Copyright laws are made to protect the rights of a creator’s tangible work from being stolen by others, but where does the law draw the line between what is a fair and what is blatantly stolen? Where does the law mistake creative expression for theft? By punishing harshly for the use of small portions of copyright material, are the creative community restricted by what they can creative? In many ways, yes, copyright law in Australia limits creativity through restrictive laws and how those laws are enacted in court. The Larrikin Music Publishing Pty Ltd v EMI songs Australia Pty Limited case, or more commonly known Men at work v Kookaburra case, demonstrates how copyright law in Australia restricts creativity rather than encouraging it. Copyright laws in Australia confine creative expression within vague ‘fair dealing’ laws and the difficult process of obtaining permission from copyright owners. Therefore, creative professionals are limited to what they can produce with copyright material without infringing copyright.

“If the reproduction of a small segment of the Kookaburra song in a pub rock anthem is considered to be a substantial part, what hope is there for a mash-up to avoid a finding of copyright infringement?” – Mark Rimmer

What is Copyright Law in Australia?

Governed under The Copyright Act (1968), copyright law in Australia exists to protect the work of one person from being copied by another. Centred on the idea no one should obtain profit from another’s creative labour without the original artists consent (Pearson & Polden, 2019). Ultimately, copyright is intended to support creativity, however in court, the law has proved to undermine this goal as demonstrated in the Men At Work case. Australian 80’s rock band Men At Work were sued by Larrikin Music in 2009 for copyright infringement of their 1934 children’s song, Kookaburra Sits in the Old Gumtree. The band’s songwriters Colin hay and Ron Strykert as well as EMI songs Australia were sued over similarities to Kookaburra in the iconic flute solo of Men At Work’s 1981 classic Australian song, ‘Down Under’. In February 2010 Larrikin was awarded 5% of Down Under royalties’ as of 2002. Men At Work appealed to the High court in 2011 but were refused. Larrikin Music were made aware of the similarities between the two songs after a 2007 episode of music quiz show, Spicks and Specks, that demonstrated the similarities in their segment; “Name the Australian nursery rhyme this riff has been based on”. It wasn’t until after this episode aired, over twenty years after the release of Down Under and over ten years after Larrikin obtained copyright from original artist Marion Sinclair, that Larrikin they decided to sue, seeking 40-60% of the royalties. Therefore, highlighting the intention of the lawsuit was money driven undermining the basis of copyright law, to protect creative expression.  

How do Copyright Laws Restrict Creativity?

What began with a lawsuit where the plaintiff’s motive was not focused on the artistic right of the song but the money they could possibly make from Men At Work’s interpretation, continued with proceedings that demonstrated the lack of focus on the artist’s creative transformation of the copyright material. Judge Jacobson concluded Men At Work were liable of copying two bars of Kookaburra’s four bar tune in the Down Under flute riff. The conclusion was made with focus on what Down Under had taken from Kookaburra as opposed to what was not, disregarding the entirety of the song and the ways in which the riff transformed the included copyright material. The two songs represent vastly different genres, making it difficult for Down Under to distract attention from the nursery rhyme, however these considerations were not deemed ‘fair’ in the conclusion of the case. Under the copyright laws, the case was determined technically and mathematically, as there is no distinctive guidance for what is fair in copyright law, therefore the case was a mathematical answer to a case of creative labour. The ruling caused confusion in the creative community, the gap between the law and creative expression constructs an uncomfortable working space for creative professionals to develop their works in a way that abides by copyright laws when that creative work may ultimately be judged on a technicality over their creative expression. Mark Himmer’s article on the Men At Work case, comments on the outcomes of the cases’ possible repercussions for creative professionals, “If the reproduction of a small segment of the Kookaburra song in a pub rock anthem is considered to be a substantial part, what hope is there for a mash-up to avoid a finding of copyright infringement?” With clear dismissal of the substance of the song leaning on a technically rather than creative expression, the outcome embeds a sense of severe caution when using copyright material within the creative community. The band noted in their defence the inclusion of Kookaburra was a “musical reference” with no ill intent, however there is no general exception for what is “fair” in The Copyright Act (1968) however, there are specific exceptions to copyright law in Australia where fair use can be successful as a defence.

What is Fair Dealing?

Copyright law in Australia have certain exceptions for using copyright material without permission from the copyright owner called “fair dealing.” Not to be confused with the US “fair use” laws that determine what is fair without permission depending in relation to the fairness factors, while fair dealing has a more narrow approach that allows use of copyright material without permission only within a specific purpose, those most significant to media professionals are;

• Research and study
• Criticism and review
• Parody and satire
• Reporting news.

Theses exceptions however, present a narrow creative field to construct works in, in a study conducted by the QUT (Queensland University of Technology) regarding reuse practises of 29 Australian creators, the interviewees found these exceptions “as a lot harder to breakdown what is parody? What is satire?” Determining whether a work can fit into these exceptions seemed to be a cause of struggle. Through this narrow field of exceptions, an atmosphere of fear is created, works can be penalised for copyright infringement even if they’re not making a profit. The ACC (Australian Copyright Council) defines fair dealing in relation to ‘The Panel case,’ as a “…abstract concept.” Thus the field of fair dealing exceptions is a limited space to work within, and what is considered to abide by these are determined depending on “…subjective judicial impressions” found in facts of other cases. With no clear guidance to what functions as a defence of fair dealing, the ability for those to create within the constraints of the law without infringing copyright proves difficult to determine. The QUT study found creators were more comfortable working in “the spirit” of fairness, rather than forming works to fit an unclear description.

If a work doesn’t ‘fit’ into a fair dealing exception, permission must be obtained from the copyright owner. However, the process of obtaining permission or a licence was seen, “as a source of confusion and frustration,” in the study, due to many often either being refused or ignored by the copyright owner, often dealing with publicists or companies not the artist themselves. The cost of copyright licences was also seen as an issue for the interviewees who were from varying degrees of success and professions, one musician describing it as a “total legal nightmare.” The stressful process of obtaining a copyright licence led some to abandon projects altogether. In terms of the Men At Work case, due to Down under not working within the constraints of a fair dealing exemption, The Copyright Act (1968) provided to have little consideration for the transformative nature of the Down Under flute riff. If under the US’s fair use laws, legislation that allows transformative uses of copyright material without permission, Larrikin may not have won due to how much Kookaburra was changed in the flute riff, going publicly unrecognised for almost thirty years. Fair dealing focuses on what is fair inside of the narrow exceptions and disregards what is fair creatively, therefore restricting the boundaries of creativity when using copyright material. Laws set in place in The Copyright Act (1968), have put limitations on the freedoms of creative professionals, avoiding copyright infringement is seen as an uphill battle, creators are often in legal battles and restricted by what they can create with copyright material.

The laws themselves are needed to protect copyright owners from outright plagiarism but do so by undermining the creative expression of others due to technicalities in subjective matters as demonstrated in the Men at Work case. What is deemed “fair” is determined within a narrow field of exceptions under fair dealing laws, leaving little room for creative expression without copyright infringement. The outcomes of cases like the Men at work case have developed fear in the creative community and with difficult processes to obtain licences or work within fair dealing exceptions the Australian copyright laws are evidently restrictive to creative expression rather than encouraging as it intends to achieve.

Reference List

Pearson, M. & Polden, M., 2019. The Journalist’s Guide to Media Law. 6th ed. Sydney: Allen and Unwin.