Proposed changes to copyright laws pose threat to artists’ rights
NAVA concerned draft legislation may lead to increased instances of copyright infringement.
Image: Ena Fly Lane working in the studio. Photo by Dr Chrischona Schmidt courtesy Ikuntji Artists, NT.
[Image description: Close up aerial photo of an artist working on a bright yellow canvas. She is painting honey grevillea – Kalinkalinpa.]
The Australian government is currently requesting feedback on an exposure draft of the Copyright Amendment (Access Reforms) Bill 2021. The proposed changes to the nation’s copyright laws aim to better support the needs of Australians copyright users to access content in an increasingly digital environment. While NAVA supports the need for changes to the outdated Copyright Act 1968, NAVA fears the reforms will weaken laws that protect artists’ rights.
More than fifty years have passed since the Copyright Act was implemented. During this time, digital and social media have changed public, commercial and government expectations on what kinds of creative work should be accessed for free or manipulated into unauthorised uses. These changing expectations are not a justification for weakening laws that protect artists’ rights; rather, they signal the need to strengthen those laws. At the same time, the public, the corporate sector and all levels of government must be better educated about artists’ ownership rights of their own work and that ‘free’ is not ‘fair’.
The copyright system in Australia has been subject to a number of government inquiries, consultations and reports in recent years spurred on by current legislation falling behind technological advancement and debates around ‘fair use’ vs. ‘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.’
What are the proposed reforms?
NAVA has been working collaboratively with other concerned arts organisations to understand what the proposed changes will mean for artists and their rights as copyright owners.
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. The newly proposed reforms do not suggest that the Australian system move away from a ‘fair dealing’ regime, but it does recommend that the exceptions to copyright infringement be extended to include other purposes and the definition of what is considered ‘fair’ be broadened.
NAVA is concerned that a weakening of laws around copyright usage will create a power imbalance as the onus would be on the artist to prove in court that a use is not ‘fair’. While legal avenues may be available, the time and financial cost to artists is often prohibitive.
The Copyright Amendment (Access Reforms) Bill 2021 focuses on five main reform measures:
- Limitation on remedies for use of orphan works
- New fair dealing exception for non-commercial quotation
- Update and clarify library and archives exceptions
- Update and restore education exceptions
- Streamline the government statutory licensing scheme
You can read more about the details of all these proposed changes in the exposure draft discussion paper and NAVA will be breaking down our concerns on all measures in a submission that will be publicly available from 25 February 2022.
NAVA’s concerns with the changes
NAVA will be asking the Government not to go ahead with the Bill in its current form, pointing to the following issues affecting artists:
- While the stated intention of the reforms is to allow for greater access to creative content, the measures outlined to ensure artists are attributed alongside their artwork and remunerated for their work are not sufficient. NAVA is concerned this will result in far more instances of copyright infringement, with little protection or recourse available to artists after the fact.
- The orphan works measures will allow the free use of an artwork where an artist cannot be found or does not respond to contact attempts, if an artist later comes forward they cannot seek payment for past use, but can negotiate terms for future use. This will disproportionately affect First Nations artists whose work has historically been separated from attribution, artists without access to the internet, and artists from non-English speaking backgrounds. NAVA believes copyright laws should uphold the economic empowerment of all artists.
- While the reforms are somewhat structured to protect an artist’s commercial market, there is no consideration for the moral rights of an artist or measures to address the potential infringement of Indigenous Cultural Intellectual Property (ICIP). NAVA is concerned that the artist will be left out of decisions concerning the use of their artwork.
- Greater allowances will be made for posting artwork online. While the increased exposure and sharing of artwork holds many benefits, protections against online copyright infringement are not robust and this change heavily relies on people doing the right thing.
- Streamlining the education exceptions and government statutory licensing scheme will result in less money being paid to collecting societies on behalf of artists, resulting in less money for artists.
There is inherent hypocrisy in these reforms as they consistently reinforce the value of copyrighted material, of artwork, yet the changes intentionally create scenarios in which artists are less likely to be remunerated for their work and are more likely to suffer from exploitation.
How to add your voice
The due date for having your say has been extended to 25 February 2022, NAVA encourages anyone with examples of how they will be directly affected by these changes to lodge a submission, for help drafting your response please refer to our guide on ‘How to write a submission to an inquiry’.
