«Principal Editor Professor Brian Fitzgerald Head of School of Law, Queensland University of Technology, Australia With the assistance of Jessica ...»
well documented that they exist within a so called legal grey area, and it may only be a matter of time before the law turns its attention to MP3 blogs. Recently the Recording Industry Association of America stated that in terms of piracy MP3 blogs are an issue which they are closely monitoring and that at any time they could decide to make enforcement a priority. 142 The main reason for the survival of MP3 blogs is their relatively low profile, with even the most popular MP3 blogs having only a few thousand regular visitors. 143 This is a far cry from the millions of people who engage in peer to peer file sharing through programs like WinMx or Kazaa. In addition to this most MP3 blogs tend to feature music which is no longer termed as mainstream, and has often been out of the public eye for a long time. 144 However, despite these factors while MP3 blogs continue to feature tracks without the permission of the copyright owner they run the risk that they will infringe copyright law. Under the Copyright Act bloggers will infringe copyright when they do any of the acts within the copyright owner’s exclusive rights. 145 In the context of a sound recording, this will most often occur on MP3 blogs where the host blogger makes a copy of the sound recording or where they communicate the recording to the public by posting it to the blog.
Bill Werde, The Music Blog Boom (2004) Rolling Stone h ttp://www.rollingstone.com/news/story/_/id/6478068?
rnd=1095273257416&pageid=rs.Home&hasplayer=true&pageregion=single1& at 18 April 2005.
Wikipedia, MP3 Blog (2005) http://en.wikipedia.org/wiki/Mp3_blog at 8 April 2005.
Copyright Act 1968 (Cth) ss 36(1), 101(1).
Copyright Act 1968 (Cth) s 85(1)(a), (c). The posting of the sampled work on the Internet might also infringe the copyright owner’s right to allow the recording to “be caused to be heard in public”: s 85 (1) (b).
Copyright Act 1968 (Cth) s 31 (1)(a).
 FCA 972 (Unreported, Tamberlin J, 14 July 2005).
be mindful of authorisation liability for facilitating copyright infringement through hypertext linking.
Assuming an action for copyright infringement can be made out against an MP3 blog, one issue which does arise is whether MP3 blogs fall within the defence of fair dealing under the Copyright Act. In particular, it may be argued that MP3 blogs come within the fair dealing defence of criticism or review. 149 Under this provision a musical or literary work or a sound recording may be fairly dealt with, without infringing copyright for the purposes of criticism or review. 150 There is no definition of criticism or review within the Copyright Act, however, it has been held that the words criticism and review are of ‘wide and indefinite scope which should be interpreted literally.’ 151 In Warner Entertainment Co Ltd v Channel 4 Television Corp PLC 152 Henry LJ stated that the question to be answered in assessing whether a dealing is fair or not is ‘is the [work] incorporating the infringing material a genuine piece of criticism or review, or is it something else, such as an attempt to dress up the infringement of another’s copyright in the guise of criticism’.
The issue which then arises is whether the commentary and review posted on MP3 blogs will be sufficient to constitute criticism and review under ss 41 and 103A of the Copyright Act. Given the differing nature of each MP3 blog it is not possible to provide one complete answer; rather each site will need to be assessed on a case by case basis. However, it is possible to identify a number of key indicators which may suggest whether the fair dealing defence of criticism or review will be applicable in a given case.
The primary determining factor will be the amount of commentary which is featured on the MP3 blog itself. In the case where an MP3 blog contains quite detailed commentary, a court may be inclined to view it as a genuine piece of criticism or review. This is to be distinguished from those sites that do not contain detailed commentary and are likely to be viewed as an infringement of copyright. Another determining factor will be the number of tracks that are available for download on the MP3 blog. Where there are only one or two tracks available, a court may be more willing to allow the criticism or review defence. However, MP3 blogs which contain an entire album or a substantial number of tracks will most likely not be afforded the defence of fair dealing. In summary, it would appear that as a general Copyright Act 1968 (Cth) ss 41, 103A.
Fitzgerald and Fitzgerald, supra, 171.
TCN Channel Nine Pty Ltd v Network Ten Ltd (2001) 50 IPR 335, .
(1993) 28 IPR 459, 468.
guide, where an MP3 blog is prima facie nothing more than an attempt to disguise copyright infringement, the defence of fair dealing will not be allowed. However, if the MP3 blog is a genuine piece of criticism or review, and is on a small scale, then a court may be inclined to allow the fair dealing defence.
What Is Culture Jamming?
Culture jamming is part of a movement; a desire to change how the world currently operates – where individuals are replaced by corporations in a culture of consumerism. The term culture jamming refers to a form of social and political activism, a resistance movement to the hegemony of popular culture which utilises the mass media to criticise and satirise those very institutions that control and dominate the mass media. 153 Culture jammers are revolutionaries, they intend to incite and provoke social and political upheaval, ultimately for change. 154 They are discontent with the control that politicians, corporations and capitalism have taken over the mass media and society in general and wish to free the public from what they see as a propagandised world. Their technique is to take conventional forms of mass communication such as corporate advertising and imitate the visuals, either logos or slogans, subtly altering the intended message to express dissenting opinions. 155 Culture jamming may take a number of different forms and mediums however, it is mainly restricted to the internet, posters, billboards and personal apparel like t-shirts. Some popular
examples of culture jamming include:
• Subvertising – this involves undermining the authority of corporations and politicians that impose capitalism and consumerism, and sabotaging their efforts to control the minds of the public. 156
• Guerrilla communication – this is the intervention in the more conventional processes of communication in order to grab the audience’s attention and express unconventional views.
See generally: Communication Studies University of California, What is Culture Jamming? (2004) Culture Jamming http://www.bol.ucla.edu/~nsajous/ at 12 April 2005; Kalle Lasn, Culture Jam: How to Reverse America’s Suicidal Consumer Binge – and why we must (1999) Eagle Press.
For an example of subvertising see http://www.subvertise.org.
• Google bombing – this involves the manipulation of search engine results to link search keywords with negative or humiliating phrases and websites.
• Billboard liberation – this is a practice used against corporate and political advertising, whereby critical and often cynical messages replace the original message while still remaining visually similar. 157 What Does The Law Allow? 158 It impossible to define all of the legal issues associated with culture jamming, as these will largely depend upon the medium or form in which the culture jamming takes. However, by using ‘billboard liberation’ as an example it is possible to identify a number of legal issues which may arise in similar cases of culture jamming. The first legal issue which may arise in this instance of culture jamming is the potential for the logo or slogan used in ‘billboard liberation’ to infringe copyright. Under the Copyright Act copyright infringement will occur where the culture jammer does any of the acts within the copyright owner’s exclusive rights. 159 Using the example of ‘billboard liberation’ this will most likely occur where the culture jammer either reproduces in a material form or communicates to the public an artistic work. 160 An artistic work is defined to mean a painting, drawing or photograph, whether or not the work is of artistic quality. 161 This definition will therefore incorporate the images and drawings which feature heavily in ‘billboard liberation’. Where there is also accompanying text, this will also infringe copyright in the literary work when it is reproduced in a material form or communicated to the public. 162 The text featuring in ‘billboard liberation’ will be classed as a literary work as it is a particular form of For an example of billboard liberation see http://www.billboardliberation.com.
Culture jamming may also lead to criminal charges or property based actions: see Pat O’Shane v John Fairfax & Sons  NSWSC 140 (Unreported, Smart AJ, 16 March 2004)  referring to a recent example of this in relation to a Berlei bra billboard.
Copyright Act 1968 (Cth) ss 36(1), 101(1).
Copyright Act 1968 (Cth) s 31(b). See Compagnie Generale des Etablissements Michelin “Michelin&Cie” v National Automobile Aeroscope, Transportation and General Workers Union of Canada (CAW-Canada) (T.D.)  2F.C. 306; British Columbia Automobile Assn v Office and Professional Employees International Union Local 378  B.C.J. No. 151.
Copyright Act 1968 (Cth) s 10(1).
Copyright Act 1968 (Cth) s 10(1).
expression through which the ideas or information are conveyed. 163 The scope for a defence of fair dealing based on parody is extremely limited and would most likely be unsuccessful. 164 This form of culture jamming also has the potential to infringe the creator’s moral rights of attribution of authorship, the right not to have authorship falsely attributed and the right of integrity of authorship. 165 Another legal issue which arises in relation to ‘billboard liberation’ is the infringement of registered trade marks. In Australia protection is conveyed upon those trade marks which are registered under the Trade Marks Act 1995 (Cth). Trade marks are defined as ‘a sign used, or intended to be used, to distinguish goods or services dealt with or provided in the course of trade by a person from goods or services so dealt with or provided by any other person’. 166 This definition of a trade mark will therefore convey protection upon any ‘letter, word, name, signature, numeral, device, brand, heading, label, aspect of packaging, shape, colour, sound or scent’ providing it is distinctive. 167 Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479;
Blackie & Sons Ltd v Lothian Book Publishing Co Pty Ltd (1921) 29 CLR 396. Note that copyright will not usually subsist in very short titles, slogans or phrases although the law is inconsistent on this issue: Anne Fitzgerald and Brian Fitzgerald, Intellectual Property in Principle (2004) Thomson Sydney 88-9; Jill McKeough, Andrew Stewart and Philip Griffith Intellectual Property in Australia 3rd ed (2005) LexisNexis Butterworths Sydney, 164-5.
See Compagnie Generale des Etablissements Michelin “Michelin&Cie” v National Automobile Aeroscope, Transportation and General Workers Union of Canada (CAWCanada) (T.D.)  2F.C. 306 holding that “criticism” under the Canadian fair dealing provisions does not include parody; TCN Channel Nine v Network Ten (2001) 50 IPR 335,  FCA 108 at ; AGL Sydney Ltd v Shortland County Council (1989) IPR 99 at 105-6. cf. TCN Channel Nine v Network Ten (2002) 118 FCR 417,  FCAFC 146 at -, ; See generally Ellen Gredley and Spyros Maniatis, ‘Parody: A Fatal Attraction? Part 1: The Nature of Parody and its Treatment in Copyright’ (1997) 7 European Intellectual Property Review 339. On the application of fair use doctrine in these circumstances see Leibovitz v Paramount Pictures 948 F Supp 1214 (SDNY, 1996).
Copyright Act 1968 (Cth) s 189; Ellen Gredley and Spyros Maniatis, ‘Parody: A Fatal Attraction? Part 1: The Nature of Parody and its Treatment in Copyright’ (1997) 7 European Intellectual Property Review 339, 341, 344.
Trade Marks Act 1995 (Cth) s 17.
Trade Marks Act 1995 (Cth) ss 6, 41.