover ‘technical’ transformation such as digitisation. What constitutes ‘harm’ to content creators is hotly contested in the US. Content creators tend to be much more worried about the potential benefits a fair use exception could deliver to online giants such as Google than about amateur mashups. They are also worried that a fair use exception would be used to reduce licence fees and compensation under statutory licence schemes. For example, education sector representatives have sought a fair use exception, not because they want to encourage the creation of new content from old in the education sector, but because they want to reduce the compensation they pay for use of educational resources.