The peak body protecting and promoting the Australian visual arts sector

Intellectual Property

NAVA asserts that it is fair for artists and designers to be entitled to control the use of their intellectual property.

NAVA plays an important role in advocating for the protection of artists' and designers' economic and moral rights both in law and in practice. Over its history NAVA has frequently taken action on behalf of artists whose IP is used without their consent or who come under duress to waive the right.

Free is not fair
Image: Artist Blak Douglas in his studio. Photo: Nick Cubbin.

Review of the Code of Conduct for Copyright Collecting Societies

The Australian Government has responded to the Productivity Commission’s report on IP arrangements in Australia by announcing they will seek further consultation with key groups.

NAVA was concerned that the Productivity Commission’s recommendation for a contentious fair use exemption would be adopted. We welcome the Government’s commitment to consult with the sector and work with industries to reach solutions that ensure Australian artists are protected.

As part of the Government’s response, a review of the Code of Conduct for Copyright Collecting Societies has been opened. The terms of reference for the review, discussion paper and a copy of the Code can be found at: Written submissions are due by Friday 29 September 2017.

Review of Copyright Regulations 1969 and the Copyright Tribunal (Procedure) Regulations 1969

The Government are also seeking views on an exposure draft of both the Copyright Regulations 2017 and the Copyright Legislation Amendment (Technological Protection Measures) Regulations 2017. The new legislation must be fit for purpose, reflect modern language and practises, and reduce red tape where possible. However some of the drafted regulations have significant implications, particularly in the area of enforcement:

  • The infringement notice scheme;
  • Code of conduct and takedown in relation to the safe harbour scheme; and
  • Expansion of circumstances when a technological protection measure can be circumvented.

Details on the consultation can be found here: Written submissions are due by Friday 6 October 2017.

June 2017 - Call to Action on Copyright

At the end of June 2017, the federal government will be making a decision in response to recommendations from both the Australian Productivity Commission and the Australian Law Reform Commission.

NAVA believes that the entitlements, experience and opinions of creators were overridden in these two reports, and NAVA is very concerned that artists are in danger of losing their hard won rights. This could negatively impact on artists' incomes and protection of their professional reputation.

You are encouraged to sign your name to the open letter, email your local MP and join with writers, musicians and film makers to oppose the pressure from the big tech companies who want your content for free.

On June 15 the Government passed the Copyright Amendment (Disability Access and Other Measures) Bill 2017. As part of this reform the Bill also amends the Copyright Act making certain exceptions for people with disabilities and for libraries and key cultural institutions to make copies of copyright material for preservation and archival purposes. NAVA welcomes this decision however the contentious decisions are still to come on copyright safe harbour provisions and whether to adopt a US-style 'fair use' system. Read our media release here.

Background information

In 2016 The Productivity Commission undertook a government commissioned study of Australian intellectual property and produced a draft report which recommends a change to the Australian Copyright Act from ‘fair dealing’ to a ‘fair use’ system, similar to what is used in the US. Very soon the federal government is due to make a decision in response to this report.

NAVA is very concerned about this proposed change and believes it would seriously endanger the rights of visual artists to earn copyright income. NAVA would like to ensure artists’ views and experiences are documented. Therefore, we sought information about your experience with copyright to use as part of our submission in response to the Productivity Commission draft report.

In 2016 NAVA recently sent our members and subscribers a copyright and fair use survey the results of which can be seen below.

You can register for updates from Copyright Agency/Viscopy here.

About Fair Dealing

The copyright law of Australia is governed by Copyright Act 1968 (Cth), operating nationwide. This Act and subsequent amendments gives practitioners control over the reproduction of their work. This includes all artistic creators, not just those who may consider themselves ‘professional.’

Currently it allows for certain limited exceptions under the general heading ’fair dealing’. The main exceptions to copyright infringement are the use for the purposes of:
· review or criticism
· research or study
· news-reporting

· parody or satire
· judicial proceedings or professional advice

It must also be 'fair'. What is fair will depend on all the circumstances, including the nature of the work, the nature of the use and the effect of the use on any commercial market for the work.

About Fair Use

Fair Use claims to balance the interests of copyright holders with the public interest. However, it shifts the balance of responsibility to creators who have to legally prove that a use is unfair.

NAVA is concerned that a ‘fair use’ regime would be incredibly detrimental to artists. This is because it would create a power imbalance where artists would be at the mercy of large enterprises who could see this as an opportunity to use copyright material for free. The onus would be on the artist to prove in court that a use is not ‘fair.’ This is a significant change to current Australian law.

You can find the relevant reports in the links below:
Productivity Commission draft report
PriceWaterhouseCoopers report

Below is NAVA's response to the productivity commissions report.

Robyn Ayres and Tamara Winikoff, Letter to the Editor, The Saturday Paper, 17 June 2017

Kate Haddock Chair of The Australian Copyright Council, Time for the truth to interfere with the copyright battle in Australia, Business Insider, 25 May 2017

Jenna Price, The Innovation this Government doesn't want, Canberra Times, 19 December 2016

Adam Suckling, The Productivity Commission's copyright changes would decimate Australia's creative industries, Sydney Morning Herald, 20 December 2016

‘Fair Use’ - the wrong direction at the wrong time for Australian artists, ArtsPeak Media Release, 2 May 2016
Kim Williams, Fair use does not mean free: Copyright recommendations would crush Australian content, chair of the Copyright Agency and Viscopy, Sydney Morning Herald, 6 May 2016

Lucy Carter, 90 per cent of artists report their work has been reproduced without copyright royalties, ABC The World Today, 1 June 2016

Design Protection

Image from pixabay

Under the current Australian intellectual property (IP) laws, unlike for works of ‘fine art’, creators of applied art objects that are produced in quantity are generally not entitled to copyright protection, and are left vulnerable to blatant copying unless they apply for design protection. NAVA has called for changes.

In 2015, the Government’s Advisory Council on Intellectual Property (ACIP) called for responses to its Options Paper ‘Review of the Designs System’. Then in 2016, the Productivity Commission asked for submissions in response to its ‘Intellectual Property Arrangements Draft Report.

The reports both recognise that there are some flaws in Australia’s IP arrangements but fail to suggest adequate viable alternatives, such as extending the term of protection or creating unregistered design rights.

In its submissions to both of these inquiries, NAVA recommended the changes we believe are required to support a flourishing Australian craft and design sector, in particular to protect craft practitioners and industrial, fashion, furniture and lighting designers.

Australian designers are seeing local and overseas replicas of their work being sold from which they earn nothing. This stymies the building of viable Australian craft and design businesses.