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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About noonanite

Paul Noonan is a lawyer and musician based in Melbourne, Australia.
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