Law change could unlock innovation


Critics of Australia’s copyright laws often point to the high profile case of Australian band Men at Work being sued for their hit song Down Under. Picture: Michael Ochs

ONE of the world’s most popular websites has weighed in on the debate over Australia’s strict, and what many see as outdated, copyright laws.

Wikipedia has launched a campaign targeting Australians to push for the government to introduce a “fair use” provision like in the US which permits the reuse of content, as long as it’s deemed to be fair and doesn’t hurt the market of the original content. Proponents say it will help Australia unlock creativity and innovation.

Wikipedia which displays logos and information on an array of topics owes its existence to such a provision because if it was hosted in Australia, it wouldn’t technically be legal.

In fact a number of the online services we enjoy including Google could not have started in Australia because the cataloguing of the internet is not expressly permitted and it’s very possible rights holders could have sued it out of existence.

Even the advent of VCRs which let people record shows on TV could have been nixed by rights holders had they originated in Australia.

But in the US a “fair use” provision enshrined in the country’s copyright law allows companies to use copyrighted material to do things deemed to be in the public interest.

Wikipedia — the 7th most visited website in Australia — launched a campaign today to push for Australia to follow suit and adopt more flexible laws around the copying and reuse of content.

If you visit Wikipedia in the next few weeks, you will see a banner displayed at the top of the page with the message: “Wikipedia editors and readers benefit from FAIR USE. But Australia does not. Yet. #FairCopyrightOz”

It’s been an area of debate for nearly two decades.

Australia currently has strict laws around the reuse of copyrighted material. Instead of a “fair use” allowance, Australia has a “fair dealing” provision which only allows limited defences for the reuse of copyrighted material including research and study, criticism and review, parody and satire, and news reporting.

A number of past reviews have called for the easing of certain provisions, the latest of which is a review by the government’s Productivity Commission which released a draft report in April last year.

As the Wikipedia campaign points out, “six government reports since 1998 have recommended Australia adopt Fair Use.”

Currently the government is considering its response to the latest recommendations.

The Copyright Agency, which collects payments on behalf of authors, is fighting hard against the introduction of Fair Use saying it will harm the ability of artists to make a living and receive proper compensation for the use of their work.

“This is not just unfair, it is a threat to jobs of young Australians and means the next generation of Australian filmmakers, songwriters, artists and authors will not be able to make a living,” the agency’s chief executive Adam Suckling said.

But critics often point to the case of popular Australian band Men at Work being sued for their iconic hit Down Under in 2010. The band were sued by plaintiffs who claimed the flute riff played by Greg Ham in the song was taken from iconic children’s song Kookaburra Sits in the Old Gum Tree, written by Melbourne teacher Marion Sinclair for a Girl Guides jamboree in 1934.

Men at Work band members were ordered to pay five per cent of their royalties from the song to the plaintiffs.

Colin Hay of band Men at Work' entering Supreme Court for the copyright hearing for the song Kookaburra.

Colin Hay of band Men at Work’ entering Supreme Court for the copyright hearing for the song Kookaburra.Source:News Limited

Professor Nicolas Suzor from the law department of Queensland University of Technology believes a fair use doctrine in Australian copyright law would help facilitate creativity and drive innovative projects.

“Overall there’s something really strange going on here, because in other countries, particularly in the US we see that fair use is actually a vital part of the creative process” he told back in December.

“Creatives are scared,” he said. “In the transition to the digital economy people have had to change business models and people are really worried about copyright infringement and something really strange has happened; we’ve started to confuse fair use with pirates,” he said.

Jessica Coates of the Australian Digital Alliance — which represents librarians and is also partnering with Wikipedia on the latest campaign — told Fairfax on Monday that introducing a fair use provision would future-proof the law so it didn’t need to be updated with every new wave of digital technology.

“It took until 2006 to legalise taping a TV show on a video cassette recorder in Australia, by which time most VCRs were already mothballed,” she said. “We need copyright law that focuses not on specific technologies but on what is fair.” has contacted Wikipedia for comment.

A lawyer for NZ’s National Party in a copyright case says an Eminem hit has a low level of originality.

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