Digital technology provides creative opportunities as well as challenges for artists, rights holders and consumers of copyrighted material. The emergence of social networking sites, video sharing sites and the further evolution of search engines have resulted in what some commentators describe as Web 2.0. Those internet developments, and the roll out of the Australian National Broadband Network, highlight the importance of the digital economy and the potential for future opportunities and economic and cultural development through new digital technologies. Arts Law’s submission to the Australian Law Reform Commission (ALRC) inquiry is an opportunity to put forward the concerns of artists in light of any suggested amendments to the Copyright Act 1968 (Cth) (Copyright Act).
The ALRC Inquiry
The objective of the Copyright Act is generally accepted as being to facilitate innovation and creativity. In early 2012, the Attorney-General of Australia, Hon. Nicola Roxon, directed the ALRC to inquire into and report on current and further desirable uses of copyright material in the digital economy.[i] The title of the inquiry is “Copyright and the Digital Economy” (the ALRC Inquiry). The ALRC Inquiry “Terms of Reference” considers whether exceptions to copyright and statutory licences contained in the Copyright Act allowing specific uses of copyright material are adequate and appropriate in the digital environment and whether further exceptions should be recommended. The ALRC Inquiry also considers the “need for copyright law to provide an appropriate balance between the rights of creators and the rights, interests and expectations of users and the public so as to foster creativity and innovation and promote cultural development”. The ALRC Inquiry provides an opportunity to reframe the Copyright Act so that Australians will be able to take advantage of opportunities for economic and cultural development in the digital economy.
Participation in the Digital Economy
The Internet provides an environment within which artists can create works and audiences can find those artistic works using search engines. The Internet is also a participatory environment.
‘One of the defining characteristics of digital media is interaction. It enables us to be active, make choices, build connections, express ourselves and exercise a new level of control over our media experiences.’[ii]
Participation in the digital environment could involve contributing to a Twilight fan fiction website; digitally editing a photograph; editing witty subtitles into the scenes of Adolf Hitler's last days in the Berlin bunker from the 2004 film ‘Downfall’; remix instrumentation from one music track with the lyrics of other artists as a mashup; or recording a fanvid version of Gotye’s hit song ‘Somebody That I Used To Know’ and uploading that video to YouTube.
These examples of participation in the digital environment are contentious as they involve an edit/modification/remix/mashup of copyrighted work. The creators, producers and copyright owners may be appalled with the reuse of their work or pleased to generate a passionate fan base. For example, the producers of ‘Downfall’ attempted to stop the reworking of their film, however they were unsuccessful as parody is recognised as an exception to the exclusive rights of the copyright owner. In response to the deluge of fanvids of ‘Somebody That I Used To Know’, Gotye engaged with his audience and released a remix of some of the fanvids as ‘Somebodies: A YouTube Orchestra’, with links to a website that listed his tour date information.
The ALRC Inquiry is being conducted at a time at which people have choices as to whether they are passive or active in their participation in the digital environment. Active participation can extend to reusing, remixing and sampling material and posting copyrighted material on social networking websites.
Arts Law’s submission on the ALRC Issues Paper
In August 2012, the ALRC Inquiry published an Issues Paper (ALRC Issues Paper) and invited comments over a range of topics. Some have a direct impact on the ability of artists to control the use of their work and to derive income from their work, in particular:
Whether some online uses of copyright works for social, private or domestic purposes be more freely permitted;
Whether there is a need for greater freedom for ‘transformative uses’ such as sampling, remixes, and mashups; and
Whether the ‘fair dealing’ exceptions in the Copyright Act should be expanded to become a U.S. style ‘fair use’ exception.
In November 2012, Arts Law made a submission on the ALRC Issues Paper. Arts Law submitted that no exception to copyright should be created for online uses for social, private or domestic purposes. Arts Law also submitted that Australia should not move to adopt a U.S. style ‘fair use’ exceptionor adopt a ‘transformative uses’ test because of the problems in framing those exceptions for the following reasons:
The difficulty in defining what is private or domestic in the use of copyrighted works on social networking platforms (because the distinction between ‘commercial’ and ‘non-commercial’ is uncertain given that the social networking platforms operate as commercial enterprises);
The difficulty in permitting such an exception and maintaining the protection of the moral rights of artists;
The uncertainty in determining whether a specific item of user-generated content is a creative or non-creative reuse – whether it is ‘transformative’ of the copyrighted work that is reused; and
A U.S. style ‘fair use’ exception is in practice complex and complicated in its application. The adoption of a ‘fair use’ exception, would not simplify the law, providecertainty in the law, promote accessibility of the law, or maintain the relevance of the law.
Compliance in the Digital Economy
The Arts Law submission observed that the digital environment has evolved to the point where there are enterprises at which web users congregate, including search engines (eg Google) and social networking platforms (eg YouTube and Facebook). As search engines and social networking platforms are key nodes in the architecture of the internet, they should participate in the mechanisms and approaches to both manage compliance with the copyright system (such as ‘take down’ notices) and to implement the licensing and payment mechanisms that allow consumers to access works, and artists and rights holders to receive payment for use of copyrighted works. These mechanisms allow artists to decide how they will engage with the digital environment. That is, the digital environment allows for mechanisms that give rights holders’ choices as to how to respond to unlicensed use of their work. It is the opinion of Arts Law that the creation of broad copyright exceptions for social, private or domestic purposes will remove the choice for artists, creators and rights holders as to how their work is used in the digital environment.
Digitisation of Indigenous works
The ALRC Issues Paperasked for comments on copyright issues that may arise from the digitisation of Indigenous works by libraries and archives. The Arts Law submission is that the principle of free, prior and informed consent (FPIC) should guide the digitisation of Indigenous works by museums, archives and other cultural institutions. This submission is consistent with Article 31 of the UN Declaration on the Rights of Indigenous Peoples (the UN Declaration) as well as various protocols, policies and practices within Australia. The Arts Law submission commented that economic harm (resulting from infringement of copyright) is magnified by the potential for significant cultural and other harm that may arise for Indigenous artists through the digitisation of works and the communication of the works to the public in ways that are not culturally appropriate. Arts Law also commented on the need to better protect Indigenous Culture and Intellectual Property (ICIP) as described in Article 31 of the UN Declaration, in that Indigenous people should have “the right to maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions”.
Arts Law made further comments on the indirect impacts on artists of how copyright materials can be accessed in the digital environment, including:
The use and access to copyrighted works in the context of libraries, archives and educational institutions;
The problem of orphan works. That is, where the author or copyright owner of a work cannot be identified or located;
The use of telecommunications services including the effect of retransmission of free-to-air broadcasts to smart phones (such as the Optus TV Now service), the use of technologies that allow for format shifting, time shifting and the use of the web to delivery programming such as using IPTV; and
The operation of web technology including caching and indexing used in the operation of search engines and other internet functions such as ‘cloud computing’.
The ALRC Inquiry provides an opportunity to put forward ideas and proposals for reform of the Copyright Act and to comment on proposals that are not in the interests of artists and creators. In mid-2013, the ALRC will produce a Discussion Paper with proposals for reform of the Copyright Act. This will give Arts Law a further opportunity to contribute to the debate about copyright in the digital economy before the ALRC delivers a final Report to the Attorney-General of Australia at the end of 2013.
The Arts Law submission can be downloaded from the ALRC web site at http://www.alrc.gov.au/inquiries/copyright-and-digital-economy/submissions-received-alrc
Arts Laws is committed to providing a constructive response to copyright issues in the digital environment and are interested in the opinions of subscribers to Arts + Law. Comments on Arts Law’s submission to the ALRC Issues Paper can be sent to [email protected]