Copyright gone mad

The original decision in the copyright vultures vs Men At Work case was a clear demonstration of just how broken copyright law has become.

And now they’ve lost the appeal.

gumtree
Imagine a sad downward flute glissando here.

As Emmett J said, effectively forced by Parliament to find for the parasites:

100. If, as I have concluded, the relevant versions of Down Under involve an infringement of copyright, many years after the death of Ms Sinclair, and enforceable at the behest of an assignee, then some of the underlying concepts of modern copyright may require rethinking. While there are good policy reasons for encouraging the intellectual and artistic effort that produces literary, artistic and musical works, by rewarding the author or composer with some form of monopoly in relation to his or her work (see Ice TV at [24]), it may be that the extent of that monopoly, both in terms of time and extent of restriction, ought not necessarily be the same for every work. For example, it is arguably anomalous that the extent of the monopoly granted in respect of inventions under the Patents Act 1990 (Cth), being a limited period following disclosure, is significantly less than the monopoly granted in respect of artistic, literary or musical works, being a fixed period following the death of the author or composer, irrespective of the age of the author or composer at the time of publication.

101. Of course, the significance of the anomalous operation of the Copyright Act can be addressed in terms of the remedies and relief granted in respect of infringement. Nevertheless, one may wonder whether the framers of the Statute of Anne and its descendants would have regarded the taking of the melody of Kookaburra in the Impugned Recordings as infringement, rather than as a fair use that did not in any way detract from the benefit given to Ms Sinclair for her intellectual effort in producing Kookaburra.

My question is this: if enough outrage can’t be mustered to demand reform of this absurd law – terms that last ludicrous lengths of time; a system where a musical reference, an homage, is “infringement” rather than “fair use” – when it’s an absolute Australian rock classic that’s being attacked, when will it happen? Can the copyright parasites just get away with anything, now? What will our politicians give them next?

ELSEWHERE: Crikey on the copyright industry’s bullshit claims of inflated losses.

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16 responses to “Copyright gone mad

  1. Splatterbottom

    Copyright extortionists have come up with some crazed demands. They should be jailed for racketeering.

    At least Amazon appears to be resisting this outrageous demand.

  2. returnedman

    “Flute glissando”?!? How can a keyed instrument do a glissando? Mmm … I guess you could it without portamento but I imagine it’s still damned hard on a flute …

  3. It’s alright, in your imagination you can have a really proficient flautist do it.

  4. Which Australian political party does have a sane copyright policy ? How could they implement it when Australia is a signatory of (amongst others) the Berne Convention ?

  5. drsmithy, the Berne Convention doesn’t demand century-long-plus monopolies, nor does it declare homages or “covers” to be infringements.

    But nor did it demand that Tolkien lose the rights to Lord of the Rings.

  6. drsmithy, the Berne Convention doesn’t demand century-long-plus monopolies, nor does it declare homages or “covers” to be infringements.

    The Berne Convention requires works be copyrighted for at least fifty years after the author’s death. So if, say, Justin Bieber lives to be 90 (probably a pessimistic estimate, if anything), his current “works” will have been protected by copyright for *at least* 120+ years. The practical result of the Berne Convention is, most assuredly, “century-long-plus monopolies”.

    I sincerely doubt it would allow an unauthorised “cover” of a song, either.

    Copyright[0] lasting past the author’s death is wrong. Copyright being an automatic (rather than “opt in”) system is wrong. Both of these are parts of the Berne Convention.

    [0] By which I mean the economic aspect of Copyright. The moral aspect (ie: proper acknowledgement of creators) is a whole other kettle of fish and should be handled by a completely separate set of laws, IMHO.

  7. The Greens are the closest, DrSmithy, but their copyright policy is not clear enough and in the past they’ve supported restrictions on parallel importing on behalf of local Australian artists.

    But they’re the least sold-out to the copyright industry.

  8. narcoticmusing

    So if, say, Justin Bieber lives to be 90 (probably a pessimistic estimate, if anything), his current “works” will have been protected by copyright for *at least* 120+ years

    We can only live with in hope that no one would ever want to reproduce his “works”.

  9. drsmithy – I sincerely doubt it would allow an unauthorised “cover” of a song, either.

    Then can I respectfully suggest boning up on its “fair practice” clauses, and limitations on exclusivity, and applicable court decisions, and explain the dearth of civil actions against cover bands (who, by definition, credit the work).

    And next time you want to invoke century-long anything, don’t base it on a boiler-plate tween who might be a serial-rehabbed burnout by the time I finish this sentence. That’s just irresponsible.

    Copyright being an automatic (rather than “opt in”) system is wrong.

    “Opt-in” requirements are how Tolkien had Lord of the Rings taken off him.
    It’s also how most music artists have their songs taken off them.
    It’s how music labels’ battalions of lawyers pounce on anything they think they can claim.
    Is that what you want?

  10. Then can I respectfully suggest boning up on its “fair practice” clauses, and limitations on exclusivity, and applicable court decisions, and explain the dearth of civil actions against cover bands (who, by definition, credit the work).

    “By definition ?” How do you figure that ? How do you think someone who doesn’t know the song being covered will be aware that it’s some other artist’s work ?

    I’m sure pub bands can get away with doing covers without much attention. I’m skeptical big name acts can and I’m sure that any record company distributing a cover of a particular song without having the copyright holder’s permission would be in trouble.

    And next time you want to invoke century-long anything, don’t base it on a boiler-plate tween who might be a serial-rehabbed burnout by the time I finish this sentence. That’s just irresponsible.

    *sigh*
    Substitute in J.K Rowling if it makes you feel better. The principle remains unchanged – the Berne Convention unquestionably facilitates “century-long-plus monopolies”, and on average probably requires them.

    “Opt-in” requirements are how Tolkien had Lord of the Rings taken off him.

    No, the lack of harmonised copyright laws caused that. If registering the work in one place automatically registered it everywhere, then that wouldn’t have happened.

    It’s also how most music artists have their songs taken off them.

    No, that happens when artists are strongarmed into signing one-sided contracts. The fact their works are automatically protected by copyright is utterly irrelevant, as would any other system.

    It’s how music labels’ battalions of lawyers pounce on anything they think they can claim.

    No, that would be because of the ridiculously overreaching protections of copyright law.

  11. narcoticmusing

    The entire situation is shameful because copyright and patent law were never put in place to hamper creative pursuit. Yes, they were intended to enable people to get credit (and thus the profits with that) but that doesn’t work because contract law has supremacy over it (ie the ‘artist’ doesn’t get to keep the credit, the producer does) which then makes a mockery of the entire purpose.

    Current copyright law has little to do with protecting the artist and more to do with profit than anything else. Which is why such a punitive, exemplary damages are considered a reasonable outcome in copyright cases rather than simply attributing damages for loss. It is very hard to see how the copyright holder of the kookaburra song suffered ANY loss for this usage, if anything it promoted her tune. There are similar arguments around the p2p downloading situation (e.g. a downloaded song/film does not equate to a lost sale, no matter what the MPAA assert).

    And again, the mockery in that she isn’t the one seeking or gaining the ‘credit’, some 3rd party with no part in creating the work is.

  12. Splatterbottom

    We have the ridiculous situation where companies buy patents which they don’t need, but are useful in cross-licensing arrangements. Google is about to pay $900m for patents, mainly for this purpose. This adds nothing to creativity but keeps new entrants out of the market if they don’t have patents to trade.

  13. With respect DrSmithy, if you didn’t like my suggestion that you bone up on the thing that you were writing about (as opposed to simply expressing certainty and/or sincerity about it), or if you thought it would take too long, you could have just said so. I would’ve understood.

    Current copyright law has little to do with protecting the artist and more to do with profit than anything else. Which is why such a punitive, exemplary damages are considered a reasonable outcome in copyright cases rather than simply attributing damages for loss. It is very hard to see how the copyright holder of the kookaburra song suffered ANY loss for this usage, if anything it promoted her tune. There are similar arguments around the p2p downloading situation (e.g. a downloaded song/film does not equate to a lost sale, no matter what the MPAA assert).

    Not far from the mark… but don’t be distracted by the amounts that they file for.
    IP actions are, in practice, rarely filed to get money. Otherwise, we’d never have such spectacles as Sony (I think it was) suing a 12yo boy and a 90yo woman (the P2P matter you referred to – Napster from memory). Especially considering that no lawyer will fancy fighting for your IP rights without a significant advance on the fee (don’t be surprised if he/she asks $70,000).
    So the case (if it were directly about losses) would have to be both lucrative and unloseable.

    Simply put, the actions are about using force. Scare the bejesus out of soft targets with staggeringly ruinous claims, to put off people who might have ideas about downloading a song.
    Sometimes the parties are both Goliaths (the Kookaburra/Land Down Under matter) – though these typically get sorted on the courts front steps an hour before the mention time. So I suspect that these are just a compulsion deriving from the former.

    And a symptom of the one incontrovertible cause – the content is no longer excludeable. The business model (vertical integration/gatekeeper) has not changed, but the content can no longer be sealed this way – only the services.
    They can only exclude public availabilities (eg. concerts), but as the saying goes…

    …”How do you get a man to understand something if his salary depends on his not understanding it”

  14. With respect DrSmithy, if you didn’t like my suggestion that you bone up on the thing that you were writing about (as opposed to simply expressing certainty and/or sincerity about it), or if you thought it would take too long, you could have just said so. I would’ve understood.

    You know, if you were a little bit more specific about what you disagree with, this discussion could be a lot more productive.

  15. Pingback: More for the copyright parasites | An Onymous Lefty

  16. Pingback: Greg Ham’s death should be a reminder that we need to reform the broken parts of the Copyright Act | An Onymous Lefty

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