Standoff: Copyright vs. Freedom of the Press

Are the two really in competition? In the light of Stephen Conroy's failed media reforms, Fiona Phillips, Director of the Australian Copyright Council, enlightens us on the modern tension between these two ideas.

Senator Conroy’s ill-fated media package has seen a lot of discussion about freedom of the press in recent days. Against that background, it is topical to consider freedom of the press and regulation. However rather than focus on media regulation I will look at a different type of regulation: copyright.

The blackout of major websites in January 2012 in protest against the Stop Online Piracy Act in the United States is a striking example of how copyright is alleged to impinge on the right to freedom of expression.

Copyright is recognised in two other human rights documents. The Universal Declaration of Human Rights (Article 27) which provides:

Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.

And then in treaty form in Article 15 of the International Covenant on Economic, Social and Cultural Rights which recognises the author’s right:

To benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.

Freedom of expression and copyright are, thus, part of the same human rights framework and as such need to be counterbalanced. For example, in a recent case the European Court of Human Rights held that the convictions for copyright infringement against the founders of the file-sharing website Pirate Bay were not in breach of their right to freedom of expression.

So what is the role of copyright and what is its relationship to freedom of the press?

The policy rationale is that copyright provides incentives to creators while ensuring access to information. It achieves this through a range of limitations and exceptions to the exclusive rights of the copyright owner. News media provides a useful illustration of how this works in practice.

Copyright subsists in a wide range of material: literary works, artistic works, musical works, sound recordings, films and broadcasts. For example, articles, photos, cartoons, graphs, videos and computer programs.

This enables the owner of copyright (generally the creator in the case of freelancers or the publisher or broadcaster in the case of employee journalists, photographers and cartoonists) to exercise a range of exclusive rights.

While there is no registration system for copyright, there are a couple of prerequisites for protection.

Firstly, copyright does not protect ideas. It only protects the unique way they have been expressed.

Secondly, something must be original to qualify for copyright protection. Originality does not require uniqueness; rather it requires that the copyright material be the product of the skill and labour of a human author. This means that facts and information are not protected by copyright.

These limitations assist the press to do its job and serve the public interest in the free-flow of information. They also limit the rights of members of the press as copyright owners. For example, in a 2010 decision, Justice Bennett of the Federal Court of Australia held that there was no copyright in headlines as they lacked sufficient originality.

Australian copyright law also recognises the special role of the media in some specific exceptions. For example there are fair dealing exceptions for the reporting of news by a ‘newspaper, magazine or similar periodical’. And there are also fair dealing exceptions for criticism or review. These exceptions enable members of the press to use a substantial part of a third party’s copyright material without seeking permission provided that it is fair, it is for the nominated purpose and there is sufficient acknowledgement of the author. This is a clear example of where copyright law has moderated the rights of the copyright owner in the public interest.

You may have noticed that the news reporting exception referred to above is limited to ‘newspapers, magazines and similar periodicals’. There is no mention of the non-traditional formats in which news is now communicated, for example in the Larrikin Post! It is therefore not surprising that the Australian Law Reform Commission (ALRC) is currently conducting an inquiry into the adequacy and appropriateness of exceptions in Australian copyright law in the digital economy.

One of the key issues under consideration by the ALRC is whether Australia should move from its purpose-based fair dealing exceptions to an open-ended fair use exception such as exists in the United States.

Surely, a relevant consideration is the different constitutional frameworks in America and Australia? In the absence of a Bill of Rights providing for freedom of expression, it may not be appropriate or workable to move to an open-ended exception.

What is clear is that few industries have been more impacted by the digital economy than news media. And copyright law and policy continues to have an important role to play.

As more members of the press become freelancers and therefore own their own copyright, it is vital that they understand their rights and be able to negotiate effective licences with media outlets. It also vital that they understand their responsibilities.

Journalists need to understand the copyright implications of sourcing third party material from social media platforms. When copyright material is posted on social media, one should not assume that the person posting the material is the author. For example, the BBC was criticised for failing to properly attribute photos it sourced from Twitter during the London riots in 2011.

Likewise, it is also important to think about copyright issues in relation to comments posted by third parties on websites and social media platforms. For example, have you got a licence to reproduce and communicate those comments? Have you put in place mechanisms to protect you from liability for any infringing material posted by third parties?

These are just some of the copyright issues facing the media in 2013.

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