An opinion piece in today’s Sydney Morning Herald links the Corby family’s copyright win in the Federal Court on 24 April to the review of copyright law by the Australian Law Reform Commission (ALRC).
A couple of things to note about the Corby case. The book on Schapelle Corby at the centre of the case included 37 photographs. Various members of the Corby family owned copyright in five of them. The court found that the publisher had chosen not to follow its usual copyright clearance process for these five photographs, and that it had taken a ‘calculated risk’ to use them without permission.
The damages awarded had two components: compensatory damages for each of the five photographs and ‘additional’ damages. The compensatory damages (representing the commercial value of the use) ranged from $500 to $5,000, totaling $9,250. The ‘additional damages’ of $45,000 was for the publisher’s ‘flagrant disregard’ of the rights of the owners of copyright. A court has the power to award additional damages, having regard to matters such as the infringer’s actions after notification of infringement, the benefit to the infringer, and the need to deter similar infringements.
The publisher could have chosen not to include these five photographs. According to the court, it chose to use them without seeking the clearances it knew were required.
There are provisions in copyright law that allow publishers and others to use other people’s work without permission in special cases, such as for criticism, review and reporting news. The publisher did not argue that any of them applied in this case.
Copyright applies to the works of amateur creators as well as to those of professional creators. It allows all creators to choose how to manage others’ use of their work. It allows them, if they choose, to make their work available under an ‘open’ licence, such as a Creative Commons licence. Many do, including on social media platforms. There is a wealth of images available under various forms of licence for publishers and others.
Professional photographers are struggling to make a living in an environment where any publication of an image can lead, in practice, to loss of any opportunity to manage its subsequent use. A key component of the norms underlying copyright law is respect for the work done by others in creating content that we value.
The SMH opinion piece also refers to Google’s submission to the ALRC. That submission is part of Google’s push internationally for copyright exceptions conducive to its business aspirations, including in the UK and Ireland. The UK report on copyright reform was sceptical about Google’s claims that UK copyright law impeded Google’s capacity to innovate in the UK, and Google’s role as an adviser to the UK government has recently come under fire.
The role of copyright in the creation and dissemination of content should be interrogated, and should encompass current technologies and the practices that it allows. But it requires a more considered discussion than is usually seen, and in particular needs to address how we ensure the creation and dissemination of content necessary for the economic and cultural life of Australia