Novelist on Australia’s Proposal to Adopt Fair Use Exception: Have the Decency to Call It Theft

From Australia, which is considering a major change to copyright law, comes an eloquent defense of keeping intact a system that enables authors to get paid when schools and the Australian government uses other organizations use their work. Author Linda Jaivin saves her harshest criticism, however, for the proposed addition of a fair use exception to Australia’s copyright law.*

Jaivin, who writes novels and nonfiction books focusing on China, details what a proposed repeal of statutory licenses would  mean for her and other authors.

“As a member of the rights management organisation Copyright Agency for many  years, I have received payments ranging from a few dollars to nearly one thousand. Among those bodies who have copied my work are universities and the  Attorney-General’s Department. The Australian Law Reform Commission’s proposed  repeal of statutory licences, which provide this secondary income, will rob me of an important source of revenue…”

Jaivin then gets to the fair use proposal:

“[A]nd the proposed new ”fair use” exception, that would allow even businesses to use copyrighted content without permission,  would mean  a business could steal the product of years of work, profit from it  and still have the gall to call this ”fair.”

If you are going to do this, please at least have the decency to call it by  its correct name: ”theft.'”

To allow others to steal and/or profit from intellectual property that we  have created is no different than saying it would be OK  to smash your way into  a designer’s atelier and grab whatever outfits you fancy.

The Commission’s proposal would replace statutory licenses for certain uses, including educational uses, with a system of “voluntary licensing arrangements” worked out by individual content owners (for more on how this would work, see this explanation from Australia’s Copyright Agency). Proponents say a more flexible system is better suited to the digital age. As Jaivin sees it:

“(The new system) will confront writers with the burden of tracking down copyright  breaches and of finding the means to prosecute them under law. Few of us have  the time, legal expertise or financial wherewithal to do so, so this effectively  disempowers us even to pursue what legal rights we would have left.

The ALRC would put the onus of proof of the crime on the victim, which cannot  be a good principle of law in any of its aspects.”

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*Fair use is a defense to copyright developed by American courts to reconcile copyright protection with free expression. It’s rather vaguely defined and its application varies greatly from case-to-case. Many other countries, including Australia, recognize a similar but much more carefully enumerated exception to copyright known as fair dealing.