The left response to Uhlmann on freedom of speech

Chris Uhlmann, the Australian Broadcasting Corporation’s Political Editor, published an op ed in The Weekend Australian on 20 February.  His main point was a lament that,  as he sees it, some journalists are not sufficiently committed to free speech.  As a secondary point, he placed this in the context of what he argued was a broader intolerance of dissent by those on the left and posited that this had its roots in the ongoing influence of Gramsci, Marcuse and “Frankfurt School academics” who fled Hitler’s Germany to the US in the 1930s.

I had a robust exchange about the Uhlmann piece on Twitter with Jason Wilson, who occasionally writes columns for The Guardian.  Wilson tweeted if it was a problem that the ABC’s Political Editor “peddles right wing conspiracy theories”.  I criticised Wilson’s post (at one point I called it “fuckwittery”) and a subsequent piece that he published at The Guardian.  The exchange ended with Wilson saying that I have “a whiny right wing victim complex”.  I sent Wilson this email in response.

Jason

Your final tweet in our exchange about this requires a response that Twitter is not suited for.  You say that all I have on my side is a “whiny, right wing victim complex”. I didn’t know whether to laugh or cry when I saw it, because it is at once so wide of the mark, and yet so symptomatic of what annoyed me about your response to uhlmann’s piece.

I’m not right wing; at least that’s not how I perceive myself. I suppose I could give a list of progressive credentials. But that would be pretentious and would also dignify the arrogance and stupidity of your comment.

I’ve always been put off by the tribalism of the left – the way that an epithet like “grouper”, “trot”, “fascist” or “…phobe” signals not only disagreement with another’s political perspective but also the certainty that anything the person so labelled had to say on any topic should be dismissed without consideration.

In my view (and I’m not alone) this tendency is now more widespread and more vicious than it has ever been; no-platforming, even of people with objectively impeccable progressive credentials) is its most recent and egregious expression.

When I read uhlmann’s piece on Saturday, his central complaint resonated with me. I noticed that he didn’t cite specific examples of journos who had tried to silence him or suggested that Abbott should not address the US anti-gay group, but it occurred to me that some were likely to have been ABC colleagues, and he may have wanted to avoid that confrontation. I also noticed that one senior former ABC journo supported him on Twitter; she seemed to know what he was referring to, which led me to think that others probably do as well.

The ABC has been part of my life for as long as I remember, both as a listener and, professionally, in my career as a musician. It’s an indispensable part of Australian cultural life and journos like Fran Kelly, Mark Colvin and numerous others are treasures. But anyone who spends any time listening to or working with or in the ABC cannot fail to recognise the essential truth of the charge that those on the right make: its program makers and on air personnel are generally of the left. Anyone who denies this is delusional.

I recall in 75 when Whitlam was dismissed, being appalled when I walked into the ABC studios in Perth during the election campaign and saw staff members walking around wearing “shame Fraser shame” badges. I agreed with them, but in my naivety I thought that public servants shouldn’t promulgate their political views publicly. Not a lot has changed since then in my view. The “group think” criticism has some force.  Denying that fact doesn’t do the left any good, and the fact itself isn’t helpful to progressive thought because too many progressive sacred cows go unchallenged. I have no particular brief for uhlmann, but I will say in his favour that I have never noticed that his personal political views colour his coverage of politics.

But to anyone like you who subscribes to the tribalism tendency, people like uhlmann are oddities, and traitors to some sort of generally soft-left party line when they express an opinion.  Barry Cassidy can opine against the Abbott government as much as he likes and people like you will say nothing, partly, I suspect, because you don’t even notice. But witness the savage response that greeted uhlmann. You promptly accused him of spreading right wing conspiracy theories and you dangled the spectre of anti-semitism; another person even characterised his article as “anti-gay”. (Your guardian piece walks back from the anti-Semitism smear, but you didn’t shirk from putting it out there, ever so subtly, in the first place).

I found uhlmann’s Frankfurt school analysis a bit overwrought, but the Marcuse quote was acutely prescient when Marcuse expressed it, given what’s happening on campuses around the western world (the recent excommunication of Greer from feminism by a male Melbourne Uni cultural studies academic was just one absurd local example). To that extent I found uhlmann’s diagnosis unremarkable: it’s simply untrue to say, as you have, that he is stating that the Marxists have “won”, but there’s no denying that a particular kind of censorious left world view has a strong presence on campuses throughout the west, and to an extent in institutions like the ABC, and I think it’s fanciful to suggest that cultural Marxism (or something like it) has had no influence on that.

Almost none of the critical reaction to uhlmann’s piece engaged with his central point: the necessity for journalists to support freedom of speech. Rather, the response of you and others was to take issue with a relatively unimportant aspect of the piece, the tactic being that if it’s possible to take issue with any one part of an article, then the whole piece must be suspect.

So that’s why i found your last tweet in our exchange both laughable and sad: it exemplified the arrogant certainty with which those on the left assume that anyone who has anything remotely supportive to say about someone who is “right wing”, or who criticises someone who regards themselves as “progressive”, must themselves be right wing.  And it also exemplified the arrogance that says that the opinion of anyone who can be characterised as right wing is axiomatically of no value and can be dismissed or silenced. This sort of game is played in reverse all the time by those on the right like bolt and cater, but we are supposed to be better than that. Unfortunately, too often we’re not.

Regards

Paul Noonan

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New Matilda: The platform for no-platformers

Two recent articles in the journal New Matilda demonstrate that the censorious lunacy of “no platforming” is alive and well in Australia.

In one piece, Germaine Greer is excommunicated from feminism – by someone called Timothy, no less. Tim’s main point is that he supports Greer being “no-platformed” by a UK University for once saying something that he disagrees with on a subject that she wasn’t even going to speak about during her appearance at the university (which she has now cancelled). By implication, his article suggests that he would also support Greer being banned from speaking at any tertiary institution.  Presumably this would include Melbourne University, where he is employed to teach (could there have been any doubt) “cultural studies”.  His laughable justification for this is that in his view Greer’s comments about transgender people are not supported by objective evidence and that this means denying her the right to speak at an academic institution is not censorship because it’s no different from giving a student a “fail” mark.  He should hope that our tertiary education bean counters don’t start applying his logic to cultural studies lecturers.

In a second piece, Amy Macquire slanders the ABC journalist and television presenter Annabel Crabb as “being more interested in propping up power” than “speaking truth to it”.  Crabb’s apparent offence is that, as well as being one of the country’s more astute political commentators, she is versatile and talented enough to create and front a lifestyle program, Kitchen Cabinet, in which she interviews politicians and doesn’t stick to the party line on…pretty much anything.

Macquire misses the point that one of the beauties of Kitchen Cabinet is that Crabb is able to highlight, without comment, the incongruity between the professed personal beliefs of politicians like Scott Morrison and his behaviour as a politician.  The way that she does this is subtle, not to everyone’s taste and is not the main purpose of the program. But when it does happen, it potentially has more impact than if the politician were grilled by the sort of hardline political commissar that MacQuire would approve of.  MacQuire also misses the point that the ABC already provides much greater exposure for marginalised voices and causes than any other mainstream media organisation.  More important though, is her arrogant assumption that a publicly funded broadcaster should tailor its programming to reflect her view about the politics of the people whom Crabb interviews.  I happen to agree with some of the things that MacQuire says about Morrison, but millions of Australians don’t and it’s not the job of any ABC journalist or presenter to use a publicly funded platform to tell them that they’re wrong.

MacQuire also besmirches Jenny Macklin, a long time member of the Labor left and dedicated campaigner against social and economic disadvantage, of participating in “the greatest human rights abuse in Indigenous affairs in modern history”, (as she characterises the Northern Territory Intervention). She further alleges, without citing any evidence, that the intervention “led to a quadrupling in self-harm and suicide rates” with the implication that Macklin bears responsibility for this. In a bizarre denouement (facilitated by an egregious lapse by New Matilda’s editor), MacQuire complains that Macklin once “walked out in a huff from an interview with one of my closest friends” (what is this, high school?).

The common thread of the 2 pieces (and others in similar vein that have appeared in New Matilda recently) is the desire to shut down views that don’t have the seal of approval of a narrow cabal of self-appointed far left censors.   The editor and owners of New Matilda, and its contributors, are entitled to their views.  They should afford others the same courtesy.

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Remembering Dad; Fathers’ Day 2015

Mum turns 93 next month. Some years ago she self-published her autobiography. Recently her biography of my father was finished. This was my contribution to the afterword.

My early memories of Dad are in Katanning – the radio going on a Saturday afternoon with a Subiaco game as he painted the bathroom; stories about seeing Keith Shea at a party in Perth stab kick a ball across a room at a chair and break it; other stories about Barney Wild and the Yampi Lass, the boat that they crewed together off the Kimberley coast of Western Australia, that seemed at the time so exotic. Later, when we lived in Busselton and I left to go to school in Perth, Dad seemed to have so many reasons for a business trip to the city every 2 weeks or so, usually on a Friday. I recall numerous long drives as he and I chatted about politics, economics, books, religion, football and the many other things that were his passions (outside Mum, Judy and his boys).

Dad was of his time, but ahead of it as well; his vehement hatred of the banks, his pacifism, his atheism and his leftist political outlook were born out of his experiences as a boy and a young man; but they appear so prescient from our standpoint in the twenty first century as we contemplate a world riven by fraudulent bankers and their political fellow travellers, religious superstition, sectarian war and inequality of wealth. I still remember how early in the piece Dad fiercely denounced the right-wing Catholic politician and eventual premier of Western Australia, Brian Bourke, and accurately predicted that he would corrupt our polity, and he was loud in his contempt for Alan Bond well before it became justifiably fashionable.

Dad was proud of Judy and his boys, but never prouder of any of them than he was of Mum and what she achieved and helped him and all of us to achieve. So it’s fitting that she has now told his story as she told her own for us. Her autobiography is a gem and she has now given all of us and those who will come after us another jewel.

My particular memories of Dad’s pride in me are of how proud he was of my piano playing and how much he loved to listen when I practised. I knew that he was disappointed when I gave it up to join a band. But it was when I rang him at the end of 1993, 6 months before he died, to tell him my results for first year law, and I heard the glowing pride in his voice, that I realised just how upset he had been.

I’m so happy that Dad met Bernadette, and she him, and that they grew to love and admire each other. My only real regret in life, apart from not playing centre half forward for Subi, is that he never knew Bella and Bridie. They would have loved and admired him as those of us who knew him do. I am proud of Dad; he achieved so much from humble beginnings. He gave his children so much in material terms but, above all, he gave us the example of his loyalty, integrity and commitment to social justice.

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What do the Essendon Football Club and Australia’s Border Force Have In Common?

I’ve been following the Essendon Football Club since the early 1980s.  In the lead up to the 2012/2013 pre-season, I remember remarking that the Bomber’s marketing slogan, “Whatever It Takes”, was not a good look for a professional sporting organisation in the wake of the Lance Armstrong doping revelations and tanking and draft tampering scandals that had erupted in Australian football codes.

Little did I know that the Bombers’ marketing slogan was that rare beast: a marketing statement that perfectly encapsulated the values of the organisation that published it.  Subsequent revelations demonstrated that, from the top down, this was a club that indeed had been doing whatever it took to achieve success, without regard for ethics or player safety.  It was a case of the marketing team reflecting values imposed from above, rather than (as is often the case) a slogan manufactured from below to give outsiders the impression that the organisation stands for something.

The Essendon example came to mind today, when I read that Prime Minister Tony Abbott had dismissed yesterday’s “Border Force” fiasco as nothing more than a poorly-worded press release.

This is a government that has stipulated that it must have at least 1 security “announceable” each week, that hypes the threat of islamic terrorism, badgers the US to “request” us to bomb Syria and has pointedly militarised Australia’s responses to the challenges posed by asylum seekers.  The Border Force was recently launched in a welter of jingoistic publicity with quasi-military overtones.  Its officers have substantially greater powers than either Customs or Immigration officials. They carry guns, gather intelligence and have the power to detain offenders.

In that context, is it any wonder that the Border Force marketing person who prepared the press release for “Operation Fortitude” felt it appropriate to trumpet that “ABF officers will be positioned at various locations around the CBD speaking with any individual we cross paths with”.  This was justifiably interpreted as a threat to stop and interrogate citizens going about their lawful business in Melbourne’s CBD.  It has been reported that the press release was passed up to the office of the Minister for Immigration and Border Protection before being released.

The Prime Minister implied that the Operation Fortitude press release was an isolated piece of individual hyperbole emanating from a relatively low level in the ABF.  I’m more inclined to regard it in the same light as the Essendon marketing slogan – a revealing window into a self-important and toxic organisational culture, driven from the top.

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A broken record Down Under

“Australian copyright law is broken”.

It’s a fair bet that when you read or hear these words, they’ll have emanated from an Australian intellectual property academic, not someone who makes a living from creating and distributing copyright material.  And the academic won’t be arguing that copyright is broken because of the ease with which infringement occurs today in the digital realm.  No, the incessant message from the academy “down under” is that copyright is broken because it’s not easy enough for people to appropriate the creative achievements of our artists, composers, writers and film makers.

Nicholas Suzor (Senior Lecturer), and Rachel Choi (Research Assistant), of Queensland University of Technology’s Faculty of Law, are merely the latest to deploy this trope.  They use it to open their recent review of 2 new works, a book and a documentary film, about the “Down Under” copyright case.

Five years ago, the song “Down Under”, written by members of the band Men At Work, was found to infringe the copyright in an earlier, and no less iconic Australian work “Kookaburra Sits in the old Gumtree”.  According to Suzor and Choi, “The book, Down Under by Trevor Conomy, and the documentary, You Better Take Cover by Harry Hayes, bring renewed interest and new perspectives on the tragic story.”

Suzor and Choi’s article isn’t really a review of the book and film.  Rather, it’s an unimpressive attempt to re-heat criticism of the Down Under decision and spin it as an attack on artistic freedom and a fetter on creativity.

The musical works

“Kookaburra” was written by Marion Sinclair in 1934 as her entry in a competition run by the Girl Guides.  It has become well-known to generations of Australian school children.  It is 4 bars long.  Despite its brevity and deceptive simplicity, there’s no doubt that it embodies the necessary degree of “independent intellectual effort” that is a prerequisite for copyright protection in Australia.

After Sinclair’s death, the copyright in Kookaburra was assigned to Larrikin Music Publishing Pty Ltd.

Down Under was a massive hit for Men At Work in 1981.  The credited songwriters are Colin Hay, the band’s singer, and Ronald Strykert, its guitarist.  Their copyright was assigned to the global music behemoth, EMI.  The song remains on high rotation on nostalgia-driven FM radio stations and is a staple at Australian sporting events.

The band had performed the song live for some years before recording it.  During the recording sessions, the band’s flautist and sax player, Greg Ham, included 2 bars of Kookaburra as part of a flute riff in the introduction to the song (the introduction is repeated during the song).  The Kookaburra extract stuck and became a distinctive aspect of the song.  Greg was not credited as a co-writer.

Greg Ham died in 2012. There was speculation at the time that the decision in the case had weighed heavily on him.

The court case

Larrikin alleged that the inclusion of the 2 bars of Kookaburra in the introduction to Down Under infringed the copyright in Kookaburra.  A judge of Australia’s Federal Court found this to be the case and the decision was upheld, unanimously, on appeal.  EMI was ordered to pay Larrikin 5% of the royalties received from its exploitation of Down Under from 2002 onwards. (The compensation order was not for damages for copyright infringement but on account of statements that EMI had made to third parties that it owned the entire copyright in Down Under.  The infringement decision rendered these statements false).  The case received a great deal of media coverage and the decision was heavily criticised by members and supporters of the band and other people who, for various reasons, believed the result to be unfair.

The fact that a section of Kookaburra had been appropriated and used in Down Under remained unnoticed (including by Larrikin) until it was pointed out on a television quiz show in 2007.  This no doubt contributed to the critical response to the decision and public misunderstanding of it.

The issues

According to Suzor and Choi, the case was “controversial” and a “tragic story”, and made clear “the very real consequences of Australia’s restrictive copyright law for Australian artists”.   “While copyright law is not fully responsible for Ham’s tragic death” (they write) “it is not difficult to see how such a finding of copying would devastate any artist and undermine their integrity as a creative professional”.

The circumstances of Greg Ham’s death were indeed very sad.  Nevertheless, this is surprising stuff from a pair of academics.  It’s axiomatic that people with property rights may need to enforce them from time to time.  And if they are vindicated, the other person may have their feelings hurt or otherwise feel hard done by.  How else do Suzor and Choi imagine this is going to work?  The idea that the Copyright Act could be held “responsible” for someone’s death, even if “not fully”, (whatever that means) is nonsensical.

Suzor and Choi call on the Australian government to implement the 2014 recommendation of the Australian Law Reform Commission for the introduction into Australia’s Copyright Act of a broad-based fair use defence to infringement, modelled on the US fair use doctrine. “Reform in this area is much needed and urgent” they conclude: “if we had had a fair use exception before 2010, the outcome of the Down Under case could have been very different. Certainly, it would have been much fairer.”

There’s a glib assumption here that a court would have found the use of the phrases of Kookaburra in Down Under to be a “fair use” if the model proposed by the ALRC had been in force.  This must be treated with a good deal of caution.

As the fair use doctrine has developed in the US, the key element that the courts look at is whether the secondary use has transformed the appropriated material.  For obvious reasons, this issue wasn’t directly addressed in the Down Under trial or appeal, but EMI did use a version of a transformation argument.  They argued that there had been no infringement because the extracts from Kookaburra in Down Under were not “objectively similar” to the original Kookaburra melody.  They based this argument on the fact that the extracts in Down Under are separated from each other by other melodic fragments and were in a different key from the original.  This argument was soundly rejected by the Court at trial or on appeal.  For example, the trial judge stated:

“I also accept Dr Ford’s conclusion that the quoted passages in Down Under are identical to the relevant melodic phrases in Kookaburra. As Dr Ford says, the melodies in the relevant bars do not merely resemble each other, they are note-for-note the same, save that the quoted passages in Down Under contain the phrase at a different pitch to the 1934 version of Kookaburra. As I have said above, this is of no consequence.”

Suzor and Choi argue that Australian copyright law is overly restrictive and they consider that this has a chilling effect on the “borrowing, quoting, and homage” that they say “are fundamental to the creative process”.

I was in a band in the early 1980s that plied the same Australian pub-rock circuit as Men At Work (before they hit the big time) and numerous other bands.  But Men At Work, inXs and Midnight Oil sprang above the pack and achieved what all of the rest of us merely dreamed of – stardom, international recognition and financial reward for the years of hard slog.

In our band, a ritual game of “spot the influence” was played each time our song writer came to rehearsal with a new song.  The rule of thumb was that it was OK if a new song called to mind something else as long the “something else” had been a massive hit! We always knew that, in attempting to create something new and original, we were “standing on the shoulders of giants”.  But we were clear where the line was.  At no stage did this inhibit our creative process in crafting new songs and I believe the same was and remains the case for other Australian musicians. It’s pertinent that Australia today has a vibrant hip hop culture that thrives on sampling and remixing.  It’s a scene that has flourished under our current copyright regime.

The submissions to the ALRC enquiry referred to by Suzor and Choi that called for fair use to be introduced, and the ALRC’s Report which recommended it, were big on rhetoric about how fair use would encourage innovation, but short on convincing evidence (in my opinion).  It’s a little remarked fact that the proponents of fair use for Australia include large corporations with serious vested interests in having it implemented.  Their interest in influencing Australian copyright law and their ability to co-opt local academic and cultural institutions to their cause appears inversely proportional to the degree to which they are prepared to submit to our tax laws.

The US experience, where fair use has been a feature for decades, belies the claim that fair use is inherently an enabler of real innovation – to take one example, Google originated under a fair use regime, but its products and practices have been the subject of copyright litigation ever since its inception.  Cases in the US about the boundaries of fair use continue apace, so the claim that it inevitably provides creatives with greater freedom and certainty to innovate must be taken with a grain of salt.

Suzor and Choi cite the recent US case in which Pharell Williams and Robin Thicke’s song Blurred Lines was found to have copied an earlier song written by Marvin Gaye as another example of the way in which, as they see it, modern copyright law is inhibiting creativity. This example makes no sense in the context of their other arguments; the Williams/ Thicke case occurred in the sort of fair use jurisdiction which they are campaigning to implement in Australia, so it doesn’t support their view unless they’re arguing that fair use as applied in the US is too restrictive.

Suzor and Choi say that the Down Under decision “has been heavily criticised by Australian artists”.  They quote the cartoonist Michael Leunig:

“A quotation or a tribute or a homage if you like, where you quote from the culture you grew up on, is entirely natural and spontaneous and proper. It reinforces and celebrates culture. It’s culture making. And I grew up on that song. I mean at school we sang that song day and night. It just goes into you – it belonged to us all.”

Perhaps his 24/7 exposure to Kookaburra dulled Leunig’s critical faculties, as this statement makes as little sense as his odd, anti-scientific views on other subjects such as vaccination.  Many Australians have grown up with his work as part of our culture.  Does this mean we have the right to appropriate an iconic element of his work, say his “Mr Curly” character, without Leunig’s consent? In the online store section of his website, he states:

“If your project is being produced, written, projected or made within an educational or community setting, you may reproduce, print or project a Leunig cartoon free of charge.’

This is generous, but note that the permission does not extend to modifying or adapting any of his works or using them to create derivative works, even in an educational or community setting.  Where does Leunig derive his ability to give or withhold that permission and set its parameters?  The Copyright Act that he so maligns, of course.

In relation to commercial use of his cartoons, Leunig has this to say:

“If you wish to reproduce a Leunig cartoon for a commercial project or publication, please email his office with details and we can provide you with high resolution files. There is a small royalty fee applicable.”

Apparently whimsy comes at a price.  Again, Leunig relies on the Copyright Act to ensure that he is remunerated when he thinks it is appropriate.  This is as it should be.  But the question remains:  how would Leunig respond if an antipodean incarnation of the US artist Richard Prince, who has made a fortune under US copyright law on the back of his “fair use” of the work of other artists, appropriated some iconic element of Leunig’s work for a commercial purpose without asking for permission or paying any royalty?

Under Australia’s Copyright Act Leunig would have the right to say something if that happened. Under US law, Patrick Cariou tried and (mostly) failed when Prince did that to him.  The fact that some of Prince’s appropriation was deemed fair use and some of it was held to infringe the copyright in the original works simply shows how uncertain the application of fair use principles remains in the US.

At another point, Suzor and Choi say, in relation to the Down Under case:

“Crucially, Conomy and Hayes both point out that the people who sued Men at Work didn’t even write Kookaburra Sits in the Old Gumtree. Poet and composer Marion Sinclair penned the song for a Girl Guides competition in 1934, and later assigned her copyright in the work to Larrikin.”

It’s trite law that copyright is personal property and is capable of assignment and being licensed.  Are we really being told that this unremarkable feature of copyright is “crucial” to a critical view of the judgment?   The creatives whom Suzor and Choi purport to champion would suffer greatly if this feature were to be removed or truncated.  And their comment completely misses the point that it wasn’t the writers of Down Under who were ordered by the Court to compensate Larrikin but the owner of the copyright, EMI.

Suzor and Choi also assert  that “Fair use allows courts to excuse copying that isn’t harmful.”  “Greg Ham’s flute riff” they continue “is exactly the kind of tribute that imposes no costs on the original creator.”

It’s hard to know what this means.  The ability of a copyright owner to control the use of the work is fundamental to maintaining its commercial value and, where the writer retains ownership, his or reputation. One of the unfair (in my view) aspects of the decision against Cariou was that Prince was held to be entitled to appropriate his work because Cariou had not actively sought to licence its use.  Under fair use, the Court did not need to consider whether Cariou might have had any principled objection to re-use of his work.

In pursuing this sort of quasi-economic line, Choi and Suzor risk reducing the status of the artistic works that they purport to champion to that of a piece of land that is to be treated as a scarce resource and must not be left “fallow”.  There’s a good argument that the opposite is true in art – that creative innovation is best fostered by a legal regime that discourages lazy appropriation of specific expressions of general ideas and rewards creators who develop truly innovative new expressions. “More Cariou, less Prince” should be the goal, on this view.

From a copyright perspective, the Down Under case is not controversial.  Copyright in a musical work is infringed if, among other things, the work, or a “substantial part” of it, is reproduced without the licence of the copyright owner. The “substantial part” test is assessed qualitively, not quantitively, but on either measure the section of Kookaburra that was included was a substantial part of the original.  The fact that the part of Kookaburra that was used formed only a small part of Down Under is not to the point in a copyright case.

In my view, the authors’ co-option of the death of Greg Ham to make an ideological point about copyright law borders on offensive.  It seems that they regard the Down Under case as important enough to justify this.  If that’s the case, Oliver Wendell Holmes Jr said it better than I could have:

“Great cases, like hard cases, make bad law. For great cases are called great not by reason of their real importance in shaping the law of the future, but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment.”

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Serious issues

Author’s note: this post has been updated since publication.

It’s surprising how much controversy has been generated by the Online Copyright Infringement Report published recently by Australia’s Department of Communications.  It’s a modest document.  It reports the results of 2,630 interviews conducted  in March and April 2015 with Australian internet users aged 12 years and over. It provides some analysis of the interview results.  It’s an interesting but not particularly startling read; a useful addition to the literature, one might have thought.

Apparently not. The reaction from Australian copyright commentators on Twitter has been swift and brutal.  “Loving watching Twitter take apart @CommsAu’s witless piracy drivel #derpicide” tweeted Crikey correspondent Bernard Keane to his 46,000 followers.

Much of the critical response to the Report has adopted a critique written by Campbell Simpson in the Australian edition of the online tech journal Gizmodo.  Simpson’s piece is titled “The Australian Government’s Copyright Infringement Report has some problems with the word ‘Illegal’”.  Links to the article have been tweeted with apparent approval of its content by a number of commentators, including Keane and Queensland University of Technology academic Matthew Rimmer.  Both are prominent critics of recent attempts by rights holders and the Australian Government to control online copyright infringement.

Simpson’s key point is that the Report describes unauthorised downloading as illegal.  “The report has serious issues, though,” he says “including the rampant use of the word “illegal”.  He continues:

“The use of the word “illegal” even to refer to material downloaded that (allegedly) infringes on the copyright of a rights-holder is misplaced.  It’s not clearly and blatantly illegal in the strictest use of the word; it is a civil issue rather than a criminal one and one that you may be sued  rather than prosecuted for, by a private party rather than a police or government body.  This is an ongoing issue with government and media reporting on the topic of copyright infringement.”

This reference to “government and media reporting” echoes a line of argument that has been made before by those critical of attempts by rights holders to contain online infringement.  Another technology commentator, Stilgherrian, recently tweeted:

“”Illegal” and “theft etc” are all legally incorrect propaganda used by the rights holders”.

According to Simpson, this mis-use (as he sees it) of the word “illegal” is “the big issue” with the Report.  There is a fundamental problem with his view.

Copyright infringement occurs when the infringer does something in relation to a copyright work, such as downloading a movie, without the licence (i.e. the consent or authority) of the copyright owner.  In other words, the infringer’s act is “unauthorised”.

The Macquarie Dictionary is recognised by Australian courts as a source of evidence for the plain Australian English meaning of words.  How does it define the word “illegal”?

“adjective 1. not legal; unauthorised”.

I happen to agree with Simpson that it is not strictly correct to call a civil wrong “illegal” and he’s correct when he says that the Copyright Act doesn’t use the word.  However, if a recognised authority for evidence of the plain meaning of words in Australia says that “unauthorised” and “illegal” are synonyms, it’s a bit rich to construct a whole article around the fact that the authors of the Report have taken the same view and to suggest that this somehow means that there are “serious issues” with their methodology and conclusions.  Even if the Macquarie definition was different, he is making a semantic point at best that has little to do with the quality of the Report.

Simpson continues immediately after the extract above:

“Similarly the copyright infringement report calls uTorrent and BitTorrent “illegal peer-to-peer methods” – that is, methods that illegal downloaders use to access copyright infringing content.”

From this, Simpson makes the point that peer to peer technology is agnostic as to the intention of its users and that calling peer to peer applications illegal makes as little sense as calling the internet illegal or, as he puts it “calling a car company “illegal” because their car was used by a completely unassociated individual for a ram-raid on a shop or an ATM”.

The phrase “illegal peer-to-peer methods” does not appear anywhere in the Report itself, although it does appear in a diagram in separately published “Summary of Research Findings“.  I can find no basis in the Report itself for any suggestion that the Report’s authors regard peer to peer applications in themselves as “illegal”.  The closest to that sort of statement that appears in the Report itself is the comment on page 44 that “Non-infringers were a lot more likely to be using legal services such as ABC iView, SBS On Demand, TENPlay and Plus rather than peer-to-peer methods.”  However, this statement falls far short of alleging that peer-to-peer methods themselves are inherently illegal.

The use of the word “illegal” in the diagram in the Summary is sloppy work by the authors, and they deserved to be called out on this by Simpson and to be criticised for it (especially given that this work has been done for a Government department, as Simpson and others have pointed out, and that it can be expected that many people will look at the Summary rather than the full report).  However, in my view Simpson again is making a semantic “gotcha” point about the Report based on wording in an ancillary document and in doing that he does not, in my opinion, fairly address the information and conclusions in the Report.

In my view, analysis of this type does nothing to advance discussion of issues that are important for the many people and organisations who create and make use of copyright material in Australia.  Unfortunately, it’s all too prevalent on both sides of the debate.

Incidentally, an accurate and far more nuanced evaluation of the Report, written by Josh Taylor, is available on the Crikey site (it’s paywalled at present).  Dr Rimmer has also stated on Twitter today that he considers that the Report has methodological and terminological flaws and would have benefited from peer review prior to publication.

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I am a creator, so why am I not a Creationista fan?

In my legal practice I work with clients who are, variously, users, creators and owners of copyright material.  Some of them are across all 3 categories.  Last year I assisted a not for profit organisation to prepare one of its submissions to the recently completed enquiry by the Australian Law Reform Commission into Copyright Law and the Digital Economy.  As a musician, I am to some extent a creator of material and to a large extent a “user” of material created by other people.  I understand both sides of the copyright coin. 

I was intrigued when I first heard about the Creationistas and their online campaign for copyright reform (see http://www.creationistas.com).  Although I agree with aspects of their campaign, I am disappointed in the misleading manner in which significant elements of it are expressed.

The Creationistas argue that Australian copyright law is broken, that the reason for this is that the activities of ordinary users of content, digital technology and social media inadvertently infringe copyright and they either expressly state or strongly imply that in most cases the infringement also constitutes criminal conduct.  The solution they propose to all of this is to introduce a broad fair use exception to copyright infringement.  All will be well if this is done because “we are all creators now”.

Introduction of fair use would represent a radical change to Australian copyright law.  In my view, radical changes to legislation should be based on evidence and should respond to serious and actual (rather than perceived or confected) deficiencies in the existing regime and it should be clear that the changes will be beneficial, rather than just replacing existing problems with new ones.  I am distrustful of campaigns that overstate or twist the facts in the service of a particular viewpoint.

There are arguments for and against the introduction of fair use in Australia.  Some of them were canvassed by the ALRC in its discussion paper published in June 2013.  There was no suggestion that fair use is needed because the current regime criminalises the everyday online activities of ordinary Australians.  The reason for this is that the assertion that this is the case (made throughout the Creationistas’ videos) is baseless.

Here are some examples of what the Creationistas say:

  • Copying a photo of yourself or your “crew” and uploading it to Instagram is a criminal offence;
  • Converting a movie from a DVD to a tablet for personal use is a criminal offence; and
  • A person who shared the Creationistas’ videos on social media would be gaoled for 5 years and fined $93,500 if not for the fact that the group has invited viewers to share them.
  • Creativity is not a crime.

The Creationistas’ videos present criminal liability in the examples they produce as inevitable – as if it’s like a speeding offence. This is what lawyers call “strict liability”.  This is wrong and misleading, because none of the criminal provisions in the Copyright Act that are relevant to the Creationistas’ examples impose strict liability.  They all require proof beyond reasonable doubt that the conduct was intentional or reckless, depending on the context.  Well, you might say, why should it be necessary to test the intention of an ordinary person engaged in every day social media use (for example) in order to determine whether or not their conduct is criminal? The answer is that it is not necessary, because the sections of the Copyright Act that the Creationistas are referring to do not apply to that sort of conduct in any case.  

The rare (I can find references to only 3) Australian criminal prosecutions relating to copyright infringement have all related to large scale commercial activity.  This is consistent with Parliament’s declared intention that the legislation would apply to conduct where there is criminal intent.  This is also borne out by the wording of the sections themselves and the way in which they have been interpreted by the courts as the following examples demonstrate.[Copyright Amendment Bill 2006, Further Supplementary Explanatory Memorandum, Notes on Amendments, paragraphs 2 & 3].

  • The very clear statement in one of the Creationistas’ videos that burning a DVD and transferring it to a tablet for personal use on a budget plane trip is a criminal offence because it would involve removing a technological protection measure is plainly wrong.  The only relevant section in the Act, section 132APC, specifically states that an offence only occurs if the person removing the TPM does so “with the intention of obtaining a commercial advantage or profit.”  
  • The headline statement in the Creationistas’ first video that sharing it without consent and the statement that uploading a copied photograph to Instagram would be a a criminal offence are also wrong. The relevant section, 132AI(2), requires that the distribution occur “to an extent that affects prejudicially the owner of the copyright”.  There is Australian case law on what these words mean and it is clear that the sharing or distribution of the video must be for the purpose of commercial advantage or private financial gain or involve some element of unjust enrichment. [United States of America v Griffiths [2004] FCA 879 at para 153, aff. Griffiths v United States of America [2005] FCAFC 34 at para 109.]

This demonstrates that there’s no real and pressing issue of criminalisation of everyday activity that needs to be addressed by radical changes to the Copyright Act.

There are broader (and more important) concerns here as well, given the Creationistas’ claim to speak on behalf of content creators.  

  • Some of the recent fair use cases in the US have had less than optimal outcomes for the originating creators of the works in suit.  In addition, the creators on the losing side have tended to be less commercially successful artists whose works have been appropriated by far more powerful artists.  For example:
    • In Prince v Cariou, the originating artist, Patrick Cariou, was a photographer who made only a few thousand dollars from the photographs appropriated by Richard Prince despite having invested years in investigating his subjects (Jamaican Rastafarians), gaining their confidence and trust and photographing them.  Prince, on the other hand, is a hugely successful appropriation artist.  His works sell for millions of dollars.  
    • One of the reasons given by the appeals court for finding that Prince was protected by fair use was that there was no evidence that Cariou had ever, or would have contemplated, licensing his works for the sort of use made by Prince and that this meant that his commercial interests were unaffected by what Prince did to them.  This suggests that a creator is at risk of unremunerated appropriation if he or she does not actively pursue uses of works even if they are uses that the creator might find objectionable.
    • The Cariou case also demonstrates that the judgment as to what constitutes fair use can be very difficult to make notwithstanding the considerable body of case law that is now available in the US to provide guidance.  There were 30 photographs at issue in Cariou.  The court at first instance rejected Prince’s argument that his appropriation of Cariou’s photographs was fair use.  The first instance decision was overturned on appeal, but only in respect of 25 of the photographs.  A decision as to whether Prince’s treatment of the other 5 photos was fair use was remitted to the first instance court!  So much for certainty!
    • The statement in one of the Creationistas videos that fair use only applies where there is no commercial detriment to the original artist is not correct; the appeals court in Prince v Cariou (see below) stated that there can be fair use even where the market for the original work is suppressed or even destroyed by the secondary use.
    • The street artist Seltzer sued Green Day, a band that has sold more than 70 million albums.  Their appropriation of his work “Scream Icon” for use in a video backdrop during their concerts was held to be fair use even though the original was clearly identifiable throughout the video while it ran during performances of one of their songs.  No consent was sought and Seltzer received no remuneration.  After winning the case, the band sued Seltzer on the basis that the case he had brought against them was frivolous and he was ordered to pay them more than $200,000 in attorneys’ fees (a decision since reversed on appeal).
  • There was little or no analysis in the Discussion Paper that the ALRC released in June 2013 as part of its copyright enquiry of the intersection between fair use and the existing moral right of any author to object to derogatory treatment of his or her work.  It may be that the enquiry considered that moral rights would co-exist comfortably alongside fair use.  However, it seems to me that a case such as Cariou highlights the potential for conflict between the 2 regimes.  Moral rights are not recognised in US law and this could be a key area of dispute if fair use is introduced in Australia without some express dilution of the existing moral rights provisions.  Australia’s artistic community waged a long and vigorous campaign in the late 1980s and 1990s for the introduction of moral rights.  It is a moot point whether the success of that campaign has achieved any real lasting benefit for authors.  However, from a policy perspective, it seems curious to me that a jurisdiction that less than 15 years ago enacted legislation which enshrines the right of an author to have some control over future uses of his or her work (even where he or she doesn’t own the copyright in the work) would now contemplate undercutting that right by implementing fair use.
  • In one sense, the entire thrust of the Creationistas’ campaign is misleading, in that it’s a distraction from the really pressing problems facing creators and copyright owners (as opposed to people who simply want to share what others have created).  Individuals in Australia are not being sued routinely by copyright owners for engaging in everyday activities such as sharing video material on social media and they are certainly not being prosecuted under the criminal law as the Creationistas imply.  There is little or no convincing evidence that the undoubted anachronisms in Australian copyright law as it relates to personal use of copyright material are inhibiting innovation or creative activity.  However, unauthorised downloading and distribution of digital content continues apace.  If copyright is broken, this is where the serious fracture lies and it’s not an issue that will be addressed at all by introducing a fair use exception (which is not to say that I have solutions to the problem or that I consider that actions that content owners have taken or failed to take are not part of the problem).
  • There are undoubted problems with aspects of Australia’s Copyright Act in the context of digital technology.  However, many of these problems could be overcome without introducing a broad fair use defence.  It is arguable that replacing current terminology with technologically neutral language and broadening the current statutory defences to infringement in areas such as non-commercial personal use of content and non-commercial use of content by not for profit organisations such as libraries and other cultural institutions would be more manageable alternatives.  

In the context of some of the other issues that are part of contemporary debate in Australian society, the introduction of fair use is a secondary issue.  Life will go on (in relative comfort for most Australians) regardless of whether or not it occurs. My view is simply that creators of content and owners of copyright need to be alert to the fact that fair use will not be a panacea.  US experience suggests that it will not remove ambiguity, that there is likely to be significant litigation while the principles are worked through (and after) and that there will be winners and losers. 

There are legitimate questions to be debated about the extent to which the powers of the state should be invoked to protect private property interests.  It is also healthy to question and challenge the motives and actions of large-scale owners of copyright and other intellectual property rights, but this should not blind us to the fact that there are also powerful commercial interests behind the push for fair use.  Above all, the decisions we make in this area, as in others, should be based on the facts.

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