Following Oxford Dictionaries’ decision to crown “selfie” as “Word of the Year” for 2013, we saw a particularly famous one “break” Twitter and spark a copyright debate earlier this month: Oscars host Ellen Degeneres shared a star-studded photo that was retweeted over 2 million times in 2 hours.

Questions quickly arose about why the Associated Press sought her permission to share it when it was Bradley Cooper who pressed the button.

What happens on social media is a hot topic in any discussion about how copyright laws do and should operate in the online world.

Last month, the Australian Law Reform Commission (ALRC) concluded its 18-month enquiry, Copyright and the Digital Economy (ALRC Report 122), in which it considered whether and how the Copyright Act 1968 (Cth) (Act) should be updated to account for developments in the digital sphere.

While the sharing of content on networks like Facebook and YouTube has spread with great contagion, many social media users do not realize that their activities may involve breaches of copyright (however harmless those breaches may seem to some). Copyright concerns can arise when users share, as they often do, content constituting or incorporating all or part of someone else’s material.

Consider these two recently-observed examples:

Example 1

Facebook User A posts a status update in the following terms: “Where do you guys find all of your great cover photos? I often see things that I like when I’m browsing the internet, but I don’t want to infringe copyright.”

Facebook User B responds: “If it’s on the internet and it’s not watermarked, it’s fair game”.

Within a day, User A has thanked User B for the “advice” and replaced her old photo with an image that has almost certainly been copied from a website.

Example 2

Another Facebook user celebrates Australia Day by posting an artist’s creative image of the Sydney Opera House to her personal page, with the following comment: “Taking this opportunity to share some love through art. If you like this post, you will receive an artist and will need to post an image of his/her art. Let’s share some art love.”

Predictably, this receives several “likes” from other users who continue to post the works of their allocated artists, and so the snowball rolls on.

Most likely, these Facebook users would be found to have infringed copyright in the works they shared because their conduct does not fit within an existing fair dealing exception, such as use for the purpose of criticism or review (sections 41 and 103A) or parody or satire (sections 41A and 103AA). Equally likely is the probability that they are completely unaware that their conduct infringes others’ rights. These examples illustrate the point often made by proponents of fair use; there is a disconnect between what the law actually allows and what many assume it allows.

Some argue that such content-sharing activities should not constitute infringement, and Australian laws should better reflect the public’s expectations and the realities of being online. So, would these activities constitute infringement under the ALRC’s proposed fair use exception?

The proposed exception

In its Final Report tabled in Parliament on 13 February, the ALRC recommended that the existing fair dealing provisions be replaced with a flexible fair use exception that should include:

  • An express statement that a fair use of copyright material does not infringe copyright.
  • A non-exhaustive list of “fairness factors” to be considered in determining whether a use is fair, being the:
    • purpose and character of the use;
    • nature of the copyright material;
    • amount and substantiality of the part used; and
    • effect of the use upon the potential market for, or value of, the copyright material.

A non-exhaustive list of illustrative uses or purposes that may qualify as fair use, including (among others):

  • criticism or review;
  • parody or satire;
  • reporting news;
  • quotation; and
  • non-commercial private use.

“Social use” was deliberately excluded from the “illustrative purposes” list; the ALRC considered that social use will often not be fair, particularly where it harms rights holders’ markets and is not “transformative” (meaning use for a different purpose than that for which the material was created).

The ALRC also clarified that social use should not be interpreted as falling within “non-commercial private use” because many social uses are not private (citing as examples the acts of sharing copyrighted songs or videos on YouTube or Facebook).

Nevertheless, the ALRC indicated that certain social uses of copyright material (particularly transformative uses) may be fair, such as use for the purpose of creating and sharing user-generated content.

A particularly popular type of user-generated content is the meme, a classic example of which is “Grumpy Cat.” For those who missed this, it involves a photo of a cat overlaid with varying comedic captions playing on the cat’s less-than-impressed facial expression.

Currently, the act of sharing “Grumpy Cat” with 800 Facebook friends might be an exception to infringement if it can be viewed as a parody or satire, but not all memes can be so classified.

Under the proposed fair use exception, there would be more scope for this to be considered an exception, as the primary question would not be whether the meme is a parody or satire, but rather, whether the use of the relevant copyright work is fair.

Ultimately, the ALRC concluded that social use must be considered on a case-by-case basis by reference to the fairness factors.

Commentary

It is unclear when the government will formally respond to the ALRC’s Final Report, but Attorney General George Brandis delivered a speech to the

Australian Digital Alliance

on 14 February in which he said he remains unpersuaded that a fair use exception is the best direction for Australian law (though he maintained that he will “bring an open and inquiring mind to the debate”).

As content-sharing on social media is unlikely to abate, copyright owners should evaluate how, or whether, to take action. Some might consider taking proactive steps to prevent their content from being shared, such as displaying copyright notices on websites or applying watermarks to images.

Others may actually benefit from having their work shared on social networks; there is arguably no better advertising and no faster way to be “discovered.”

Those eager to share their work may want to consider making it available via Creative Commons; there are several standard licences which allow artists to select the terms upon which they are content for their works to be shared, and help to ensure that those who make their works available are appropriately credited.

While we wait to see whether the proposed fair use exception will become law, it is worth evaluating whether something can be gained by swimming with, not against, the social media current.

Similar moves afoot in the United Kingdom

Under the current UK law, largely contained in the Copyright, Designs and Patents Act 1988 (the “CDPA”), defences to copyright infringement are limited to the so-called “fair dealing” exceptions that are very similar to the current law in Australia, and similarly narrowly construed, such that the act complained of must fall within the scope and purpose of those acts set out in the relevant sections of the CDPA, and must also be “fair.”

If the act does not fall within one of the defined exceptions set out in the CDPA, it will be deemed unlawful no matter how “fair” the act may be.

The Hargreaves Report in November 2010, which had been commissioned by the UK government to investigate updating of UK law in part to cope with modern technology recommended additional copyright exceptions and building adaptability into the legislation to allow it to cope with future technologies not currently envisaged, but it did not endorse a move to an open ended US style “fair use” doctrine.

On 27 March 2014, the UK Government published draft statutory instruments which include exceptions for parody, personal copying, text mining, and further exceptions to expand the current exceptions for research and education.

Although these new exceptions aim to improve the current situation where minor acts of copying which benefit consumers, society and the economy are currently unlawful, they do not amount to open ended principles based exceptions.

The exceptions within these statutory instruments will become law on June 1, 2014, assuming both Houses of Parliament affirm them.