Aigrain, P 2005 “Positive Intellectual Rights and Information Exchanges” in R A Ghosh (ed), CODE: collaborative ownership and the digital economy, pp 287-315. Cambridge, Mass: MIT Press at page 289.
For many who create, these are fighting words.
Undoubtedly, by empowering the user to create the new digital environment has placed the subject of the ambit of copyright protection squarely in the spotlight. Governments around the globe are grappling with finding the right balance between copyright protection and encouraging innovation that builds on previous works. In this country, the Australian Reform Law Commission is currently finalising its review, entitled Copyright and the Digital Economy, into the effectiveness and reform of Australia’s copyright laws in the Internet age. The ALRC released its discussion paper in June 2013 after receiving more than 300 submissions, including from Google and eBay to its issues paper and the same number of submissions again to its discussion paper.
The Australian review follows on the heels of similar reviews held in the United Kingdom, with the main findings summarised in the Hargreaves Report released in 2011, Ireland in 2012 and Canada. In April 2013, the US Government announced it was also reviewing US copyright laws in this press release.
The return of the “remix culture” could drive extraordinary economic growth, if encouraged and properly balanced. It could return our culture to a practice that has marked every culture in human history—save a few in the developed world for much of the 20th century – where many create as well as consume.
Or if you prefer the visual, you can see Professor Lessig’s TED talk on this topic here.
the use does not a have a substantial adverse effect, financial or otherwise on the actual or potential exploitation of the existing work or on an existing or potential market for it, including that the new work is not a substitute for the existing one.
At this stage, the ALRC is not recommending that Australia follow the Canadian example believing that determining the issue of whether a work is created solely for non-commercial purposes is problematic. That issue, the ALRC argues is made more difficult by the interaction of UGC and social media platforms where the creator of the UGC may not use the work for commercial purposes, but the platform operator may.
The way forward must balance the needs of new creators with the old and should focus on the concept of harm to the original copyright holder.
what has come earlier. Transformative works make a beneficial contribution to modern culture and should be permitted particularly when they cause no harm to the incentives to creation for the original copyright holder.
Whilst no direct empirical study exists on the economic consequences of transformative works on the rights of the original, some indicative principles can be drawn from a recent study undertaken in the context of the proposed introduction of a parody fair dealing exemption in the United Kingdom. The study reviewed a sample of more than eight thousand YouTube musical videos which were stated to be parody and viewer behaviour in response to those videos. The study found that the activities of the parody creators had little or no direct impact on the audiences of the original creators and if any impact was observed it was positive in that it appeared to be more advantageous for a commercial video to be parodied than not parodied at all. The addition of creative labour to the original made the work potentially transformative and diminished the possibility of confusion in the minds of viewers between the parody and the original. The study went further to note that even if the parody is produced for commercial purposes, it may well increase demand for the original or be sold in a different market. Contrary to popular belief, there is not necessarily any direct relationship between profitability to the copyright owner and the matter of exploitation by others.
We are at a point in history where we have an opportunity to recalibrate our thinking on copyright. Permitting the use of copyright material where no harm is caused to the original copyright holder strikes the right balance between the present and the future and avoids our children being unnecessarily labelled as copyright criminals.
And keeps things like the Hope poster coming.