We are grateful to Dr. Kylie Pappalardo of the Queensland University of Technology in Brisbane, Australia, for contributing the following guest post, which highlights the results of her recent work with Patricia Aufderheide, Jessica Stevens, and Nicolas Suzor on copyright and creative incentives in Australia.
Australian creators struggle to understand copyright law and how to manage it for their own projects. A new study has found that copyright law can act as a deterrent to new creation for many Australians, rather than an incentive for it.
Interviews with 29 Australian creators, including documentary filmmakers, writers, musicians and visual artists, sought to understand how creators reuse existing content to create new works. The study considered issues such as whether permission had been sought to reuse copyrighted content; the amount of time and cost involved in obtaining such permissions; and a creator’s recourse if permission was either denied or too expensive to obtain.
Confusion about copyright exceptions
The study highlights creators’ confusion about the scope and application of Australian copyright law. Creators were especially confused about legal exceptions to copyright infringement. Once participant remarked: “Everybody is out there flying a bit blind about this.”
Australian creators seeking to reuse existing content are in a different legal position to U.S. creators, because Australia does not have a fair use exception. Instead, Australia has limited “fair dealing” exceptions, which require the use to fit within a specific purpose—criticism and review; research or study; parody or satire; or reporting the news. Any uses that fall outside one of the designated purposes, such as lengthy quotes or remixes that are not parodies or critiques, require permission from the copyright owner.
In recent years, the Australian Law Reform Commission and the Australian Productivity Commission have recommended that Australia adopt a U.S.-style fair use exception. These recommendations attracted significant criticism from much of Australia’s creative sector, who thought that such an exception would be too broad and too uncertain. However, the new study suggests that these criticisms may be largely unfounded.
Australian creators in the study frequently confused fair use and fair dealing, and used the terms interchangeably. Rather than following the strict letter of the law, the creators interviewed used their own strong sense of morality and fairness to guide what reuse they considered to be acceptable. Creators most commonly focused on the creative elements that they added to a work, rather than what they had taken from an existing work. This is a norm that aligns more closely with the factors that courts use in assessing fair use, including whether a use has been transformative, than with the Australian law approaches to fair dealing.
Problems with seeking permission
For the majority interviewed, seeking permission to reuse copyrighted content was a source of great frustration and confusion. The process was variously described as “incredibly stressful,” “terrifying,” and “a total legal nightmare.”
Problems mostly centered on time delays and financial expenses. Creators found that the paperwork required to request permission was often long, complex and not standard across publishers and other rights-holder bodies. Many waited months for a response to a request; some never received one at all. Many reported feeling ignored and disrespected.
License fees were also an issue for the creators interviewed. License fees can be expensive, even for very small samples. Many creators thought that copyright fees demanded for reusing small samples were unfair and stifling.
Responses to copyright roadblocks
Common reactions to the restraints imposed by copyright law included avoiding and abandoning projects. A very small number of creators proceeded with their projects anyway, hoping to “fly under the radar,” but these were the minority. Some creators change projects to try to circumvent copyright restrictions. For example, filmmakers might degrade the sound on their films for scenes where background music might be playing, such as those filmed in a pub or restaurant.
Ideas were filtered out early at the brainstorming stage because they were “too risky” or licensing would be “too expensive.” Some people avoided entire areas of creativity, such as appropriation art, music sampling or documentaries about music or musicians, because it was all just “too hard.”
Lessons from the study
The Australian study suggests that more flexibility in the law might actually help to spur the creation of new Australian work. Australian creators could benefit from broader copyright exceptions that allow them to reuse small amounts of existing works in new creations, and from clarity and consistency around licensing procedures. The study indicates that there is a misalignment between creative norms and copyright law in many cases, and that law reform may be needed to meet the needs of Australia’s creative community.
More detail and specific examples of “imagination foregone” are in the full report: Kylie Pappalardo, Patricia Aufderheide, Jessica Stevens and Nicolas Suzor, Imagination Foregone: A qualitative study of the reuse practices of Australian creators (Nov 17). Funded with support from the Australian Digital Alliance.
Dr. Kylie Pappalardo researches in intellectual property and innovation law, focusing primarily on the intersection between copyright and creativity and the rights of copyright users. She is a Lecturer in the Law School at the Queensland University of Technology (QUT) in Brisbane, Australia, where she leads the research program on copyright law and creative communities.