On my recent trip to Australia I was honoured to be asked to participate as a judge in determining the winner of the annual Kevin Lindgren prize for the best copyright presentation by an Australian law student. Named in honour of Dr. Kevin Lindgren, AM QC, former Federal Court Judge and President of the Copyright Tribunal, this year was the third year that the prize has been presented by the Copyright Society of Australia. Dr. Lindgren was there and participated as one of the three judges, along with lawyer Alida Stanley, Australian Copyright Council Board member, and yours truly.
This year’s two finalists were Soroya Pradhan, in her final year of a Bachelor of Laws in the University of Adelaide, and Raghav Iyer in his fifth year of a BA/LLB degree from the University of New South Wales in Sydney. Their topics were, for Ms. Pradhan, a comparison of fair use versus fair dealing and their suitability for Australia—a very topical subject given the ongoing Copyright Modernisation Review. The other was “Creative Borrowing, with Mr. Iyer making the case that borrowing is an essential element of creativity, but one that is not necessarily compatible with current copyright law. In fact he calls copyright “an archaic doctrine that is out of touch”. I found it interesting that while the contest was sponsored by the Copyright Society of Australia both topics challenged some of the conventional wisdom on Australian copyright law. But that should not be surprising. A good legal education is more than just absorbing established practices and precedents, and a challenge to the status quo is what you would expect of the next generation of legal practitioners.
Ms. Pradhan’s presentation began by reviewing the essential differences between fair dealing and fair use concepts. She noted that to constitute fair dealing, the use must be for a specific purpose such as research, criticism, parody, news reporting or legal advice (at the current time in Australia). In addition to falling into one of the categories above, the dealing must also be fair, which involves an objective consideration of the purpose and nature of the use (adjudicated by a court). Fair use on the other hand provides the courts with the power to decide what uses will not constitute an infringement of copyright. The statute outlines certain factors that will assist in the Court’s determination, but decisions are made on a case by case basis by the courts, and can be dynamic in that new uses can be determined to be fair, particularly if “transformative”.
Soraya then traced the process of discussions regarding possible adoption of a fair use system in Australia, from the recommendations of the Australian Law Reform Commission to the Productivity Commission report in 2015, asking the fundamental question as to whether fair dealing is equipped to handle developments in technology. She made the argument that a number of technical uses in Australia (search, data mining, cloud storage and open source code) may infringe copyright yet do not fall neatly within the four corners of existing fair dealing or statutory exceptions. (This is certainly subject to debate and is one of the issues currently under review as part of updating the Copyright Act). She noted however that these uses may also not be fair under a fair use doctrine, depending on their degree of transformation. “In order to keep up with technological developments, fair use is clearly preferable, but it is far from the perfect solution”.
Is there a “perfect solution”? She concluded that “facilitating development through the use of exemptions provides an “all or nothing” approach to the balancing competing interests, where one stakeholder benefits significantly and the other is largely without recourse. While “fair use” is a start, further exploration of methods to allow free development and provide compensation should be further explored – the most notable of these proposals is in the form of profit-sharing from successful enterprises.” Receiving compensation is a proposal that most rights-holders would certainly support. And if they got shares in Google, I am sure they would be ecstatic.
Mr. Iyer by contrast addressed the issue of copyright from a different perspective, arguing that “creative borrowing” (by which he meant borrowing in contravention of copyright law) was an essential element of creativity. From Walt Disney’s creation of “Steamboat Willie” inspired by Buster Keaton’s silent comedy film “Steamboat Bill Jr.”[i] to the dojinshi phenomenon within Japanese manga, Raghav argued that new creations have always come through borrowing. Dojinshi, I learned, is a subculture of manga, where “amateur users adopt the storylines and characters of popular manga to build on existing manga works”. Mr. Iyer thus challenged the “Romantic conception” of authorship and originality where works must be the product of individual, autonomous “genius” and posited that strong adherence to this concept can prevent users in the public domain from creating.
He explored the philosophical underpinnings of borrowing, citing composer’s use of sounds they have heard before that may be buried in their subconscious. There is even a psychological condition called “cryptomnesia” where a person involuntarily recalls a forgotten memory and is convinced that it is an original idea. It is plausible for two different people to remember a forgotten song and subconsciously copy it years later, but this could lead to a case of copyright infringement. (This of course makes us recall the Stairway to Heaven case currently in the US courts). Raghav referred to the Larrikin Music case in Australia which in his view set a cautionary principle for copying practices, possibly having a chilling effect on creativity. He came to this conclusion out of his own experience as a composer. (He composed and played the music for a film score for the award winning ALSA–Australian Law Students Association– documentary Yindyamarra, and worried that he unconsciously might be reproducing the work of others without even realizing it.) Cases that test the limits of fair use or fair dealing are, of course, of particular interest to the law profession in determining whether or not a particular use constitutes infringement, bearing in mind the core principle that copyright is the expression of an idea, not the idea itself.
Dojinshi is technically illegal under Japanese law yet it has become the foundation of the manga industry. So how can it exist? It exists because, according to Mr. Iyer, “the original manga authors encourage the infringing acts of dojinshi users”, recognizing that this is a way to bring new talent into the industry. Dojinshi helps to promote sales of original manga and brings in new ideas. Stores have opened selling both dojinshi and manga side by side. In his conclusion, he poses the fundamental question that in a world of memes, fandoms, gifs and remixes, are we relying too much on the “archaic doctrine” of copyright?
Copyright litigators and judges clearly have to look at both sides of a question and indeed, without legal challenges as to what constitutes a fair dealing or fair use, there would be no litigation, and therefore no need for litigators! In this sense, both presentations were grist to the mill of copyright interpretation. In my view, while the two presenters may have been challenging the “conventional wisdom” of copyright interpretation in Australia or elsewhere, they were also reiterating a couple of important principles of copyright protection.
The first was Ms. Pradhan’s conclusion that one way to adapt current copyright regimes to rapidly changing technology would be to find a way to share the wealth that is being generated by tech platforms through compensation to rights-holders if the platforms or tech applications want to use protected content. A second, entrenched in Mr. Iyer’s paper, is the concept of permission from rights-holders. Dojinshi would not exist if it was not sanctioned, in effect granted permission, by manga rights-holders. Thus while these two young professionals could be seen to be challenging the status quo, at the same time they incorporated two of the most fundamental principles of copyright–permission and compensation–into their conclusions.
The law is always evolving, whether through new fair dealing exceptions being introduced on a regular basis or through novel fair use interpretations in US courts (which are not infrequently overturned on appeal or contradicted by other court rulings), leading to a dynamic situation where the boundaries are constantly being tested. Licensing content is the normal way to avoid litigation, but litigation is always going to exist. Handling licensing deals, advising rights-holders and if necessary litigating requires skilled advocates, and the excellence of these two Kevin Lindgren Prize competitors demonstrates that copyright law in Australia will have skilled and thoughtful practitioners for years to come.
Oh yes, who won the prize? In a sense they both did by being finalists and through the quality of the presentations, but there was only one prize to be awarded. Raghav Iyer was this year’s winner. Congratulations to both finalists, and to Dr. Lindgren for his inspiration for this interesting event. It was a privilege to have been part of the judging process.
© Hugh Stephens, 2018. All Rights Reserved.
[i] While I have seen Steamboat Willie, as I suspect most people have, I have not seen the Buster Keaton film, but it would appear that apart from the title and the fact that both the cartoon and movie took place on a steamboat, and the use of the song “Steamboat Bill” as accompaniment to the film or in the sound track of the cartoon, there is little resemblance between the two. It is worth noting that Keaton took the title of his film from the song “Steamboat Bill” composed by Arthur Collins in 1911. “Steamboat Bill” is also the song that Mickey sings on the on the steamboat and was apparently used as musical accompaniment to Keaton’s silent motion picture. Thus Disney may have been inspired by the movie and “borrowed” and adapted the title, but his expression of the steamboat captain idea was unique and original. I don’t know but presume the song was properly licensed by both Keaton and Disney.