How Arts Law can help
Every unauthorised copy, publication or communication of a creative work may be lost income for an artist. Arts Law regularly takes on policy law reform and advocates for artists to be rewarded for their work so that they can practise their craft professionally. This includes advocating for a fair and effective copyright system that prevents unauthorised misappropriation of artists’ work and ensures artists receive credit and remuneration for their creative output.
What the ALRC review is about
In 2012, the Australian Law Reform Commission (“ALRC”) was asked to consider the desirable uses of copyright material in the digital environment, and whether the current exceptions and statutory licenses in the Copyright Act 1968 (Cth) (“Copyright Act”) were adequate and appropriate. Arts Law made a submission on behalf of artists in December 2012 to the ALRC.
The ALRC has now released a Discussion Paper titled “Copyright and the Digital Economy” outlining proposed changes to the Copyright Act. The Discussion Paper focuses on the needs of consumers of copyright to the detriment of creators. Amongst other things, the ALRC has proposed the introduction of a US-style “fair use” exception to copyright infringement and the repeal of the statutory licensing scheme for use of copyright material by governments, educational institutions and institutions assisting person with a print disability as well as retransmission of free-to-air broadcasts.
Fair use exception
The current fair dealing exceptions under the Copyright Act allow for the use of copyright material without the permission of a copyright owner for certain socially useful purposes, including for research or study, criticism or review, reporting news and parody or satire. The US-style fair use exception is different to the fair dealing exceptions because fair use is open-ended and thus allows for use of copyright material without permission for any purpose as long as it is “fair”.
The term “fair” will be left undefined in the Copyright Act, however the following four broad non-exhaustive “fairness factors” will be taken into account when determining whether use of copyright material is fair:
- The purpose and character of the use;
- The nature of the copyright material;
- Where only a part of the copyright material is used, the amount or substantiality of the material used; and
- The effect on the potential market for or value of the material.
A list of purposes illustrating what may be considered “fair” will be added into the Copyright Act and will include the current fair dealing exceptions plus non-consumptive use (such as caching, indexing and other internet functions), private and domestic use, quotation, educational use and public administration.
For artists, replacing the current exceptions to copyright infringement with a broad US-style fair use exception means it will no longer be clear how far the exception for the use of an artists’ copyright material without permission or remuneration will extend. The implementation of a broad fair use exception may also result in Australian artists effectively losing the ability to avoid infringement of their moral rights.
Repeal of statutory licences
The ALRC has also proposed the repeal of the current statutory licencing scheme for use of copyright material by governments, educational institutions and institutions assisting persons with a print disability as well as the retransmission of free-to-air broadcasts. Currently, these licences allow for certain uses of copyright material without permission of the copyright owner subject to the payment of a reasonable fee either to a copyright collecting society (e.g. Copyright Agency) or directly to the copyright owner. For example, once a government department has paid a fee for use, they can print several copies of a report without the need to notify the copyright owner. The ALRC believe that voluntary licences would be more efficient and better suited to a digital age. There is no evidence provided to support this conclusion.
It is in the interest of artists and rights holders to receive fair remuneration from uses of their work and the current statutory licencing scheme prevents the exploitation of copyright material by the bodies listed above. Repealing this system in favour of voluntary licensing may disadvantage artists and rights holders by leaving them open to such exploitation. In addition, the inclusion of education as a fair use purpose may potentially result in the loss of many millions of dollars of potential income for creators.
How you can respond to this review
Arts Law is interested in comments from artists and arts organisations about the proposal to introduce a fair use exception, its impact on moral rights and the repeal of statutory licences. Examples of Australian artists experiencing the effect of appropriation art will assist Arts Law in responding to the ALRC Discussion Paper. Email your comments to [email protected] by 24 July 2013.
The ALRC has also opened a discussion forum where interested parties can make comments about the recommended changes to the Copyright Act. Go to http://www.alrc.gov.au/node/5458 to have your say. The forum closes Wednesday 24 July 2013.
Artists and Arts Organisations can also make a direct response to the ALRC. Go to http://www.alrc.gov.au/publications/copyright-and-digital-economy-dp-79. The closing date for making a submission is Wednesday 31 July 2013.
Arts Law will provide artists with more information in the next few weeks.