QUT Submission to Australian copyright notice scheme

We have just lodged our submission to the Communications Alliance draft industry code to introduce a copyright notice scheme.

In making this submission, we suggest that Australia learn from the experiences of other jurisdictions, and avoid some of the mistakes that have been made. In particular, this involves:

  • Ensuring that adequate information is available to evaluate the success of the scheme
  • Ensuring that notices sent to consumers provide full and accurate information that helps them understand their rights and options

  • Limiting the potential abuse of the system, and particularly attempts to intimidate consumers into paying unfair penalties through ‘speculative invoicing’

  • Avoiding the potential for actual or perceived bias in the scheme’s oversight body

You can view the submission here.
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Can you copyright a feeling? Blurred Lines may be the biggest music copyright case of 2015

By Nicolas Suzor, Queensland University of Technology and Kylie Pappalardo, Queensland University of Technology

The year is still young, but this week a judgement was handed down in what may well be the biggest music case of 2015.

Marvin Gaye’s children have won a copyright law suit against Robin Thicke (no stranger to controversy) and Pharrell Williams for the song Blurred Lines. The 2013 hit was found to have infringed Gaye’s musical copyright in Got To Give It Up. A jury in the US awarded damages of nearly US$7.4 million – more than half of the song’s US$16.6 million takings to date.

What exactly was copied?

Strangely, this case wasn’t about comparing the two recordings. It was actually much more confusing than that. Listening to the recordings, the similarities are clear:

Listen for yourself – how similar are the two songs?

But this case wasn’t about copying of the recorded version, but the sheet music.

Importantly, Blurred Lines doesn’t copy the lyrics or the lead melody. Williams admits it has the same “feel”, but claims he was just “channeling that feeling, that late-70s feeling”.

Importantly, you can’t copyright the feel of a song.

The Judge in this case ordered a comparison of only the copyrightable parts of Gaye’s song – and when you listen to that, the two songs start to sound very different:

Then the court also heard a mash-up of Gaye’s music with Williams’s and Thicke’s lyrics on top:

This mashup seems to suggest that the lyrics fit quite well over Gaye’s song, but critics note that this happens quite often – as this clip from Australian comedy group the Axis of Awesome shows. The website Sounds Just Like has lots more examples if you have a few hours to kill.

Copyright infringement, or just a creative homage?

Thicke has admitted that he was influenced by Gaye’s song and wanted to make something with the same feel; but many people think that shouldn’t be enough to infringe copyright.

We’ve seen similar cases in recent years – in 2014, Led Zeppelin faced allegations that the iconic guitar riff in Stairway to Heaven was appropriated from a song by rock band, Spirit. In 2010, Australian band Men at Work were found to have infringed copyright in their hit Down Under, because the flute riff was copied from the 1934 folk song, Kookaburra Sits in the Old Gum Tree.

In some ways, it’s easier to feel angry about these cases – they’re iconic songs that have become part of our cultural landscape; they only took small parts of the original songs; and the similarities were not discovered – or at least litigated – for many years: after 43 years in Led Zeppelin’s case and more than 20 years for Men at Work.

Protecting creativity, or credit-where-credit’s due?

This case highlights a common confusion in what copyright law is about. Contrary to what we often think, copyright isn’t about “credit where credit’s due”. It’s about encouraging people to make and produce new works.

If copyright is about incentives for creativity, this decision makes no sense. No amount of money now will encourage Marvin Gaye to make more music. What this case does do, though, is discourage future artists from revealing their influences and reworking our culture.

Pharrell Williams performs in The Netherlands in 2014.
EPA/Paul Bergen

Blurred Lines sure sounds like Got to Give It Up, but it doesn’t harm the market for the original. Nobody is going to be fooled into settling for Robin Thicke when they’re looking for Marvin Gaye.

Somewhere along the line, copyright has been twisted from its original purpose. Copyright only used to last 14 years. It now lasts for a whole 70 years after the original author dies.

This is well after the commercial life of most works. Got to Give It Up was at its commercial peak around 1977, when it topped the US Billboard Hot 100 charts. The copyright in the song, though, will last another 40 years.

The extraordinary length of copyright means that a huge amount of the material that influences us to create something new is locked away. When copyright does this, it stops being an incentive, and it becomes a tax on creativity.

Where copyright went wrong

The two songs are clearly similar – but they are also entirely different creative works. And that should count for something.

Marvin Gaye.
Wikimedia Commons

In the Down Under case, it was not enough that Men at Work’s song is almost completely different to the Kookaburra Sits in the Old Gum Tree folk song. It was not enough that Men at Work had changed the musical context significantly, combining elements of rock, ska and reggae.

Copyright law focuses only on similarities when assessing infringement. This ignores the way that all creativity builds upon the past.

Sometimes, copyright law is able to distinguish between copying that takes the “idea” or “feel” of something and copying that is actually harmful. Other times, that distinction is more difficult. Thicke and Williams, by some accounts, have been unlucky – caught in the cogs of a legal regime that values earlier creativity over newer creativity, and where protection is too long.

The Conversation

This article was originally published on The Conversation.

Forced negotiations and industry codes won’t stop illegal downloads

Attorney-General George Brandis and Communications Minister Malcolm Turnbull announced yesterday that they expect internet service providers (ISPs) to work with copyright owners to help police infringement.

ISPs will have to agree to a new industry code that passes on warning notices to their customers when copyright owners make allegations of infringement against them. They will also have to start handing over the personal details of subscribers who have several allegations against their name.

The government also plans to introduce an obligation for ISPs to block access to file sharing websites such as The Pirate Bay.

These announcements are better than the government’s last attempt to force ISPs to negotiate, which would have made a mess out of copyright law for everyone. But there are still real problems, and the measures will probably increase the cost of internet access for little, if any, benefit.

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Should social network platforms enforce human rights? IGF 2014 Dynamic Coalition on Platform Responsibility

At the 2014 Internet Governance Forum, the Dynamic Coalition on Platform Responsibility met to discuss the role of private intermediaries in enforcing social norms and law.

One of the most interesting points made by Rebecca McKinnon was that corporations have some (limited) responsibility to protect human rights (see further UN, ‘The Corporate Responsibility to Respect Human Rights’ (2012)).

The UN Guiding Principles on Business and Human Rights explain that

The responsibility to respect human rights is a global standard of expected conduct for all business enterprises wherever they operate. It exists independently of States’ abilities and/or willingness to fulfil their own human rights obligations, and does not diminish those obligations. And it exists over and above compliance with national laws and regulations protecting human rights.
Addressing adverse human rights impacts requires taking adequate measures for their prevention, mitigation and, where appropriate, remediation.

The obligation is pretty light, but it provides an interesting way to look at many current regulatory questions. Whether we’re talking about the ‘Right to be Forgotten‘ or responses to hate speech or revenge porn, it becomes very interesting to decouple the obligations of platforms from their potential liability.

The Dynamic Coalition is trying to work through some of these issues. The Coalition’s first steps will be to focus on the compatibility of platform Terms of Service with human rights standards, and evaluate the processes of due diligence that have emerged for enforcing those standards. The group expects to provide a preliminary report by the end of the year – you can get involved by joining the mailing list.

You can watch a video archive of the event below – or see the transcript here.

The game of clones and the Australia tax: divergent views about copyright business models and the willingness of Australian consumers to infringe

In a forthcoming issue of the UNSW Law Journal, Paula Dootson and I write about the effect of restrictive copyright licensing practices on the willingness of consumers to infringe copyright. This builds on Paula’s PhD work, and we present qualitative evidence to support the common intuition that the lack of access to legitimate content distribution channels increases the willingness of consumers to infringe copyright. But surpisingly, consumers do want to pay for access at a fair price if they can, and they’ll go to significant lengths to do it (like setting up a VPN to access netflix or itunes from another region).

We’ve made a pre-publication draft of the article available.
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Intermediary liability: two submissions to AGD Online Copyright Infringement consultation

We’ve just lodged two submissions to the Attorney-General’s Department consultation on Online Copyright Infringement.

The first submission is from the QUT IP & Innovation Law research group. This submission gives a good overview of a few important points:

  • Copyright infringement in Australia at the moment should be thought of as predominantly a market problem, and we should look for market solutions.

  • Graduated response schemes are unlikely to be effective, but they pose serious risks for due process and the rule of law.

  • The proposed changes would create serious uncertainty in authorisation liability, while at the same time probably won’t actually achieve the Government’s goal.

  • There’s no evidence that website blocking is likely to be effective.

The second submission is on behalf of Creative Commons Australia and the Organization for Transformative Works. This one focuses on the proposal’s likely chilling effects on free expression and the flow of knowledge and culture.

I should also say how incredibly proud I am of QUT IP law students in putting the first submission together. They worked really hard over the short review period and produced a really good piece of work.

Brandis’ leaked anti-piracy proposal is unrealistic

Originally posted on The Conversation by Nicolas Suzor and Alex Button-Sloan.

The Australian Government has proposed Internet Service Providers (ISPs) should monitor and punish Australians who download and infringe copyright.

In a discussion paper circulated by Attorney-General George Brandis, and leaked by Crikey last Friday, the government proposes a sweeping change to Australian copyright law that would force ISPs to take steps to prevent Australians from infringing copyright.

What these steps might be is very vague. They could include blocking peer-to-peer traffic, slowing down internet connections, passing on warnings from industry groups, and handing over subscriber details to copyright owners.

The move comes in response to claims that Australians are among the biggest downloaders of films and television series. Under intense pressure from Hollywood and Foxtel, the government wants to do something to combat copyright infringement.
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KAFTA copyright language hints at overturning iiNet decision, is wholly unsupported by evidence

Kim Weatherall has an excellent analysis of the proposed IP chapter of the Korea – Australia Free Trade Agreement. You should go read it now.

One of the most concerning things is that the agreement would require Australia to give

An unclear, potentially extensive undertaking to ‘provide measures’ to ‘curtail’ ‘repeated copyright infringement on the Internet’ (note – not copyright piracy; not copyright infringement causing substantial prejudice to copyright owners – but any repeated infringement);

This type of wording hints at an obligation to legislatively overturn the iiNet case, or to introduce something like graduated response (three-strikes) or website blocking. As Kim points out, the provision wouldn’t actually require this, but including the language has strong rhetorical force.

Let’s not mince words; this is just stupid. We don’t have the evidence that stronger copyright laws are required, we don’t have evidence that graduated response works, but it is problematic for due process, and there is absolutely no reason, if it is required, that we should entrench these kind of obligations in bilateral trade agreements, where we can’t easily modify them. This isn’t evidence-based policy; it’s abdicating our legislative responsibility to serve the interests of foreign rightsholders. It really makes no sense.

The Marrakesh Treaty could bring the world’s books to the blind

Originally published in The Conversation by Nicolas Suzor and Suzannah Wood.

An estimated 285 million people worldwide are visually impaired. Some 90% of those live in developing nations, where less than 1% of the world’s books are available in a form they can read.

In developed countries, the situation is only marginally better: only around 7% of the world’s books are accessible to print-disabled people.

The right to read is part of our basic human rights. Access to the written word is crucial to allow people to fully participate in society. It’s important for education, political involvement, success in the workplace, scientific progress and, not least, creative play and leisure. Equal access to books and other cultural goods is also required by international law.

The technology now exists to deliver books in accessible electronic forms to people much more cheaply than printing and shipping bulky braille copies or books on tape. Electronic books can be read with screen readers and refreshable braille devices, or printed into large print or braille if needed.

Now that we have this technology, what’s been referred to as the global “book famine” is a preventable tragedy.

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Borrowing a Stairway to Heaven: did Led Zeppelin rip off a riff?

Originally posted in The Conversation by Nicolas Suzor and Eleanor Angel.

More than 40 years after the release of Stairway to Heaven, English rock band Led Zeppelin are facing allegations that its iconic guitar riff was stolen from Taurus, a song released in 1968 by the American rock band Spirit.

The two riffs are clearly similar: they share a four-bar instrumental guitar passage with similar harmony, tempo and stylistic features. Businessweek has created a short game where you can test your skill at telling the two apart.

But is this enough for Spirit to demand a share of the credit – and the royalties?

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