For our final blog post of the week we are honored to welcome Dr. Matthew Rimmer. Dr. Rimmer is an Australian Research Council Future Fellow working on Intellectual Property and Climate Change. He is an associate professor at the ANU College of Law and an associate director of the Australian Centre for Intellectual Property in Agriculture.

Who Killed Fair Use? A Copyright Murder Mystery

Down Under

by Matthew Rimmer

Fair Use Week has been celebrated this week in the United States, with great gusto and enthusiasm. At Harvard Library, Kyle Courtney commented: ‘Fair use is critical and important to innovation, scholarship and research in the United States.’ Kenneth Crews emphasized that ‘the new technological ventures, like other creative pursuits, require fair use and other copyright limitations for experimentation and success.’ Legal director Corynne McSherry of the Electronic Frontier Foundation has highlighted the significance and the importance of the defence of fair use: ‘Fair use provides breathing space in copyright law, making sure that control of the right to copy and distribute doesn’t become control of the right to create and innovate.’ For Techdirt, Mike Masnick has emphasized that fair use is a right – and not an exception or a mere defence. Peter Jaszi and Pat Aufderheide have highlighted the contextual operation of fair use in particular artistic communities. Molly Van Houweling of the Authors Alliance has written about the ecstasy of influence – the role of inspiration and appropriation in all acts of artistic creation. Fair use has been celebrated as a many-splendored legal creation.

While fair use has been feted and celebrated in the United States, fair use has been under attack, both in the United States, and in other jurisdictions. Fair use is in peril. Copyright owners have sought to confine the operation of fair use in litigation in the United States, and in policy debates. Political lobbyists have sought to prevent the adoption of fair use in Australia, and other countries elsewhere in the Pacific Rim. Fair use has been undermined and undercut by intermediary liability schemes, technological protection measures, and contract law. Moreover, fair use has been threatened by international trade agreements – such as the Trans-Pacific Partnership.

In his book Republic, Lost, Professor Lawrence Lessig observed that copyright reform would be unobtainable until there was substantive reform of political donations and lobbying in the United States. He noted: ‘Between 1998 and 2010, pro-copyright reformers were outspent by anti-reformers by $1.3 billion to $1 million – a thousand to one.’ Lessig emphasized that such political donations distorted policy-making in respect of copyright law in the United States across a range of topics – including the copyright term extension; copyright exceptions; and copyright enforcement. The problem has been further accentuated by the decision of the Supreme Court of the United States in Citizens United – which allowed for greater contributions of ‘Dark Money’. Professor Zephyr Teachout has highlighted such problems in the political and judicial process in her book, Corruption in America. There has been concern in that United States that copyright owners have been trying to curtail the sweeping defence of fair use in the debates over the reform of copyright law. The language of ‘fair use creep’ has been deployed by copyright owners.

In Moral Panics and The Copyright Wars, William Patry said that ‘the current piracy campaign is intended to create a negative association with all acts not authorized by copyright owners, including uses that are clearly fair use and therefore, lawful, such as non-commercial copying for personal use.’ He emphasized how copyright owners sought to confine and limit the scope of copyright exceptions. In his book, How to Fix Copyright, William Patry again highlighted the moral panic over fair use promoted by the copyright industries. He said that ‘the rhetorical device of turning fair use into a moral panic is made by those who oppose adapting copyright to the digital era.’ Patry commented: ‘Fair use thus serves as a classic moral panic: an effort by vested interests to preserve the status quo through creating a false enemy whom, we are told, must be vanquished for the alleged good of society as a whole.’

Legacy copyright industries have sought to frustrate, delay, and block the introduction of broad copyright exceptions – such as the defence of fair use – overseas. In this context, Australia is an illustrative case study. Over a number of decades, there have been a number of policy inquiries, which have recommended the adoption of a defence of fair use under Australian copyright law. Yet, copyright owners have engaged in a concerted effort to block the adoption of such recommendations at a political level. There has been a campaign to kill and murder fair use before it has a chance to develop in Australia.

In 2014, the Australian Law Reform Commission announced the publication of its report on Copyright and the Digital Economy. The centrepiece of the report was the proposal for the introduction of an open-ended defence of fair use for Australia. The Commission stressed:

Fair use also facilitates the public interest in accessing material, encouraging new productive uses, and stimulating competition and innovation. Fair use can be applied to a greater range of new technologies and uses than Australia’s existing exceptions. A technology-neutral open standard such as fair use has the agility to respond to future and unanticipated technologies and business and consumer practices. With fair use, businesses and consumers will develop an understanding of what sort of uses are fair and therefore permissible, and will not need to wait for the legislature to determine the appropriate scope of copyright exceptions.

The report emphasized that a defence of fair use would be particularly useful to address emerging trends in the digital economy – such as 3D printing, additive manufacturing, Big Data, cloud computing, and the Internet of Things (IOT). Professor Jill McKeough – who was in charge of the inquiry – has highlighted the importance of access to content under copyright law.

Professor Jill McKeough on Copyright Law and Access to Content (2015)

In response, copyright owners waged a political lobbying campaign against the introduction of a defence of fair use in copyright law. Film and Television groups – including Roadshow – and Rupert Murdoch’s News Limited railed against the introduction of a defence of fair use in Australia. The copyright owners engage in ‘swiftboating’ and accuse of the defence of fair use of being alien and foreign, uncertain and indeterminate, expansive and avaricious. The copyright owners have wanted to kill the fair use proposal stone-dead. In the election year of 2013, Village Roadshow – the makers of the Lego Movie and Mad Max – made substantial contributions, both to the Liberal Party of Australia, and the Australian Labor Party. The film company has pushed for greater rights and remedies for copyright owners; and limits upon the operation of copyright exceptions. The new Attorney-General George Brandis has long been a supporter of a copyright maximalist position. He worked closely with the copyright industry in considering the question of copyright law reform in Australia. Freedom of information requests by Josh Taylor revealed that the Attorney-General George Brandis had consulted narrowly with copyright owners, such as Village Roadshow and Foxtel – but had snubbed consumer groups, internet service providers, and public interest groups.

Sympathetic to the concerns of copyright owners, the Attorney-General George Brandis dismissed the introduction of a defence of fair use into Australia out of hand. He suggested: ‘These recommendations will no doubt be controversial and the Government will give them very careful consideration.’ Brandis was particularly concerned about enhancing the rights and remedies of copyright owners: ‘We are particularly concerned to ensure that no prejudice is caused to the interests of rights holders and creators, whether the proposed fair use exception offers genuine advantages over the existing fair dealing provisions and that any changes maintain and, where possible, increase incentives to Australia’s creative content producers.’ He maintained: ‘Without strong, robust copyright laws, they are at risk of being cheated of the fair compensation for their creativity, which is their due.’ Brandis insisted: ‘It is the Government’s strong view that the fundamental principles of intellectual property law that protect the rights of content creators have not changed, merely because of the emergence of new media and platforms.’ He observed: ‘In this changing digital world, we must look for the opportunities, but in reviewing the intellectual property laws, the Government has no intention of lessening rights of content creators to protect and benefit from their intellectual property.’

At estimates in December 2014, Senator Jacinta Collins of the Australian Labor Party questioned the Attorney-General about what, if any, progress had been made in respect of copyright law reform. She asked: ‘Can you advise us on what progress has occurred since February?’ Senator George Brandis responded:

It is under consideration by government. The online piracy issue has been identified as a specific area of reform within the broader topic of overall reform of the Copyright Act, and the effort and public discussion in relation to copyright reform in the past year have been largely focused on that particular topic. Broader reform of the Copyright Act is a matter for the future.

Senator Jacinta Collins pointed out that copyright enforcement was outside the terms of reference of the inquiry: ‘That topic was not really covered by the Law Reform Commission report, was it?’ Senator Brandis refused to give an indication of the time frame for the main areas of the Government response to the Australian Law Reform Commission report. He said: ‘The question of the fair use exemption is as, if you follow this area, you would know, one of the more vexed debates.’ Avoiding the question, the Attorney-General said: ‘Whether we have a general fair use exemption or whether we have more particular categories of exemption, my views are as I expressed them to be.’

Instead of fashioning a copyright defence of fair use, or even making reforms to current copyright exceptions, the Attorney-General George Brandis has pushed for the introduction of a new copyright code, governing intermediary liability in respect of Australian copyright law. A draft Copyright Notice scheme has been developed. There has been much disquiet about the operation of the new ‘Three Strikes’ copyright crackdown by commentators such as Adam Turner, Claire Reilly, David Swan, and Josh Taylor. Jeremy Malcolm, an Australian policy analyst working with the Electronic Frontier Foundation, makes the point:

Meanwhile, as Australia fusses around with policing copyright against Internet users in a likely vain attempt to curtail piracy, it is missing the opportunity to make a much longer-term investment in the country’s technological future. Back when Australia’s Attorney General first began talking about instituting a graduated response regime, he also passed up the chance to embrace the Australian Law Reform Commission’s recommendation that fair use be added to copyright law. In Fair Use Week, it bears asking—is the adoption of a copycat graduated response scheme that has failed elsewhere in the world really going to do more for homegrown creativity and innovation than embracing fair use?

In addition, the Attorney-General George Brandis and the Coalition Government have been supportive of the introduction of Data Retention regime. There has been concern that such data could also be deployed in copyright disputes – whether by copyright owners in civil disputes, or law enforcement agencies like the Police in criminal disputes.

Joint Press Conference on Data Retention Measures with Attorney General George Brandis and Malcolm Turnbull

Digital locks – known by the jargon ‘technological protection measures’ – also pose a significant threat to copyright exceptions, such as the defence of fair dealing, and the defence of fair use. Corynne McSherry of the Electronic Frontier Foundation observes: ‘Fair use has been under assault for decades, thanks to laws like Section 1201 of the DMCA, which makes it illegal to bypass a technical protection measure under most circumstances even if your conduct is an otherwise lawful fair use.’ In his book, Information Doesn’t Want to Be Free: Laws for the Internet Age, Cory Doctorow highlights the folly of digital locks, technological protection measures, and copy protection. He discusses the collateral impact of digital locks upon creativity, innovation, and freedom of speech. Doctorow has started Apollo 1201 with Electronic Frontier Foundation as a Moon-Shot project to rid the world of digital rights management. He maintains: ‘We all deserve a better future—one without DRM.’

Contract law also poses a significant threat to copyright exceptions. In the Australian debate, film and Television groups – including Roadshow – have maintained that they should be able to contract out of copyright exceptions, as part of the operation of the marketplace.

Senator Scott Ludlam of the Australian Greens on the Trans-Pacific Partnership (2015)

International treaties also pose a real and dangerous threat to copyright exceptions and access to knowledge. On the 12th February 2015, Senator Scott Ludlam of the Australian Greens expressed concerns in the Australian Parliament that Australia’s copyright exceptions would be affected by the Trans-Pacific Partnership:

We effectively imported some of the worst aspects of US IP law, without their protections. The US has fair-use clauses, which mean that you cannot be prosecuted under US intellectual property law for doing stuff that is quite clearly not impinging on profits—commercial-scale piracy and that kind of stuff. In Australia the situation is very much unclear, and it appears that the Trans-Pacific Partnership, from what we know of the IP chapters, will make that situation much worse.

Ludlam is also concerned that copyright owners will deploy investor-state dispute settlement against the introduction of copyright reforms. He fears: ‘If we sign up to the Trans-Pacific Partnership, which then embeds all kinds of property rights that did not exist before, for the rights holders—if this parliament then decided to do as the Australian Law Reform Commission recommended and institute a fair-use regime, that could be struck down by unelected trade bureaucrats in a tribunal, and the Australian government might choose to not even contest what would likely be a very expensive and extensive arbitral process.’ Ludlam expressed his concerns that the threat of investor actions could have a chilling effect upon progressive copyright reform in Australia.

Far from being a privilege only available in the United States and a few countries, fair use should become the norm and the standard in Australia, the Pacific Rim, and across the world. The integrity of fair use needs to be further protected from collateral attacks from political lobbyists; intermediary copyright law; technological protection measures; and contract law. Fair use needs to be able to flourish and grow, without political interference or legal sabotage.

Dr. Matthew Rimmer is an Australian Research Council Future Fellow, working on Intellectual Property and Climate Change. He is an associate professor at the ANU College of Law, and an associate director of the Australian Centre for Intellectual Property in Agriculture (ACIPA). He holds a BA (Hons) and a University Medal in literature, and a LLB (Hons) from the Australian National University, and a PhD (Law) from the University of New South Wales. He is a member of the ANU Climate Change Institute. Dr Rimmer is the author of Digital Copyright and the Consumer Revolution: Hands off my iPod, Intellectual Property and Biotechnology: Biological Inventions, and Intellectual Property and Climate Change: Inventing Clean Technologies. He is an editor of Patent Law and Biological Inventions, Incentives for Global Public Health: Patent Law and Access to Essential Medicines, Intellectual Property and Emerging Technologies: The New Biology, and Indigenous Intellectual Property: A Handbook of Contemporary Research. Rimmer has published widely on copyright law and information technology, patent law and biotechnology, access to medicines, plain packaging of tobacco products, clean technologies, and traditional knowledge. His work is archived at SSRN Abstracts and Bepress Selected Works.