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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About noonanite

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