Queensland University of Technology
From the SelectedWorks of Matthew Rimmer

November, 2012

A Submission to the Australian Law Reform
Commission on Copyright and the Digital
Economy: Remix Culture
Matthew Rimmer, Australian National University College of Law

Available at: https://works.bepress.com/matthew_rimmer/136/

A SUBMISSION TO THE AUSTRALIAN LAW REFORM COMMISSIONCOPYRIGHT AND THE DIGITAL ECONOMY:REMIX CULTURE‘Kookaburras’, Powerhouse Museum Collection,
http://www.flickr.com/photos/powerhouse_museum/2555451906/lightbox/

DR MATTHEW RIMMERAUSTRALIAN RESEARCH COUNCIL FUTURE FELLOWASSOCIATE PROFESSOR
THE AUSTRALIAN NATIONAL UNIVERSITYCOLLEGE OF LAW

The Australian National University College of Law,
Canberra, ACT, 0200
Work Telephone Number: (02) 61254164
E-Mail Address: Matthew.Rimmer@.anu.edu.au

BIOGRAPHY

I am an Australian Research Council Future Fellow, working on Intellectual Property
and Climate Change. I am an associate professor at the ANU College of Law, and an
associate director of the Australian Centre for Intellectual Property in Agriculture(ACIPA). I hold a BA (Hons) and a University Medal in literature, and a LLB (Hons)from the Australian National University. I received a PhD in law from the Universityof New South Wales for my dissertation on The Pirate Bazaar: The Social Life of
Copyright Law. I am a member of the ANU Climate Change Institute. I havepublished widely on copyright law and information technology, patent law andbiotechnology, access to medicines, clean technologies, and traditional knowledge.
My work is archived at SSRN Abstracts and Bepress Selected Works.
I am the author of Digital Copyright and the Consumer Revolution: Hands
off my iPod (Edward Elgar, 2007). With a focus on recent US copyright law, the bookcharts the consumer rebellion against the Sonny Bono Copyright Term Extension Act
1998 (US) and the Digital Millennium Copyright Act 1998 (US). I explore thesignificance of key judicial rulings and consider legal controversies over new
technologies, such as the iPod, TiVo, Sony Playstation II, Google Book Search, andpeer-to-peer networks. The book also highlights cultural developments, such as the
emergence of digital sampling and mash-ups, the construction of the BBC Creative
Archive, and the evolution of the Creative Commons. I have also also participated in a
number of policy debates over Film Directors' copyright, the Australia-United States
Free Trade Agreement 2004, the Copyright Amendment Act 2006 (Cth), the AntiCounterfeiting Trade Agreement 2010, and the Trans-Pacific Partnership.
I am also the author of Intellectual Property and Biotechnology: BiologicalInventions (Edward Elgar, 2008). This book documents and evaluates the dramatic
expansion of intellectual property law to accommodate various forms of
biotechnology from micro-organisms, plants, and animals to human genes and stem
cells. It makes a unique theoretical contribution to the controversial public debate overthe commercialisation of biological inventions. I edited the thematic issue of Law inContext, entitled Patent Law and Biological Inventions (Federation Press, 2006). I
was also a chief investigator in an Australian Research Council Discovery Project,‘Gene Patents In Australia: Options For Reform’ (2003-2005), and an Australian
Research Council Linkage Grant, ‘The Protection of Botanical Inventions (2003). I2am currently a chief investigator in an Australian Research Council Discovery
Project, ‘Promoting Plant Innovation in Australia’ (2009-2011). I have participated ininquiries into plant breeders' rights, gene patents, and access to genetic resources.
I am a co-editor of a collection on access to medicines entitled Incentives for
Global Public Health: Patent Law and Access to Essential Medicines (Cambridge
University Press, 2010) with Professor Kim Rubenstein and Professor Thomas Pogge.
The work considers the intersection between international law, public law, andintellectual property law, and highlights a number of new policy alternatives – such as
medical innovation prizes, the Health Impact Fund, patent pools, open source drug
discovery, and the philanthropic work of the (RED) Campaign, the Gates Foundation,and the Clinton Foundation. I am also a co-editor of Intellectual Property andEmerging Technologies: The New Biology (Edward Elgar, 2012), with Alison
McLennan.
I am a researcher and commentator on the topic of intellectual property,
public health, and tobacco control. I have undertaken research on trade mark law andthe plain packaging of tobacco products, and given evidence to an Australianparliamentary inquiry on the topic.
I am the author of a monograph, Intellectual Property and Climate Change:
Inventing Clean Technologies (Edward Elgar, September 2011). This book charts thepatent landscapes and legal conflicts emerging in a range of fields of innovation –including renewable forms of energy, such as solar power, wind power, andgeothermal energy; as well as biofuels, green chemistry, green vehicles, energy
efficiency, and smart grids. As well as reviewing key international treaties, this bookprovides a detailed analysis of current trends in patent policy and administration in
key nation states, and offers clear recommendations for law reform. It considers such
options as technology transfer, compulsory licensing, public sector licensing, andpatent pools; and analyses the development of Climate Innovation Centres, the EcoPatent Commons, and environmental prizes, such as the L-Prize, the H-Prize, and the
X-Prizes. I am currently working on a manuscript, looking at green branding, trade
mark law, and environmental activism.
I also have a research interest in intellectual property and traditional
knowledge. I have written about the misappropriation of Indigenous art, the right ofresale, Indigenous performers’ rights, authenticity marks, biopiracy, and population
genetics.
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EXECUTIVE SUMMARY

This submission draws upon a number of pieces of research on copyright law andremix culture – including:

1.

Matthew Rimmer, 'An Elegy for Greg Ham: Copyright Law, the Kookaburra

Case, and Remix Culture' (2012) forthcoming.

2.

Matthew Rimmer, 'A Fair Use Project for Australia: Copyright Law andCreative Freedom' (2010) 28 (3) Copyright Reporter 165-212

3.

Matthew Rimmer, 'Fair Use and Other Fantastic Beasts: In Search of Harry

Potter' (2009) 21 (9) Australian Intellectual Property Law Bulletin 188-192.

4.

Matthew Rimmer, 'Harry Potter and the Lexicon of Doom' (2008) 21(2) Australian Intellectual Property Law Bulletin 26-29.

5.
(2005)

Matthew Rimmer, 'The Grey Album: Copyright Law and Digital Sampling'
114 Media

International

Australia

40-53,

SSRN:

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=648323

Such matters are also explored in the book:

Matthew Rimmer, Digital Copyright and the Consumer Revolution: Hands off myiPod, Cheltenham (UK) and Northampton (Mass.): Edward Elgar, July 2007,
http://www.e-elgar.co.uk/bookentry_main.lasso?id=4263

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RECOMMENDATIONS
In its issues paper, the Australian Law Reform Commission asks a number of interconnected questions about transformative use, fair dealing, and fair use:

Transformative use
Question 14.

How are copyright materials being used in transformative and collaborativeways—for example, in ‘sampling’, ‘remixes’ and ‘mashups’. For what purposes—for
example, commercial purposes, in creating cultural works or as individual self-expression?
Question 15. Should the use of copyright materials in transformative uses be more freely
permitted? Should the Copyright Act 1968 (Cth) be amended to provide that transformativeuse does not constitute an infringement of copyright? If so, how should such an exception beframed?
Question 16. How should transformative use be defined for the purposes of any exception?
For example, should any use of a publicly available work in the creation of a new work be
considered transformative?
Question 17. Should a transformative use exception apply only to: (a) non-commercial use;or (b) use that does not conflict with a normal exploitation of the copyright material and does
not unreasonably prejudice the legitimate interests of the owner of the copyright?

Fair dealing exceptions
Question 45.

The Copyright Act 1968 (Cth) provides fair dealing exceptions for the

purposes of:a.

research or study;b.

criticism or review;c.

parody or satire;d.

reporting news; ande.

a legal practitioner, registered patent attorney or registered trade marks attorneygiving professional advice.
What problems, if any, are there with any of these fair dealing exceptions in the digital
environment?

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Question 46. How could the fair dealing exceptions be usefully simplified?
Question 47.

Should the Copyright Act 1968 (Cth) provide for any other specific fairdealing exceptions? For example, should there be a fair dealing exception for the purpose of
quotation, and if so, how should it apply?
Other free-use exceptions
Question 48.

What problems, if any, are there with the operation of the other exceptions in

the digital environment? If so, how should they be amended?
Question 49.

Should any specific exceptions be removed from the Copyright Act 1968

(Cth)?
Question 50.

Should any other specific exceptions be introduced to the Copyright Act 1968

(Cth)?
Question 51.

How can the free-use exceptions in the Copyright Act 1968 (Cth) be simplified

and better structured?
Fair use
Question 52.

Should the Copyright Act 1968 (Cth) be amended to include a broad, flexible

exception? If so, how should this exception be framed? For example, should such an exception
be based on ‘fairness’, ‘reasonableness’ or something else?
Question 53.

Should such a new exception replace all or some existing exceptions or should

it be in addition to existing exceptions?

In response, I would make the following submissions on the topic of copyright law,and transformative use:

Recommendation 1
There is a need to establish a Fair Use Project in Australia to provide
institutional support for copyright exceptions in Australia.
The relevant government departments – such as the Attorney
General’s Department, the Department of Broadband, Communications,and the Digital Economy, and the Department of Foreign Affairs andTrade – are focused on questions of legislation and policy; and have no6

capacity or interest in running test cases in respect of copyrightexceptions. The Copyright Tribunal has had a rather narrow role ofarbitration. IP Australia is focused upon industrial property. The
copyright collecting societies are obviously hostile to copyright exceptions,generally, and have opposed broad readings of copyright exceptions inboth the context of policy disputes, and litigation. The Australian
Copyright Council and the Arts Law Centre of Australia are very much
focused upon the defending the economic and moral rights of artistic
creators and copyright owners. The community legal centres in Australia
do not possess any particular track record or expertise in respect of
copyright litigation, generally, and disputes about copyright exceptions,more particularly, the defence of fair dealing. The Australian Digital
Alliance is focused upon the interests of libraries, educational institutions,and technology developers, such as Google. The Creative Commons
Australia is primarily focused on the development and up-take of Creative
Commons licences, rather than larger questions of copyright litigation andlaw reform. The Electronic Frontiers Australia has a broader remit thanmerely copyright law, looking at larger issues of freedom of speech andcensorship on the Internet. Well-established university centres, such as theIntellectual Property Research Institute of Australia, the Australian
Centre for Intellectual Property in Agriculture, and the Cyberspace
Centre for Law and Policy, have a broader remit than copyright law, andlack any accompanying legal clinic.
In the absence of any Fair Use Project, the defence of fair dealing
is currently championed by ill-suited defendants in Australia. Large
media broadcasters – such as Network Ten Pty Ltd - have been the mainones to raise the defence of fair dealing in litigation. Such entities areclearly poor champions of the defence of fair dealing, because they equally
have an interest in protecting the large portfolio of copyright works. The
Fair Use Project in the United States has played an important role inproviding a strong voice for copyright exceptions – even though theoutcomes of the cases that it has been involved in have been variegated.

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An Australian Fair Use Project would support advocacy, litigation,
policy, and advice with respect to copyright exceptions. Such a Fair Use
Project would represent copyright users – including creative artists, fans
and amateurs, citizen journalists, scholars and researchers, and others
who rely upon copyright exceptions. Such a Fair Use Project should be
supported by the Federal Government – much like the Arts Law Centre ofAustralia and the Australian Copyright Council.

Recommendation 2
Australia’s fair dealing exceptions fail to adequately deal with quotations,transformative uses, sampling, remixes, and mash-ups. This is evident in
the Kookaburra case.

Recommendation 3
The new defence of fair dealing for parody and satire introduced in 2006
only provides protection for a limited range of cultural works of aparticular aesthetic or political character. As seen in the Kookaburra case,certain transformative works fall outside the scope of the defence of fairdealing for parody and satire.

Recommendation 4
The United States defence of fair use affords protection to transformative
works. There is some debate about the extent to which this includes
sampling, remixes, and mash-ups.

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Recommendation 5
Ideally, my first preference would be that the Australian Government
should adopt a general defence of fair use, which covers quotations,transformative uses, sampling, remixes, and mash-ups.

Recommendation 6
My second preference would be that the Australian Government should
introduce a flexible dealing defence, which covers transformative works,
sampling, remixes, and mash-ups.

Recommendation 7
My third preference would be that the Australian Government should
introduce a defence of reasonable use for economic rights (much like forthe regime of moral rights), which includes transformative works,
sampling, remixes, and mash-ups.

Recommendation 8
My fourth preference would be that the Australian Government should
introduce a particular defence of fair dealing, which includes
transformative works, sampling, remixes, and mash-ups. However, such adefence should apply to both commercial and non-commercial uses, and toboth public and private uses.

Recommendation 9
My fifth preference would be that the Australian Government introduce aparticular defence of fair dealing that covers quotations, tributes, andhomages. I am concerned, though, that such a defence may be too narrowand limited.

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Recommendation 10
It is recommended that Australia introduce an exemption in thetechnological protection measures regime dealing with quotations,transformative works, sampling, remixes and mash-ups.

Recommendation 11
It is doubtful that any proposal for statutory licensing or compulsory
licensing of transformative works, remixes or mash-ups in Australia will
provide an effective solution.

Recommendation 12
Creative Commons licences – particularly those especially adapted to deal
with sampling – may facilitate mash-ups. Nonetheless, certain Creative
Commons licences, particularly those with no-derivative works clauses,
may be used to discourage the creation and production of mash-ups.

Recommendation 13
It is suggested that, as recommended by Peter Jaszi and Pat Aufderheide
in their book Reclaiming Fair Use, cultural groups could create
professional codes of conduct to help delineate what uses of copyrightmaterial are fair within an interpretative community.

Recommendation 14
As part of its underlying objectives, Australia’s copyright regime should
promote freedom of political communication and artistic expression.

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