Fair Use Forever

Updated. I was reading with some interest a recent post on The Patry Copyright Blog discussing international criticism and the history behind the fair use doctrine in the US Copyright Act. As a resident of a country with much narrower and specific fair dealing provisions I am often envious of the breadth with which the US law approaches this issue. It seems incomprehensible to me that the USA should be criticised for these measures unless it be a suggestion that they are expensive and cumbersome to enforce – something that could be easily overcome without altering the scope of the law. Recent events in Australia serve as an excellent example as to why I think this way.

Those who have read my recent post on the film Better Living Through Circuitry or have experienced electronic music, would be aware of the artistic brilliance of many DJs in remixing and mashing music. As the discussion often highlights, copyright law stands as an impediment to many of the activities which these people undertake and whilst in some cases illegal art is produced (such as The Grey Album) in many, many others, creators are prevented from producing works.

It was with a sense of disappointment that I recently read that ARIA – the Australian Recording Industry Association – have developed a new license allowing DJs to purchase the right to format shift their music to enable them to take it to gigs. As our copyright law only permits format shifting for very specific personal purposes, any DJ who moves music from vinyl/tape/CD or other source to their laptop, mp3 player or any other storage device is automatically in breach of the law unless they purchase one of these licenses. Maximum penalties can be up to sixty thousand dollars and 5 years imprisonment with on-the-spot fines of over one thousand dollars.

This, of course, operates above and beyond the fact that the venue hosting the DJ also has to pay a license for the use of the music. Indeed it was only a few days ago that the Federal Magistrates Court held a number of clubs liable for damages for failing to have such a license – APRA v Cougars Tavern & Ors [2008] FMCA 369 (28 March 2008). This case concerned two premises, one of which was The Heat nightclub located at Melbourne’s Crown Casino. APRA (Australian Performing Rights Association) representatives attended the club on three occasions between March and August 2005, and used a mini disc recorder to record evidence of the use of music in the APRA Repertoire without the appropriate license. Interesting facts from the judgement include that there are around 4 million tracks presently in the APRA repertoire catalogue with 60,000 current licenses for playing music at public venues.

The case was uncontested and the judge had little difficulty finding the operators of the club in breach of the Copyright Act. Compensatory damages were awarded in the amount of $16,952.83 with an additional allocation of $4,587.48 for interest, being the amount payable for the licenses over this period of time.

Additional damages were also awarded for what the court considered to be a flagrant breach of the law. Referring to the dictionary definition of the term, the court considered evidence that the performances were to large audiences, the popularity of the venue, that it was regularly advertised as a venue which played music and that the music was central to the profits of the business. Unlike a venue which plays music in the background or in an incidental way, nightclubs are a category of business for which music is a primary source of income and in which license fees are calculated based on the number of people in attendance. The failure of the directors of the company to cooperate with APRAs investigation, preventing the accurate calculation of the number of customers of the club, also contributed to the characterisation of the breach as flagrant. In this instance the director had an extensive history of avoiding the payment of APRA licenses and this contributed to the proportion of damages ultimately awarded. The award against the director was for $125,000.00 and a further $50,000.000 was awarded directly against the company operating the club.

I don’t dispute that venues who use music as a primary means to attract and entertain customers should pay license fees. However I do raise an eyebrow at the thought of a DJ having to pay for a license to format shift music to play at a venue that has to pay a license to play music. To me this is nothing short of double dipping. I would expect that most DJs in the past have been in breach of the law without knowing it and given the often intermittent and the already limited financial rewards they receive, are not likely to be in a position to pay for these licenses in the future. One then has to wonder whether a venue that engages a DJ who has format shifted without a license is secondarily liable if they fail to inspect and verify its existence in advance. I consider the format shifting of music in this case to be a fair use and the law should reflect that. Without playing the music before an audience there is no value to the DJ – they don’t get paid just for having it on their laptop. This is a perfect example why narrow and specific fair dealing provisions are unworkable and undesirable in real life.

Articles:
A.P.R.A. v Cougars Tavern & Ors [2008] FMCA 369 (28 March 2008)
http://www.austlii.edu.au/au/cases/cth/FMCA/2008/369.html

TripleJ, New licence for DJs to format shift music (2 April 2008) <http://www.abc.net.au/triplej/musicnews/s2205666.htm> at 8 April 2008

ARIA, Licensing Frequently Asked Questions <http://www.aria.com.au/pages/licensing-faq.htm> at 9 April 2008

TechDirt, The International Whisper Campaign Against Fair Use (7 April 2008) <http://www.techdirt.com/articles/20080403/012447736.shtml> at 8 April 2008

ArsTechnica, Big Content in worldwide "whisper campaign" against Fair Use (7 April 2008) <http://arstechnica.com/news.ars/post/20080407-patry-copyright-owners-wants-rights-expanded-to-were-rabbit-size.html> at 8 April 2008

The Patry Copyright Blog, Fair Use, the Three-Step Test, and the Counter-Reformation (2 April 2008) <http://williampatry.blogspot.com/2008/04/fair-use-three-step-test-and-european.html> at 8 April 2008