Oxford-UNSW Copyright Scholars Roundtable: Exceptions reform: fair use for Australia?

A number of copyright scholars enjoyed a day of copyright reform related discussion thanks to Michael Handler (UNSW) and Emily Hudson (Oxford) at UNSW Law School on 17 December 2013. I opened the discussion on the question of fair use, and set out my brief speaking notes below: (A fully developed paper will follow)

The ALRC Final Report on Copyright and the Digital Environment was presented to the Government on 29 November 2013. The Attorney-General, Senator George Brandis has confirmed that the Final Report recommends the introduction a ‘broad flexible exception for fair use’. The full Report must be tabled before Parliament by February 2014 and a Government response to the Report should be forthcoming some time in 2014. However, the Attorney-General has already indicated that he does not support significant changes to the copyright law which would restrict the rights of copyright owners:

‘The government’s response to the ALRC report will be informed by the view that the rights of content owners and content creators ought not to be lessened and that they are entitled to continue to benefit from their intellectual property.’

The question that I would like to ask is why and how the introduction of a fair use exception would in fact lessen the rights of owners or prevent them from continuing to benefit from their intellectual property (in this case copyright)?

Leaving aside the example of the US which has a fair use law and seems to still be enabling copyright owners to make enough money to get by (!), other jurisdictions have more open ended exceptions to copyright, so fair use should not be seen as open slather for unremunerated uses.

Fair use can and should be cast in such a way that it reflects the balance of interests in copyright.

I have been considering the Canadian example: where despite significant legislative reform which declined to introduce a fair use exception, the Supreme Court has re-crafted fair dealing so it is in effect a fair use law.

Such an approach would build upon the decisions of the Canadian Supreme Court in Théberge v. Galerie d’Art du Petit Champlain inc., [2002] 2 S.C.R. 336, 2002 SCC 34  and CCH Canadian Ltd. v. Law Society of Upper Canada, [2004] 1 S.C.R. 339, 2004 SCC 13, which recognized that the Copyright Act contained a ‘balance between promoting the public interest in the encouragement and dissemination of works of the arts and intellect and obtaining a just reward for the creator’ and that this required a recognition of the limits on the rights of the copyright owner clearly articulating fair use as user’s rights.

In Alberta v Canadian Copyright Licensing Agency (one of five copyright cases handed down on 12 July 2012) the Supreme Court held that previews on iTunes were fair dealing, stating that: ‘One of the tools employed to achieve the proper balance between protection and access in the Act is the concept of fair dealing, which allows users to engage in some activities that might otherwise amount to copyright infringement. In order to maintain the proper balance between these interests, the fair dealing provision must not be interpreted restrictively.’

The Court continued:

‘an important goal of fair dealing is to allow users to employ copyrighted works in a way that helps them engage in their own acts of authorship and creativity’.

As Michael Geist has argued, this decision paves the way for a more 'principles based' approach to fair dealing which effectively transforms it into a law more akin to fair use. The Canadian experience may provide a good model for Australian reform in this area.

Therefore I contend that a fair use law may be crafted and interpreted in a way that does not represent a challenge to the rights of owners, but rather better reflects the balance underlying copyright law. The approach articulated above by the Attorney-General should not necessarily prevent the introduction of a fair use style defence.

Julian Assange: Hero or Villain, a binary choice

This is a transcript of my presentation to the Law, Literature & the Humanities Association of Australasia: Interpellations Conference (5-7 December 2013)

This is a difficult issue to write on definitively as the war on whistleblowers is being played out as we speak. Just a few days ago, the ABC was lambasted for reporting the news of the bugging of the mobile phones of the Indonesian President and his wife. Similarly, The Australian recently ran a facile editorial calling for Julian Assange to leave the Ecuadorian Embassy, ‘now the US Justice Department has made clear it has no intention of prosecuting’ him.

I have chosen to discuss this war in the context of two recent major movies: We Steal Secrets and The Fifth Estate. I want to consider whether the vilification of Assange occurring in the context of the fictionalised movie, The Fifth Estate, is balanced out by the ‘documentary’ of We Steal Secrets? Unfortunately both movies were based on biased sources and both were ultimately more concerned with telling an entertaining story that telling the truth. Further, not enough is reported about the facts to enable the audience to distinguish fact from fiction, but viewers will be left with the feeling that it has.

We have also witnessed a bizarre and unquestioned merger of fact and fiction. For example, The Guardian reported that, interviewed on ITV’s The Agenda in October 2013, the British Prime Minister, David Cameron, was asked to review The Fifth Estate. Observing that he had ‘managed to see the first part of the film’, the PM told The Agenda that Benedict Cumberbatch, who plays Assange, was ‘brilliant, fantastic piece of acting. The twitchiness and everything of Julian Assange is brilliantly portrayed.’ However, he then goes beyond a review of the film and the strange merger of fact and fiction begins in earnest. Cameron, and remember he has admitted to seeing only the ‘first part’ of the film, states: ‘he felt uneasy that in the film Assange appears to be more concerned about the fate of people who leaked documents to WikiLeaks – an apparent reference to Chelsea Manning – rather than people whose security may have been jeopardised by the leaks.’ In this swipe, Cameron dismissed very real concerns for Manning’s wellbeing as well as confusing, in his own and the readers’ minds the film and reality. Cameron continues: ‘There is an interesting  bit at the beginning when he says some of these documents are confidential, people’s lives are at risk and of course he is thinking of the people who have leaked them. Actually, you also need to think about the people whose lives are at risk because they have been leaked. In the bit of the film I saw that didn’t come out enough. But it makes you think.’ Later in the same interview, the PM is asked his views regarding the leaking of NSA documents by Edward Snowden and the suggestion that the UK Government was snooping on its citizens. He replied: ‘We have very good rules in this country. If a telephone call is going to be listened into that has to be signed off by the home secretary personally. There are very good safeguards in place.’ The merger of fact and fiction is complete.

So what is the model for The Fifth Estate? The whistleblower film is not a new genre, and there is a large number of films and books where the whistleblower is the hero, including John Le Carre’s recent book A Delicate Truth, which examines the story of Toby Bell: ‘the most feared creature of our contemporary world: a solitary decider.’ In the majority of these works, the whistleblower is celebrated as the hero. Such stories include: All The President’s Men (1976), The China Syndrome (1979), Silkwood (1983), The Whistleblower (1987), The Insider (1999), The Constant Gardner (2005), The Most Dangerous Man in America: Daniel Ellsberg and the Pentagon Papers (2009), The Whistleblower (2010) and Fair Game (2010).

However, these hero stories are not the model for The Fifth Estate. Rather,  I would locate it more directly in the ‘dangerous geek’ genre, akin to The Social Network and Jobs. Again, the temptation in these films is to depict the neurotic, anti-social geek as the person who uses up and ultimately abandons his friends. Steve Jobs is shown as effective in starting up the business, based on Wozniak’s computing skills, but he ruthlessly exploits and then abandons the friends who helped him build the first Apples in his parents’ garage. In The Social Network, Facebook founder Mark Zuckerberg is also shown as exploiting carelessly those around him.

I like a good ‘hero story’ as much as the next person. However, I believe it is dangerous and misleading to reduce the WikiLeaks story down to a good versus evil showdown. This is particularly the case when the story is still playing out and still has a very real set of consequences for vulnerable people, including Manning, Assange and now of course, Snowden. The exhortation to Assange to exit the Embassy cited above must be considered in the context of real life rather than dramatic consequences. This is not a new development in a movie plot line.

The Fifth Estate is preoccupied with the question of whether Assange is good or evil, as is We Steal Secrets. Both start from the angle that Assange could be a hero, and then expose him as paranoid, delusional and worst of all, uncaring by the end of the film. He loses his humanity to the machine. The technology of leaking literally becomes more important than the alleged lives at stake, but this is all done in the cause of narrative development and dramatic tension, rather than accuracy and truth. Yes these films are meant to entertain, but as the discussion above demonstrates, this is not the way it may be interpreted by audiences, who perceive it as an accurate portrayal of events.

Assange and others, such as Geoffrey Robertson, have recognised the dangers lurking in ‘fictionalised’ accounts such as The Fifth Estate. There was a well-publicised exchange between Assange and Benedict Cumberbatch online and reported in The Guardian (which it must be remembered is a key player in and source of the content for The Fifth Estate).

Assange’s letter to Cumberbatch included the following:

‘The bond that develops between an actor and a living subject is significant.

If the film reaches distribution we will forever be correlated in the public imagination. Our paths will forever be entwined. Each of us will be granted standing to comment on the other for many years to come and others will compare our characters and trajectories.’

Assange continues:

‘Feature films are the most powerful and insidious shapers of public perception, because they fly under the radar of conscious exclusion.

This film is going to bury good people doing good work, at exactly the time that the state is coming down on their heads.

It is going to smother the truthful version of events, at a time when the truth is on most demand.

As justification it will claim to be fiction, but it is not fiction. It is distorted truth about living people doing battle with titanic opponents. It is a work of political opportunism, influence, revenge and, above all, cowardice.

It seeks to ride on the back of our work, our reputation and our struggles.

It seeks to cut our strength with weakness. To cut affection with exploitation. To cut diligence with paranoia. To cut loyalty with naivety. To cut principle with hypocrisy. And above all, to cut the truth with lies.’

Cumberbatch’s response to Assange was discussed in another Guardian article, again breathlessly and heedlessly merging discussion of the film and real life politics, regardless of Cumberbatch’s status as an actor. (In fact the writer of the article admits to ‘a moment of genuine confusion’ when she thought she ‘was about to meet Assange himself.’).

The article provides a summary from Cumberbatch regarding what his response to Assange’s email was:

‘I don’t want to go into any great detail, but it took me four hours and the central thrust was: this is not documentary, this is not a legally admissible piece of evidence in a court of law, it’s not going to alter perception in a way that is actually politically going to damage you at all. People who will come to see this film will be savvy enough to see it as what it is; it’s a starting point,  that should both provoke and entertain. It will be a talking point, but your life, your private life, your persona, is fatefully intertwined with your mission – it cannot not be now. And to be honest, I think the sort of general perspective on you is still echoing from the kind of character assassinations that began way back when, with the initial leaks, and that is now heightened by the accusations of sexual misconduct in Sweden, and so you’re known as this white-haired Australian weirdo wanted for rape in Sweden who’s holed up behind Harrods in some embassy. So the misinformation about you is already there.’

There is some discussion of Cumberbatch’s thoughts on Assange’s childhood and the impact this might have had on his personality and mental state. And then, as with the interview with Cameron discussed above, the article moves to Cumberbatch’s attitudes to ‘cyber-whistleblowers’ including WikiLeaks and Snowden, which we are told are ‘decidedly ambivalent’: ‘He is alarmed by revelations of mass surveillance by the NSA and GCHQ, and doesn’t like the idea of anyone reading his private emails…but then adds, “Oh, but you might have stopped me from being killed on a tube I took last Wednesday. If they are saving lives, how can we say that’s less important than civil liberties?...”’. Whilst interesting in a general sense, why are we presented with Cumberbatch’s views on these important issues as if he is an authoritative source?

Geoffrey Robertson in his recent essay expressed the view in an essay that Assange’s withdrawal from  his autobiography project actually left the field open to negative portrayals of him and his work.

He also identifies several critical inaccuracies in the film which are important to the purported balance of its portrayal of events relevant to the major leaks. For example, in a moment of dramatic tension, the fictitious diplomat, played by Laura Linney, is involved in an attempt to extract a source from Libya. This plotline has clearly been included in the film to provide some human face to the leaks. However, as Robertson points out, it could never have happened in the context of the leaks of the diplomatic cables provided by Chelsea Manning. Manning did not have access to the level of intel ('top' or 'ultra' secret sources which would have placed the 'source' at risk as portrayed in the movie) (see Geoffrey Robertson, Dreaming Too Loud, 2013).

As Robertson states, there is no blood on WikiLeaks hands as a result of the leaks: 'The Fifth Estate will be propaganda if it propagates the lie that Assange has blood on his hands, and that Bradley Manning (who does not appear in the movie, although if 'Cablegate' has a hero, it is he) deserved the severe punishment (thirty-five years in prison) that he received.'

All of this discussion needs to be placed in the context of the mainstream media’s hostility (at worst) or ambivalence (at best) about whistleblowing. Despite the amendment of Australian whistleblowing laws in the Public Interest Disclosure Act 2013 (Cth), the whistleblowing actions of Manning and Snowden would not have been protected under that legislation had they occurred in Australia on the basis that the secrets they revealed (ie in part that the US Government is spying on everyone) is authorised by law.

The importance of these issues cannot be overstated. At a time when we should as a society be considering the consequences of the revelations that our communications, our networks of friends and families, our personal and supposedly private interactions, are considered fair game by democratically elected governments worldwide, we are, instead of interrogating these governments, turning on the whistleblowers. In Australia recently, revelations that Australia had tapped the phones of the Indonesian President and his wife, were met not with questions regarding how and why this was happening, but attacks upon the ABC for reporting on this scandal as it was ‘not news’.

We need to ask the big questions. Manning, Snowden, Assange and others have placed their lives and liberty on the line in order to tell us about the mass surveillance not only possible but occurring world wide, and all we seem to be able to do with this information, is to characterise them as misfits (and either mad or evil ones at that) which somehow saves us from having to deal with the difficult re-examination of ourselves that needs to be done in the wake of the revelations.