Customary practice when the law says ‘No’ #vala14 #s34

Tom Joyce Relying on customary practice when the law says ‘No’: justified, safe or simply ‘no go’

Copyright is a fundamentally flawed system – it will continue to disappoint. Level of protection tends to grow because it grows to protect the most valuable works. Australian Law Reform Commission has made a report on copyright – don’t know what Attorney-General will do about it. But doesn’t want to do anything to ‘damage industry’. Changing copyright comes with high political cost. IP obligations increasingly woven into trade agreements.

Norms vs law:
It took a quarter century for the law vs norm gap to be closed re time and format shifting. “There are risks associated with following a non-black letter law path, but those risks can be made manageably low.”

  • look at accepted (albeit evolving) norms
  • look for consonance between norms and evolving thinking
  • look at past behaviour of copyright owners as indicative of future behaviour
  • try to identify sector-wide approaches

‘Fairness’ is key. US has “fair use”, Australia/New Zealand have “fair dealing” exceptions but more restrictive and limited to categories eg ‘educational’. ALRC suggested potential listing of fair uses: research/study, criticism/review, parody/satire, reporting news, non-consumptive, private/domestic, quotation, education, public administration.

Seeking permission – engaging in diligent search but can’t find creator so go ahead anyway – is an evolving norm. Realistically you’ll only get 20% permission for works over 30 years old. “Copyright’s unpleasant family secret, which is neglect” – Treatment of orphan works is a stark failure.

Some organisations rely on takedown notices – throw everything up with a note “Contact us if you want to take it down” – but he doesn’t recommend this.

Q: If law changes here, whose law applies?
A: Works created elsewhere are protected here because of Berne Convention, but are protected under local jurisdiction/legislation.

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