4 April
Photo by Headway on Unsplash

Arts Law’s Appearance at the Copyright Society of Australia Seminar 

On 21 March 2023, the Copyright Society of Australia (CSA) held a panel discussion on the topic of Copyright Reform on the Horizon: National Cultural Policy, Copyright Enforcement Review and Authorisation. The event was hosted by the law firm Ashurst, and moderated by Imogen Loxton (Senior Associate, Ashurst). The panellists included Patricia Adjei CF, Head of First Nations arts and culture at the Australia Council for the Arts, Eileen Camilleri CEO of the Copyright Council, barrister Neil Murray SC at Tenth Floor Chambers, and Katherine Giles Head of Legal and Operations at Arts Law. 

The panel started with a focus on one of the biggest announcements of the year, the launch of the National Cultural Policy – Revive: a place for every story, a story for every place (Revive Policy). Trish Adjei provided an overview of the Five Pillars in the National Cultural Policy, noting that the Australia Council for the Arts welcomes the National Cultural Policy and in particular the focus on First Nations First and the Centrality of the Artist. Arts Law’s Katherine Giles also noted that Arts Law is pleased to see a policy commitment to introducing stand-alone legislation to protect First Nations knowledge, ICIP and cultural expressions, and a continued focus on addressing the harm caused by fake art, merchandise and souvenirs, and that Aboriginal and Torres Strait Islander voices on this have been heard. Katherine highlighted the work of her colleagues at Arts Law including Robyn Ayres and Suzanne Derry over many years, and the work of the Indigenous Art Code, Trish Adjei, Dr Terri Janke and many others. Both panellists noted that while the current National Cultural Policy is light on details in terms of the scope and limitations of stand-alone legislation, there is already work underway. Arts Law supports the ongoing voices of Aboriginal and Torres Strait Islanders who are working and consulting with communities in this space, and self-determination principles are reflected in this approach. It was also noted that it isn’t clear yet whether funding that will go towards the introduction of ICIP legislation will also go towards harm minimisation strategies and combatting fake art. 

Eileen Camelleri also noted the Copyright Council’s excitement when the National Cultural Policy was announced. Katherine also noted that the launch was both exciting and full of beautiful moments where First Nations really were first, and that the National Cultural Policy document was beautifully written with one of the introductions authored by Christos Tsiolkas an Clare Wright, and the opening by the Prime Minister Anthony Albanese where he opens with the motivation of bringing us all together – and that the arts are crucial to this mission. Both Eileen and Katherine discussed the pleasing action items set out in the policy, including a recognition of the important role of arts and culture including that arts and culture is generative and preservative, the support for the development and training of First Nations artists, recognition of artists generally, an enhanced resale royalties scheme and the review of the copyright enforcement regime. 

The panel then went on to discuss the Attorney-General’s Copyright Enforcement Review. Eileen noted that the Copyright Council supports a number of changes that will give copyright owners greater access to copyright enforcement mechanisms, including the introduction of a small claims court for copyright infringement matters. Katherine discussed Arts Law’s recent submission to the Copyright Enforcement Review and that a survey of artists and the arts community that Arts Law works with was undertaken (with 107 responses) prior to preparing the submission. She noted that combined with the data gathered from the advices that Arts Law provides each year to artists and arts organisations, Arts Law was able to include both quantitative and qualitative data in the submission. And that from these responses, Arts Law knows that rising infringement is driven by online platforms (with an increase in the advice concerning online copyright infringement over the last few years), he current enforcement options place an unreasonable burden on creators (and is often out of practically and financially out of reach for them – particularly when it comes to legal proceedings), creators want to see minimum standards for online platforms, and a small claims tribunal or court for copyright infringement and related issues is needed. Both Eileen and Katherine pointed to the example of the copyright small claims courts in the US and the UK. 

The panel also discussed the Attorney-General’s Copyright Roundtable, and both Eileen and Katherine who attended the Roundtable agreed that while there have been a lot of government consultations and reviews on various aspects of copyright, there is now a drive for change. Neil Murray SC also discussed the issue of authorisation, with a focus on the High Court’s decision on 21 February 2023 to grant special leave to hear the appeal on Campaigntrack Pty Ltd v Real Estate Toolbox Pty Ltd & Anor [2022] FCAFC 112 (6 July 2022) (see Real Estate Tool Box Pty Ltd & Ors v Campaigntrack Pty Ltd & Anor [2022] HCATrans 13 (17 February 2023)). The panel ended with questions from the audience.