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«BY STEPHANIE HUNT A paper submitted for Honours Thesis ANU College of Law, The Australian National University Acknowledgements: I give many thanks to ...»

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TRANSFORMATIVE USE EXCEPTION

BY STEPHANIE HUNT

A paper submitted for Honours Thesis

ANU College of Law,

The Australian National University

Acknowledgements: I give many thanks to Daniel Stewart for agreeing to

supervise me, to Joanna Longley from the library for helping me do difficult research,

Matthew Rimmer for advising me along the way, Wayne Morgan for allowing me to

prepare for this years earlier by approving my music law inclined chosen essay topics, Jordan Roseman (DJ Earworm) for kindly talking to me about his work, Mark Bryan for doing the same, Judith Preston for her encouragement, my friends for their encouragement and last but not least, my family for their endless support.

5 November 2012 Word length: 13,509   1  

CONTENTS PAGE:

λ INTRODUCTION (PAGE 3)

λ CHAPTER ONE: THE LEGAL DEVELOPMENT AND IMPORTANCE

OF THE CONCEPT: TRANSFORMATIVE USE (PAGE 6)

A. User-Generated Content (‘UGC’) and Its Importance (PAGE 6) λ A. (I) What is UGC? (PAGE 7) λ A. (II) What is Mash-up Music? (PAGE 8) λ B. Why is it Currently Illegal? (PAGE 10) λ C. The Concept of Transformative Use (PAGE 12) λ C. (I) (a) Origins and Development of Transformative Use (PAGE 12) λ C. (I) (b) The Blur and the Err of the Parody Exception (PAGE 14) λ C. (II) Deciding Whether a Work Conveys New Meaning (PAGE 18) λ D. Warning against Allowing ‘Weak’ Transformation (PAGE 22) λ

λ CHAPTER TWO: HOW SHOULD THE COMMERCIAL NATURE OF A

TRANSFORMATIVE WORK AFFECT ITS ABILITY TO BE DEEMED

FAIR DEALING? (PAGE 25) λ A. Difficulty in Defining “Non-Commercial” (PAGE 25) λ B. Does the Transformative Work Diminish the Market Value of the Original? (PAGE 28) λ B. (I) US Jurisprudence and Scholarly Discussion Of Market Value Analysis (PAGE 28) λ B. (II) The Public Benefit of Such Uses Versus The Copyright Owner’s Loss (PAGE 29) λ B. (II) (a) Benefits of Online UGC (PAGE 29) λ B. (II) (b) Benefits of Bringing UGC to Live Audiences (PAGE 31) λ B. (III) General Benefit of Artistic Expression (PAGE 33) λ C. Using Practices to Fill the Current Gaps in Our Copyright Legal System (PAGE 35) λ D. Drawing The Line Between Practices and Infringement (PAGE 40)

λ CHAPTER THREE: AN EXCEPTION ALLOWING TRANSFORMATIVE

USE WOULD NOT UNDERMINE MORAL RIGHTS IN ANY

SIGNIFICANT MANNER (PAGE 43) λ A. Most Transformative Works Unlikely to Infringe Moral Rights (PAGE 43) λ A. (I) Perez v Fernandez (PAGE 45) λ B. Expanding Fair Dealing Defence Would Not Preclude Moral Rights Claims (PAGE 47)

λ PROPOSED DRAFTING FOR THE PROVISION (PAGE 49)

λ CONCLUSION (PAGE 50)   2  

–  –  –

Remix Culture is an artistic phenomenon that has arisen out of an increase in usergenerated content. It is distinguished by its transformative use of popular music.

Remix Culture challenges the principles of copyright law. It embraces two positions, one more radical than the other. The first position argues that everything is a remix because all original material builds on and is influenced by previous material.1 It advocates the abolition of copyright laws. The second view is more nuanced and argues that Remix Culture should be tolerated and accommodated by a change in the current state of copyright laws.2 It supports the expansion of the defences available for copyright infringement. This paper focuses on the latter position, providing an Australian perspective on why and how Remix Culture could be accommodated within the existing copyright framework by an expansion of the fair dealing defence.

This paper proposes the inclusion of the concept of transformative use in the fair dealing defence. This concept recognises the inherently derivative nature of art and is based on the notion of the transformed work being changed, adapted and modified to the extent that it should no longer owe a legal debt to the original work.

Although the Australian fair dealing provisions allow the unauthorised use of copyrighted material for the purposes of research or study, criticism or review, parody or satire, reporting news or professional advice by a lawyer, patent attorney or trade                                                                                                                 1 Ferguson, Kirby. "Everything's A Remix". Everything Is A Remix Part 1, available at 2 Lawrence Lessig, Remix: Making Art and Commerce Thrive in the Hybrid Economy, Penguin Press (2008).

–  –  –

works that are transformative in nature. In light of recent calls to formally adopt the concept as a part of fair dealing, this paper assumes a timely relevance.4 Chapter one clarifies what transformative use could mean in the context of music and Remix Culture. Although the concept of transformative use emerged in the United States (‘US’), Chapter One reveals how it was narrowed and confused to require criticism after Campbell v Acuff-Rose Music Inc,5 a vastly publicised parody case.





The Court held that the parody was sufficiently transformative so as to constitute fair use. Parodies were then mistakenly equated to transformative use in the US, and both terms were understood interchangeably. This interdependence effectively precluded the development of a satisfactory defence to protect transformative works.

Transformative use is still not expressly protected in US or Australian legislation, despite its obvious importance in US jurisprudence. This paper will draw on the US jurisprudence surrounding the concept of transformative use, in order to clarify its meaning and its potential applicability in the Australian fair dealing defence.

In light of the recent calls for the inclusion of non-commercial transformative use within Australia’s fair dealing provisions, Chapter Two scrutinises why such an exception should not be confined to non-commercial use. Defining non-commercial use in a digital environment that monetises social relations, friendships and social                                                                                                                 3 Australian Copyright Council, Fair Dealing: Information Sheet G079v06 (2012), available at www.copyright.org.au/find-an-answer/browse-by-a-z (last visited 4 November 2012); Copyright Act 1968 (Cth) part IV.

4 Transformative use, ALRC, available at http://www.alrc.gov.au/publications/issuespaper/transformative-use (last visited 28 October, 2012) [hereinafter ‘ALRC’]; Copyright Council Expert Group, Directions in Copyright Reform in Australia (2011) [hereinafter ‘Expert Group’].

5 (1994) 510 US 569, 579 [hereinafter ‘Campbell’].

–  –  –

commercial edge may be beneficial to society. As a result, it is not necessary or advisable to confine such an exception to any strict definition of non-commercial use, thereby granting courts the freedom to decide when a transformative work is so commercial that it would only be fair for it to constitute copyright infringement.

Some might argue that an exception for transformative use conflicts with authors’ moral rights. Indeed on face value, Australia’s moral rights laws seem to provide authors with protection against the very act of modification of their work. However, a deeper analysis demonstrates that modification only infringes moral rights where it is prejudicial to the author’s reputation or honour. Chapter Three clarifies why the transformative uses discussed in this paper are unlikely to prejudice an author’s honour or reputation. Further, including transformative use as a purpose for which dealing with copyrighted works might be deemed fair, would not preclude a moral rights claim where transformative use of an artist’s work conflicts with such rights.

This paper aims to act as a catalyst for scholarly participation and legal reform in this area, by introducing a compelling argument for the recognition of transformative uses and by showing cogent justification for legalising Remix Culture.

                                                                                                                6 ALRC, 130; Expert Group, 2.

–  –  –

A. User-Generated Content (‘UGC’) and Its Importance A transformative use exception is well overdue. In light of the rise of UGC and its acceptance in society, an exception for transformative use should apply to legitimise most of these practices, which are seemly unstoppable, even for powerful labels. Such practices are merely the result of evolution. First, the rapid evolution of technology has provided our society with software that encourages the production of UGC. For example, the webcam made it significantly easier for users to make and upload videos without using a device other than their computer. Further, Ableton Live and Garage Band have allowed millions to create and mix music, while Imovie and other video editing programs have allowed amateurs to create ostensibly professional footage.

Second, the rapid evolution of the internet has provided users with platforms on which they can publish their material to share and discuss with the world. Most notably, YouTube allows 800 million unique users to publish and share their content online.7 Further, Sound Cloud, more recently, has given fifteen million users a platform on which they can share their music, whether they are original tracks or secondary works that have been mixed using the widely available software above.8                                                                                                                 7 YouTube Statistics, available at http://www.youtube.com/t/press_statistics (last visited 30 October 2012).

8 Mike Reid, SoundCloud quietly floats past 15 million users; preparation underway for Next SoundCloud redesign, Music News, Industry, Tiny Mix Tapes, statistics released on May 14, 2012 available at http://www.tinymixtapes.com/news/soundcloud-quietly-floats-past-15-million-userspreparation-underway-next-soundcloud-redesign (last visited 30 October 2012).

–  –  –

giving users new and meaningful ways to create and communicate. The issue is that, all too often, their creations and such communication unlawfully use copyrighted material. The existing copyright regime naively turns a blind eye to the rise of UGC and the fact that many of these commonly engaged in practices are, strictly speaking, likely to infringe copyright laws. Allowing transformative use will further strengthen the legal position of UGC, by inverting the presumption, so that most of these practices will become unlikely to constitute copyright infringement. After expressly allowing for transformative use in the fair dealing defence, eventually, when faced with a UGC case, courts will have a better opportunity to more justly balance the copyright holders’ financial interests with everyone else’s creative interests.

A. (I) What is UGC?

UGC possesses a handful of commonly agreed upon characteristics,9 as discussed by the Organisation for Economic Co-operation and Development.10 First, UGC is usually public media and therefore accessible via the internet. Second, the content is somewhat creative. This means users “add their own value to the work.”11 Finally, the content is generally “created outside of professional routines and practices.”12 In this context, the professional nature of the work merely depends on whether the user                                                                                                                 9 Jordan Sundell, Tempting the Sword of Damocles: Reimaging the Copyright/ DMCA Framework in a UGC World, 12 Minn. J.L. Sci. & Tech. 335 (2011), 338 [hereinafter ‘Sundell’].

10 Organisation for Economic Co-operation and Development, Participative Web: User Created Content 8 (Working Party on the Information Economy, Report No. DSTI/IC-CP/IE(2006)7/FINAL), available at www.oecd.org/dataoecd/57/14/38393115.pdf (last visited 20 October 2012) [herein after ‘OECD’].

11 Ibid.

12 Ibid.

–  –  –

will lead to financial rewards down the track but generally their motivation to make the work is primarily drawn from their desire to communicate or connect with others, for the sake of expression or to gain fame.13 This definition seems to encompass most music mash-ups (songs combining two or more pre-existing recordings),14 video mash-ups (videos combining two or more pre-existing sets of footage), digital collages (artistic works combining two or more visual artworks with music in the background) and fan fiction (literary works incorporating a character, setting or plot from a pre-existing work)15 created and published online. This paper will predominately focus on mash-up music, and occasionally refer to video mash-ups.

A. (II) What is Mash-up Music?

Mash-up music emerged as a new genre of music in the nineties.16 Despite its modernity, it is based on a longstanding musical technique called sampling, which has existed since the sixties.17 Sampling is the act of digitally taking a portion of one sound recording and reusing it in a different piece of music. Mash-up artists often engage in what is commonly referred to as ‘high-mass sampling’. This is the act of                                                                                                                 13 Ibid.

14 Graham Reynolds, “A Stroke of Genius or Copyright Infringement? Mashups and Copyright in Canada”, (2009) 6:3 SCRIPTed 534.



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