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Fair Use logo. Image: Wikimedia

The following post is a response from EFA Board Member Angela Daly to an article by Linda Jaivin, ‘Long story short: Fair Use is theft by any other name’ that was published in the Fairfax media on 31 July 2013.

As an academic researcher working on intellectual property law and policy at the Swinburne Institute for Social Research as well as a board member of digital rights advocacy group Electronic Frontiers Australia, I must take issue with this article due to the author’s flawed understanding of copyright law and its objectives, as well as the ‘fair use’ exception which has been proposed by the Australian Law Reform Commission in its Copyright Inquiry.

As has already been pointed out by Mike Masnick of online tech news blog TechDirt, Ms Jaivin is unwittingly highly ironic in her criticism of ‘fair use’ given her own appropriation of the creativity of others, firstly in the title of her piece which is a reference to dialogue from Shakespeare’s Romeo and Juliet yet remains uncredited as such by Ms Jaivin, and secondly in her reliance on the work of others regarding the Russo-Japanese War, authors who are presumably not compensated by Ms Jaivin when she makes royalties on her own works that use them.

Irony aside, the purpose of copyright law is not to guarantee an eternal and absolute source of income to authors and other rightsholders – indeed, the purpose of copyright and other forms of intellectual property is to stimulate creativity and innovation, for the good of society as a whole, including the government, private sector, educational institutions and individual citizens. Copyright maximalists such as Ms Jaivin do not recognise that in the digital age, where digitised data is abundant, that copyright laws as they stand and a lack of fair use penalise individual users and are an impediment to the dissemination of culture, knowledge and information, thus an attempt to introduce artificial scarcity of data (and the resulting expense) when there is plenty.

In any event, Australia is a net importer of intellectual property, meaning that restrictive, user-unfriendly copyright laws are detrimental to the interests of Australian citizens, who are already paying over the odds for cultural products such as books as well as technological products including software, devices etc. Unless we sort out intellectual property here to include a fair use exception as well as the pricing practices of the multinational corporations, we are not getting a fair deal for Australians.

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