Transcript: Shaun Miller

Ttranscript of Shaun Miller's presentation at the Rights Online Forum, Arts Law Week 2007, 9 May, Cinema Nova, Melbourne.

I’m only going to speak for about 10 or 15 minutes and just give the broad brush strokes of copyright law and then I’m going to refer you to a couple of web sites at the end of my brief spiel and you can find out more about copyright law through that.

Copyright law is basically, copyright is basically your right to make copies of certain material. And your right if you own copyright to prevent others from making copies. And you can own copyright in a number of things. There’s two main categories. Firstly works, which are artistic works, literary works, dramatic works and musical works. So you can own copyright in those things that you create. OK? I’ll repeat those. Literary, artistic, dramatic or musical works. And you can also own copyright in another category of works, of things, which are very creatively called ‘subject matter other than works’ and those things include cinematographic films, sound recordings and broadcasts and also printed editions. So basically things that you create. I noted that there were several artists and film makers and whatnot in the audience. Those creations that you create are capable of being copyrighted and they’re copyrighted automatically once you as the creator create that work. You don’t have to register your film with a particular registration body. You don’t have to, there’s no registration for copyright in Australia. All you’ve got to do is be the author of the work, create the work and you will automatically, the assumption is that you’re the creator and not employed by somebody, the assumption is that you will automatically own copyright in that work or subject matter other than work. OK?
And there’s only two conditions to that and they are as follows: Firstly, your creation has to be in a material form, so there’s no point going down to the pub with your film idea and shouting out to everybody what your idea is for a film. You actually have to write it down as a treatment or a script and then you will own copyright in that treatment or script, which will be a literary work. And then base your film on that underlying right of the script and when you make your film you will own copyright in your film. And remember if you own copyright in your creation, which you get automatically, then you will be able to make copies, you will have the right to make copies of your creation, and you will be able to prevent others from making copies. So as I said, there’s only two things that need to be done for you to automatically own copyright in your creation. Firstly it’s got to be expressed in a material form. I often like to say that if you can drop it on your foot then it’s in a material form, although with broadcasts that’s not quite the case. But generally speaking, if you can’t drop it on your foot, then you haven’t got it in a material form. And secondly your creation has to be original. Now by original, I don’t mean a cool and groovy idea, although I’m sure all your ideas are cool and groovy. What I mean is that it must not have been copied from anywhere else. Now there’s no copyright in broad brush ideas, as such, or in historical events, as such. But if you decide to, so you can write a, you can make a film on witchcraft for example even though Harry Potter’s been made, but if you make a film which is a blow by blow breakdown into scenes and characters and dialogue of Harry Potter, then clearly your film is not original, it has been copied. So as long as your work has not been copied from somewhere else, bearing in mind it’s OK if it just draws on general ideas from another work, but it doesn’t copy it, substantially copy that work or subject matter other than work, as long as it does that and you can drop it on your foot, it’s in a material form, then you will automatically own copyright in your creation, be it a work, a literary work, a dramatic work, an artistic work or a music work or a subject matter other than work, which is films, sound recordings, broadcasts and printed editions.

I know I’m talking at a rate of knots – what I think I should say at this point, and if you can all prick up your ears, because I’m going to refer you as I said to a web site that has information sheets on it and you can slowly read those information sheets and the knowledge will hopefully seep in about copyright and anyway a lot of you said you were aware of copyright but what I do want to say is that in creating things that you put online, which is what this session is about, and Mark will talk in more detail about this, that there’s a general rule, it doesn’t hold true in every case and it’s a good generality, and that is if you think something is worth stealing then someone will think it’s worth protecting. So if you make a film and you want to put it online and you decide to put in Beatles music then obviously the owner of the Beatles music and sound recording will want to protect it. I’m often asked in classes but what if I only put 10 seconds of Beatles music on or only 5 seconds on. Once the work is recognisable it doesn’t really matter, it goes to the essence of the work. It doesn’t matter how short it is. So if you think 5 seconds of a Beatles song is worth stealing to put into your film then someone, namely the owner of the Beatles copyright on the Beatles music, will think it’s worth protecting. So what I really recommend is that when you make your films to put online, that you clear all the underlying rights in the film, so you don’t make a film based on a short story that you haven’t cleared the rights to. You don’t put music in the film that you haven’t cleared the rights to. You don’t synchronise a sound recording into your film that you haven’t cleared the rights to. I know it sounds like common sense but it’s just amazing how many people think that if they make the film they can sort of take a bit from here and there. There is the whole issue of creative commons, culture jamming and all of that which is beyond the scope of what we’re directly talking about here although it’s going to come up. But as it stands now, unless you, creative commons is more of a sort of a general license to use something that’s within the creative commons regime which is up to the copyright owner. I don’t want to side track on that. So, just to recap, copyright gives you the right to make reproductions including to communicate the work electronically, which is how you communicate works online. And you can have copyright in a work, as I said, or a subject matter other than work, and you get copyright automatically so long as it’s in a material form and you’re able to drop it on your foot.

So they’re the main things.

Once you own copyright in a work or subject matter other than work in Australia, you also automatically own copyright in that work, in other words the right to make copies, in most other countries in the world. There’s this international convention called the Bern Convention which I think about 151 countries are signatories to, which allows reciprocal copyright in each country which is a signatory to the Bern Convention. So countries that you’ll be, you know, like just the UK, United States, Argentina, France, South Korea, all of these countries that are within the world trading system and whatnot, 151 countries are signatories to the Bern Convention. So, online we’re talking international anyway because the world wide web is global and if you own copyright in your film and you upload it in Melbourne and someone starts doing something with that film, lets say downloads it, puts it on a DVD and starts selling it at a market stall or in dvd shops in Canada, then you can stop them from doing that, even though you created your work in Australia.

And I’ll just, I don’t want to, like I said, talk too long on the, but then again, copyright is not such a simple area that it can be reduced to a 10 or 15 minute talk, but I do also want to say that it’s not all the rights fall in favour of the copyright owner. There are fair dealing provisions in the copyright act, so if your, there are 3 main fair dealing provisions, actually now there are 4. The three main ones that are around are: you can use copyright from a work or subject matter other than work if it’s for the purpose of study, that there are limits on that so you can photocopy for example 10% of a book for the purpose of study or one chapter. You can use copyright if it’s for the purpose of criticism or review, so if you’re using other people’s films or tv broadcasts online or literary works online for the purpose of criticism or review then that’s OK. So lets say you were going to review a Howard Arkley exhibition and you put Howard Arkley pictures on your website for the purpose of reviewing that exhibition then that would be OK, because you’re using the copyright in the paintings, because they’re an artistic work so there’s copyright there, for purpose of criticism and review. Now Mark’s actually involved with VisCopy so might have something more to say on that. And the third one, so that’s study, criticism or review, and the third one is for the purpose of reporting news. So if your, society considers it’s a good thing that news is reported and that there’s free flow of information. So if you’re reporting news, let’s say Steve Irwin, when he died you would have seen on all the news channels there were excerpts from the Crocodile Hunter. Now the news channels wouldn’t have had to license those excerpts from the Crocodile Hunter. They were using the footage from the Crocodile Hunter as part of their news stories that Steve Irwin had died. And there’s a fourth fair dealing exception, although Mark is that actually a fair dealing exception, parody and satire?

Mark: Well yeah

It is under the fair dealing provision. Parody and Satire’s always been around, been allowed under the copyright, not really under the copyright per say but really just under common law as precedent courts had accept parody as being a good thing, it’s good that people laugh I guess, but it’s always good if you parody, if you take someone’s copyright and you use it for the purpose of parody that the judge has a good sense of humour. So sometimes judges maybe if they’re conservative and from Queensland won’t have such a good sense of humour so they won’t think it’s parody in the first place. But recent amendments to the copyright act allow specifically for parody and satire to be fair dealing exceptions. So you can put anything online if it’s for the, and jam it or whatever, if it’s for the purpose of parody and satire. Fortunately, if it’s pathos it won’t fit the bill, it’s got to be parody or satire. Go figure.

So they’re the fair dealing exceptions and that’s – I mean – there’s this other area that’s related to copyright – copyrights and economic rights – another area that’s related to it is moral rights which are personal rights that the creator has that can’t be bought or sold. They’re the rights of integrity in the work and the rights of authorship. But again, I’m going to refer you to a web site – I’m probably for some of you just talking at a rate of knots and for others this would all be very familiar, but I’ll refer you to some information sheets and you can read up more about it.
I think that’s the broad brush of copyright law – if you own copyright in your work or subject matter other than works, in other words your literary, artistic, dramatic or musical work or your cinematograph film, sound recording, broadcast or printed edition. By owing copyright, as I said, you have the right to make copies, so you have the right to sell, or assign copyright, in your work or subject matter other than work, in your creation. You also have the right to license it, all the license is is just a fancy lawyer word which means permission. You have the right to grant permission, to grant a license, for other people to use, either exclusively or non-exclusively, your work or subject matter other than work, your creation. When you grant someone permission to use your work which you create, you can limit that permission in terms of the territory. So you might say they only have permission in Australia, or Australia & New Zealand, or you could say they’ve got permission to use your creation around the world or just in certain other territories. So it can be limited in terms of territory. It can be limited in terms of the media, so you could just grant someone, if you’re online artists then you might only want permission to use a certain sound record for the purpose of communicating that work online, electronically online, and you don’t need film festival rights or television rights or dvd rights, just the online rights. But obviously if it’s online it will have to be global because the Internet is global. So you can limit the permission that you get or if you own copyright that you grant, in terms of the territory like I said, in terms of the media and finally in terms of the period of time. So it might be in this fast changing world that you’ll only want to attain a license, permission to use something, for say as little as one year because then it’ll be yesterday’s artistic project and you can move on. Or you might want it for 5 years or 7 years or you might actually want it in perpetuity which means for the full term of the copyright, after which the work goes into the public domain. And once something’s in the public domain anyone can use it.

And actually I’ll conclude on this point: the duration of copyright isn’t forever. When you own copyright in something, if it’s a work, in other words a literary, musical, dramatic or artistic work, you only own copyright in it for 70 years after they die. Now obviously that’s a very long time – it gets inherited, willed in the estate and goes to your family or next of kin or whoever you decide to have in your will to get your copyright. So copyright doesn’t last forever but it lasts a hell of a long time in the case of works. That’s 70 years after someone dies, so even if J K Rawlins dies tomorrow, her estate would own copyright in her books until the year 2077. So I don’t think many of us will be around then.
And copyright in relation to subject matter other than works, films, sound recordings, broadcasts and printed editions lasts for 70 years after they’re created. So a film that’s made today such as Spiderman 3 that came out, copyright in that will last until, well, let me use an Australian film as an example, Noise which came out this week –copyright in that film will subsist until the year 2077 because it was made this year. But in the case of a work, copyright lasts for 70 years after the creator dies. Now the creator may not die for another 50 years and then copyright will last for another 70 years after that. So, it’s a hell of a long time.

I’ll conclude there and we’re going to take questions at the end but the website I want to refer you to is from the Copyright Council of Australia. They’ve got really good information sheets on their website and their web site is simply copyright.org.au – just copyright.org.au.

The Arts Law Centre, which is partly sponsoring this event, has a very good website as well. It’s artslaw.com.au.
So therein ends my little spiel it’s as clear as mud, I must agree.

Comments