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Australian Copyright Law - The Balancing Act: Innovation vs Intellectual Property Rights









Matt Furie v. Infowars, LLC et al.

Australian Copyright Law and the balancing act;

Innovation versus Intellectual Property Rights


‘Fair use’ within the Australian Legislation is not reciprocal to the US Legislation. Within the Australian Copyright Act (1968) fair dealings by definition mean “using the material in any of the ways reserved to the copyright owner” (ACC INFORMATION SHEET G079v08
December 2017) and not “the legal doctrine that promotes freedom of expression by permitting the unlicensed use of copyright-protected works in certain circumstances” as expressed in US fair use copyright law (copyright.gov July 2018). There is a substantial difference between the US and Australian legislation and thus affects the outcome of copyright cases like the Matt Furie v. Infowars, LLC et al case. In achieving harmony between the two separate parties the court must facilitate innovation and intellectual property right, although not obstructed by the Australian Copyright Act (1968), with only a few exceptions to the Act, many artists fear prosecution by the precedence set in court.  To foster free expression and intertextuality the Copyright Act must be amended by a law that encompasses the needs of both parties and develops to include technological advancements. Furthermore, the courts should assess each case on the recommended criteria from The Australian Law Reform Commission Review (2013): “4.1 The Copyright Act 1968 (Cth) should provide an exception for fair use [that assesses the fairness factors that includes] (a) the purpose and character of the use; (b) the nature of the copyright material; (c) the amount and substantiality of the part used, and (d) the effect of the use upon the potential market for, or value of, the copyright material.” By following these guidelines, the Australian Copyright Act (1968) will be applied in a fair and equal manner that supports the original owners and artists that aim to incorporate their works within their own.


It is paramount to have a balance between innovation and creator rights because to have partisanship of the court goes against the Rule of Law (Rule of Law - Principles) established in Australia. In the case of Matt Furie v. Infowars, LLC et al US Legislation allowed for Infowars to put forward a case in the favour of innovation, however, the common clause of Australian and US law - without a copyright licence you may not use unoriginal works for use of profit - put an end to the production of the MDMA poster (seen in image 1) and other unauthorised Pepe paraphernalia. The current copyright laws of Australia do not inhibit creativity however through the precedent set by cases like Larrikin Music Publishing Pty Ltd v EMI Songs Australia Pty Limited [2010] FCA 29 many artists are unknowledgeable of their rights and how that affects their works. This then motivates the industry to change and evolve by seeking original works over reproduced and remixed works. Australian Copyright Law should coincide with the rights of freedom of expression (HUMAN RIGHTS ACT 2004 - SECT 16) and should, therefore, support the original creator and copyright owner to prevent the unauthorised reuse of their work with the current exceptions in place.


In Australia and America, freedom of the individual is one of the foundational stones of the juridical system. Additionally, the right to have privacy, opinion and reputation (HUMAN RIGHTS ACT 2004 - SECT 12) play a significant part in civil cases, specifically copyright and defamation. Within the Matt Furie v. Infowars, LLC et al case, there are two major points of prosecution. The first is the actual breach of copyright with the unwarranted use of the Pepe image and popularity which in turn made a profit for the defendant, and the second, a case of defamation of both the Pepe image and the creator Matt Furie. This plays into the idea of Natural Law and that “what you create is what you own” as the basis of the court's decision. Furthermore, the unauthorised reproduction of an original work is seen as a personal attack upon the owner. So when reviewing the copyright laws the biases of Natural Law v Legal Positivism must also be assessed. 

The Human Rights Act 2004, states that it “encourages individuals to see themselves, and each other, as the holders of rights, and as responsible for upholding the human rights of others” (HUMAN RIGHTS ACT 2004) and should, therefore, be upheld in copyright court cases such as the one previously mentioned, through the acknowledgement of the plaintiff’s right to ownership and the defendant’s requirement to recognise and act upon as such. Furthermore, the defendant should concede to the differing of opinion between themselves and the plaintiff on social matters such as the Donald Trump presidency. It was not the pure copyright breach that led to the case between Matt Furie and Infowars, but the breach of Furie’s rights to individual freedom to “(b) not to have his or her reputation unlawfully attacked” (HUMAN RIGHTS ACT 2004 - SECT 12) which can be classed as defamation of his person by the Civil Wrongs Act of 2002 9.1 (c). 


It is the belief of the court that by the Rule of Law everyone should be trialled equally, regardless of their individual morals and ideals (Rule of Law - Principles). However, if an individual's opinion oppresses others they should undoubtedly be held accountable, especially when it is the violation of the individual’s human rights expressed in the UDHR. Known as the contravening of rights, the courts must make a legislative distinction so that the freedom of an individual does not accidentally and/or intentionally contribute to the suppression of their political, creative, or moral opposition. In the case of Matt Furie v. Infowars, LLC et al this distinction would be important in the application of copyright law and the protection of original works. Furthermore with a set guideline, the legislation will be able to adapt to the exponential technological growth and continue to support creators not inhibit them, thus avoiding problems like; that “the Act allows circumvention of technological protection measures (TPMs)” and the streaming of shows as shown in cases like  Roadshow v iiNet and the NRL v Optus TV Now. Hence, the courts must assess and manage the balance of interests to ensure that neither opinion nor freedom of creative expression is oppressed by developing legislation that firmly supports both sides but does not foster hatred or maltreatment.


It is widely acknowledged that there is a conflict between copyright owners, their intellectual property rights and innovative artists that reproduce and remix works for public consumption. In the case of Matt Furie v Infowars, LLC et al, there was a blatant misused of Matt Furie’s work, however, it did spark the question of “At what point does copyright infringe upon innovation?” across the internet and legal communities. The Australian Copyright Act (1968) doesn’t prohibit innovation but the precedent set by cases like Mark Ronson v Zapp many artists were uninformed and thus stopped producing certain genres of music thus changing the industry to rely more intensely on original works. Therefore, the fair dealings provisions are sufficient in legal theory however in practice, an Australian equivalent of the US fair use provision would be beneficial to both parties in future copyright cases.

References

  1. https://www.legislation.gov.au/Details/C2018C00371 Australian Copyright Act 1968
  2. https://www.vox.com/culture/2017/9/21/16333162/pepe-the-frog-alt-right-dmca-takedown-fair-use-matt-furie Aja Romano Sep 21, 2017 - Vox
  3. https://www.alrc.gov.au/publications/4-case-fair-use-australia/what-fair-use
  4. https://www.lifehacker.com.au/2017/07/fair-use-vs-fair-dealing-how-australian-copyright-law-differs/ Nicolas Suzor Jul 18, 2017
  5. https://www.copyright.org.au/ACC_Prod/ACC/Information_Sheets/Fair_Dealing__What_Can_I_Use_Without_Permission.aspx?WebsiteKey=8a471e74-3f78-4994-9023-316f0ecef4ef (ACC INFORMATION SHEET G079v08 December 2017)
  6. https://www.copyright.gov/fair-use/more-info.html (Copyright.gov - July 2018)
  7. https://www.ruleoflaw.org.au/principles/ (Rule of Law - Principles)
  8. https://www.documentcloud.org/documents/4403864-C-D-Cal-2-18-Cv-01830-CAS-JPR-1-0.html Image 1 (Pg 3 - Matt Furie v. Infowars, LLC et al case document)
  9. https://www.legislation.act.gov.au/a/2004-5/current/pdf/2004-5.pdf (HUMAN RIGHTS ACT 2004)
  10. http://www.legislation.act.gov.au/a/2002-40/current/pdf/2002-40.pdf (CIVIL WRONGS ACT 2002)
  11. https://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/BriefingBook44p/Copyright
Mary Anne Neilsen, Law and Bills Digest 2013
  1. http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FCAFC/2012/59.html?stem=0&synonyms=0&query=optus%20tv%20now
NRL v Optus TV Now, AUSTLII 30 April 2012
  1. http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/HCA/2012/16.html?stem=0&synonyms=0&query=roadshow%20and%20iinet Roadshow v iiNet AUSTLII 20 April 2012
  2. http://www.alrc.gov.au/sites/default/files/pdfs/publications/final_report_alrc_122_2nd_december_2013_.pdf The Australian Law Commission Review - 2013
  3.  http://www.austlii.edu.au/au/cases/cth/FCA/2010/29.html Larrikin Music Publishing Pty Ltd v EMI Songs Australia Pty Limited [2010] FCA 29
  4.  http://rightforeducation.org/2016/08/jurisprudence-study-of-law/ Theories of Jurisprudence – What is the Study of Law? Kabir Hashmi August 9th, 2016
  5. https://www.cbb.com.au/2016/03/02/invent-or-innovate/) (CBB, Accessed Sep 2019)

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