Copyright Wars

With the Productivity Commission purporting to be undertaking an “evidence-based”[1] review of intellectual property arrangements with a heavy focus on copyright, Rebecca Tushnet has a timely review of Peter Baldwin’s The Copyright Wars: Three Centuries of Trans-Atlantic Battle.

For my part, I thought the French and other “romantics” invented moral rights before the Fascists (but I guess we’ll have to read the book to see how that is supported).

When the book was published, the Economist starkly illustrated the tension between the “two” systems and Prof. Johns took a more cautionary view.


  1. For “evidenced based” policy analysis, see Nicola Searle’s review of another interesting book: Paul Cairney’s The Politics of Evidence-Based Policy Making.  ?

The Corbys have copyrights

Various members of Schapelle Corby‘s family, like most other people who take photographs, do own copyright in the photographs they have taken and Allen & Unwin, which published 5 of their photographs in The Sins of the Father, has to pay damages for the unauthorised use of those copyrights.

Buchanan J awarded:

  • between $500 and $5,000 compensatory damages pursuant to s 115(2) for each photograph; and
  • $45,000 by way of additional damages pursuant to s 115(4) for the deliberate and studied disregard of the applicants’ copyrights.

Allen & Unwin has also been ordered to remove the photographs from its existing stocks and not to reproduce them again.

The evidence disclosed that some 44,000 copies of the book had been sold up to March 2013, from several print runs, including print runs after the proceeding commenced. The larger amounts reflected his Honour’s perception of greater commercial significance largely indicated by the accompanying text in the book. The $5,000 award was for the last photograph of Ms Corby with her father in Australia and, in addition to being used in the book, was reproduced on the back cover with relevant text.

Given the (reported) content of the book, it might seem surprising that the main defence was licence. The photographs had been given to Fairfax, not Allen & Unwin, for publication in relation to one or another newspaper article. Buchanan J found at [85]:

whatever photographs had been given by any member of the Corby family to media organisations for some other purpose, photographs had never been given by any member of the family to the respondent to reproduce. [The respondent’s publisher] accepted that no member of the Corby family had granted permission to the respondent to reproduce the photographs. It is clear that the respondent had never sought any such permission.

There was no attempt to justify any publication through a fair dealing defence but, on the other hand, Buchanan J expressly rejected any insult to the Corby family as relevant to the calculation of additional damages:

120   In the present case, I do not regard as relevant to the assessment of additional damages any criticism of the Corby family, its individual members and its associates (actual or presumed) which is to be found in the book. Those damages will not be fixed to address any perceived insult to the Corby family or any of its members but will be fixed having regard to the seriousness, amongst other things, of the studied disregard of the regime of copyright protection established by the Copyright Act. In my view, the present case suggests a need to deter the respondent and others from conduct of a similar kind.

Contrast von Doussa J’s approach to personal and cultural harm in the Milpurrurru case from [146]ff.

The decision is also our third (?) moral rights case: the authors’ moral rights of attribution being infringed. Buchanan J, however, did not award damages for this having regard to s 195AZGG(3), the unlikelihood that any of the author’s would want to have been identified as participating in the production of the book and the damages awarded for copyright infringement.

Corby v Allen & Unwin Pty Limited [2013] FCA 370

The defamation action arising from the book’s publication is still making its way through the NSW courts.

That Obama poster

Hyperlinking off the reference to the new President, you’ve no doubt heard about the copyright infringement allegations Shepard Fairey‘s Obama poster apparently based on an Associated Press photograph has generated.

Nic Suzor thinks this is unfair and shows why we need a broadly based “fair use” defence or a transformative use defence.

Now, this is a very important problem and I personally don’t have a problem with a broadly based “fair use” defence, but I wonder where Nic’s idea fits in in a world where authors have moral rights – which just happens to be the world Australians live in?

Now, I guess if you were more or less leftish (bit hard to know where on the spectrum Democrats in the US might fall anywhere outside the USA), you might well think favourably of both the poster and the photographer – who doesn’t seem to get acknowledged in the poster, but I may be wrong about that.

What would happen, however, if the photographer was strongly left leaning in principles or smitten with the President and the transformer used the photograph to make some sort of criticism of the President by putting him in that Bansky or the Rudd “homage“.

At the moment, the photographer might well be outraged and concerned that fellow Obama-ites might think less, very much less of him/her.

That seems like the very sort of thing that moral rights might well be designed to protect the author against.  Shostakovich famously successfully stopped the use of his music in some paen to Nazidom, at least in part because of the damage it would do to his reputation in his USSR homeland. And that is even without the droit de divulgation and the right to withdraw a work from publication.

Which policy would win out?  Which should win? The “reasonableness” defence (here and here) might be open, but how does one apply it in this context?