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«Principal Editor Professor Brian Fitzgerald Head of School of Law, Queensland University of Technology, Australia With the assistance of Jessica ...»

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This is then linked to the work that you wish to give or licence out through the commons. Creativecommons.org reports there have been over 53 million ‘link-backs’ to Creative Commons licences (including over 20 000 to the Australian licence) in ways that has further promoted creativity, innovation and education.188 Like the free software movement, Creative Commons uses intellectual property rights as the platform on which to structure downstream user rights. By claiming copyright in the content that will go into the commons the owner can determine how that content can be used downstream e.g. to further develop the commons. However, unlike copyleft free software licences, Creative Commons does not require utilisation of material in the commons to carry with it an obligation to share further innovations back to the commons – this is only one of the four conditions, known as ‘share and share alike’, the copyright owner might employ. 189 Creative Commons cannot solve all of the legal issues associated with digital sampling and culture jamming. However, what it will enable is the ‘building of active and distributed repositories of copyright content that can be utilised by creatives to build the next layer of creativity.’ 190 It is through the building of these repositories that Creative Commons will enable music samplers to sample and culture jammers to jam freely, without the fear of litigation.

In relation to music CC has developed three different types of sampling licences (which are yet to be ported or translated into an Australian

licence):

1. The Sampling Licence - This licence allows users to use part of the licensed material for any purpose other than advertising, but does not allow users to perform, display or distribute copies of the whole of the licensed material for any purpose.

For example see http://www.onlineopinion.com.au http://www.vibewire.net.au http://creativecommons.org.au See generally Anne Fitzgerald and Brian Fitzgerald, Intellectual Property in Principle (2004) Thomson Sydney 455.

Brian Fitzgerald and Ian Oi, ‘Free Culture: Cultivating the Creative Commons’ (2004) 9(2) Media and Arts Law Review 137 at 140; Brian Fitzgerald, ‘Creative Choices: Changes to the Creative Commons’ (2005) 114 Media International Australia 83.

2. The Sampling Plus Licence - This licence allows users to use part of the licensed material for any purpose other than advertising. It also allows users to perform, display and distribute copies of the whole of the licensed material for non-commercial purposes.

3. The Noncommercial Sampling Plus Licence - This licence allows users to use the whole or a part of the licensed material for noncommercial purposes 191 In November 2004 Wired Magazine released a CD containing a collection of 16 songs all distributed under the Creative Commons sampling licenses – thirteen under the sampling plus license and three under the non commercial sampling plus license. The CD jacket encouraged readers to ‘rip, mix, burn and swap till you drop’,192 activities which would otherwise have been prevented under the ‘all rights reserved’ copyright regime normally associated with the distribution of CDs. The release of the Wired CD symbolised more than just the free sharing of music, with 16 high profile artists recognising by ‘doing’ that sharing digital culture can be an advantage and not a threat. 193 It must be noted that in Australia musicians that are members of certain collecting societies will not have the ability to utilise CC licences without the permission of the relevant collecting society. The Australian Performing Right Association 194 (APRA) takes an assignment of the rights of public performance and communication to the public, which subsist in musical works and lyrics. 195 The Australasian Mechanical Copyright Owners’ Society (AMCOS) takes an exclusive licence over mechanical rights in relation to music and lyrics, including the right to make recordings. 196 The rights granted to both APRA and AMCOS cover all present and future music and lyrics owned by the member. 197 Accordingly, a member of APRA is generally not the owner of the right of public performance or communication to the public in his or her music and lyrics, creativecommons.org Thomas Goetz, Sample the Future (2004) Wired Magazine http://www.wired.com/wired/archive/12.11/sample.html at 15 April 2005.

Ibid.

http://www.apra.com.au Australasian Performing Rights Association, Constitution, cl 17 http://www.apra.com.au/corporate/downloads/APRA%20Constitution%2005.pdf AMCOS Membership Agreement, cl 2 http://www.apra.com.au/writers/downloads/input_agreementapplicationformindividual5Nov2004.pdf APRA Constitution, cl 17(a); AMCOS Membership Agreemeent, cl 1.1.1.

and is thus unable to negotiate rights under a Creative Commons licences, without APRA’s permission. Likewise, a member of AMCOS is unable to give a license over the mechanical rights in his or her music and lyrics without the permission of AMCOS. 198 Both APRA and AMCOS provide methods for musicians to opt-out of collection of royalties in one or more of a limited number of categories, or to have the rights in a particular work licensed back to them for a particular purpose. ‘Opt-out’ means that the collecting society will re-assign a subset of the public performance, communication or mechanical rights for every work owned by the member, and will cease collecting from the relevant streams.199 It is not possible to opt-out for a smaller number of works, and a minimum of 3 months notice is required for a re-assignment. ‘Licence-back’ means the creator is granted a non-exclusive license to a particular work for a particular performance or set of performances, or for a particular recording or other purpose. 200 Because the licence granted is limited in duration and scope, it is not sufficient for use with Creative Commons licences. A similar situation exists in some parts of Europe yet there is much more flexibility under the collection mechanisms established in the US.





More work needs to be done on developing a flexible mechanism for allowing musicians to negotiate rights under CC licences while still maintaining a workable model for the relevant collecting societies. This is a complex issue and CC will need to adequately address criticisms such as the interests of the musician are best met through an organised collecting mechanism, CC may not be in anybody’s best interests and the existing system does not distinguish between commercial and non commercial performances. 201 Much of this criticism is a legacy of entrenched business models and consequently denies, as if it were a disruptive technology, 202 the potential of free culture.

In summary if you are a member of APRA or AMCOS the dynamic CC infrastructure is not available to you unless those organisations allow you to use it. Your American counterparts are not limited in this manner and Members of AMCOS are generally music publishers, but Individuals can apply for AMCOS membership if they do not have a publisher.

APRA Constitution, cl 17(c); AMCOS Membership Agreement, cl 2.6.

APRA Constitution, cl 17(g); AMCOS Membership Agreement, cl 2.6.6.

Emma Pike, “What you need to know about Creative Commons” M (15 March 2005) www.bmr.org/html/news/news53.htm; S Faulder, “What Creative Commons Really Means for Writers” (2005) Music Week www.cisac.org See further: Clayton Christensen, The Innovators Dilemma (1997) Harvard Business School Press, Boston MA many would see this as a distinct yet odd advantage in a free trade world where Australia and the US have sought to build an harmonious intellectual property law. If you are not an APRA or AMCOS member your music can be shared at your choice in the creative commons.

Fair Use Reform On the 18 February 2005 the Commonwealth Attorney-General, Phillip Ruddock announced a review of copyright law to examine whether a fair use exception should be added to the Copyright Act. 203 In a speech outlining the Australian Government’s copyright agenda for the next year, the Attorney-General acknowledged that some user groups expressed support for the introduction of ‘an open ended exception to copyright similar to the fair use provision in the United States.’ 204 In response to the changing nature of copyright, the Attorney-General said that ‘a fair use provision may give the Copyright Act more flexibility to maintain the copyright balance in a digital environment.’ 205 There is no doubt that reform to this aspect of the Copyright Act is long overdue, and that the introduction of a fair use provision similar to that contained in United States law will go a long way towards solving the legal issues created by digital sampling and culture jamming. 206 The current fair dealing provisions in the Copyright Act are no longer capable of providing genuine fair dealing of content in the digital environment. 207 This is largely due to the fact that the current provisions are limited to a narrow range of activities which do not reflect the potential of the digital environment. 208 Attorney-General Phillip Ruddock, ‘Copyright: New Futures, New Agendas’ (Speech delivered at the Australian Centre for Intellectual Property and Agriculture Conference, Brisbane, 18 February 2005).

http://www.ag.gov.au/agd/WWW/MinisterRuddockHome.nsf/Page/speeches Ibid. at [38]

Ibid. at [39]; see further Brian Fitzgerald, ‘Underlying Rationales of Fair Use:

Simplifying the Copyright Act’ (1998) 2 Southern Cross University Law Review 153, 157.

See further, B Fitzgerald “Fair Use for “Creative Innovation”: A Principle We Must Embrace. A Submission in Response to the A-G’s Issues Paper on Fair Use and Other Copyright Exceptions” (2005) http://www.law.qut.edu.au/about/staff/lsstaff/fitzgerald.jsp Copyright Act 1968 (Cth) ss 40-43, 103A, 103B, 103C, 104.

See also Ashdown v Telegraph Group Ltd [2001] Ch 685 at 697-8 affirmed on appeal [2002] Ch. 149 at 171.

What is required is the introduction of a single open-ended fair use defence which is sufficiently flexible to adapt to new uses that emerge with technological developments, but also certain enough to provide guidance to copyright owners and users. 209 The harsh reality of the current Copyright Act is that even inconspicuous acts such as transferring music files to an iPod or making a back up copy of a CD are most likely an infringement of copyright. 210 These two common place activities while graphic demonstrations of the dire need for reform are merely the tip of the iceberg.

In implementing any doctrine of fair use the parliament needs to be mindful that fair use will not be thwarted by moral rights. 211 In a digital remix world the moral rights of attribution and integrity provide significant challenges to innovation and need to be carefully implemented. As some American scholars suggest moral rights are a transaction cost in the negotiation of culture and have the potential to stifle free speech in the spirit of censorship. 212 While acknowledging the value of moral rights we must guard against this potential in the remix world lest nothing will ever be remixed or transformed in a process of social comment and/or creativity.

Conclusion

As this article highlights the legality of the digital sampling of music needs

to be clarified in order to sponsor creative and social innovation 213 by:

• clearly articulating how the notion of ‘substantial part’ will apply to music sampling. What amounts to a substantial part is yet to be clearly settled by the Australian courts and until this occurs this area of activity will be chilled by a lack of certainty and fear of being sued. If we are serious about creative innovation as an economic and cultural driver then we need to provide clear legislative or judicial guidance on Attorney-General’s Department, ‘Fair Use and Other Copyright Exceptions’, Issues Paper, May 2005, 33; Copyright Law Review Committee, Simplification of the Copyright Act 1968 (Cth) Report: Part 1 (1998) www.clrc.gov.au Ruddock, supra at [40] The the scope of “reasonableness” under s 195 AS will be important to this question: K Giles, “Mind the Gap: Parody and Moral Rights” (2005) 18 AIPLB 69 Consider W Fisher, “Property and Contract on the Internet” (1999) 73 Chicago-Kent Law Review 1203 On creative and social innovation see: L Lessig, Free Culture (2004); John Howkins, The Creative Economy: how people make money from ideas, (2001); John Hartley (ed.), Creative Industries (2005); DCITA, Creative Industries Cluster Study Volumes 1-3 (2004) ww.dcita.gov.au ; Ruddcok supra at [8].

what is allowed. A legislative solution could articulate the boundaries of sampling without permission of the copyright owner shading into a scheme where permission and compensation might be needed.

• promoting the use of permission in advance mechanisms like Creative Commons licences where appropriate and encouraging collecting societies to support these initiatives

• the introduction of a broad based fair use doctrine sponsoring parody and transformative use that does not fundamentally detract from the market of the original material. Sampling for purely private purposes should also be covered however a broad based exception for non commercial sampling would not be acceptable to many copyright owners or collecting societies as the sample could too easily be communicated to or caused to be heard by the public thereby damaging the market for the original material.

• the availability of responsive and flexible commercial licensing mechanisms, whether statutory or otherwise, for sampling that will not be covered by the suggestions above In relation to culture jamming we need to clearly articulate what copyright and trademark law will allow. A fair use provision that covered both would be welcomed. Section 122 of the Trade Marks Act 1995 should be amended to provide an exception for defined areas of activity such as culture jamming. This should be mirrored in the Copyright Act. 214 The very heart of intellectual property law is about seeking a workable balance between the interests of many players in society – creators, owners, commercialising agents, performers, users, social commentators and the community to name a few. To this end Australian intellectual property law should allow some degree of sampling and culture jamming for no cost and without anyone’s permission as this type of activity is the raw material of creative and social innovation. The time to address these issues seems to be well and truly upon us.



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