CMOpinion: Can copyright go wrong?

Every marketer is familiar with copyright. Whilst it lacks an official registration system, in Australia, it is the Copyright Act 1968 (Cth) that governs the protection of copyrighted material, be it works (such as literary, dramatic, musical and artistic) or subject matter other than works (such as recordings, film, television and audio). Marketers are likely to be even more familiar with the fair dealing exception, which allows the use of copyright material without the copyright owner’s permission in certain situations. But given fair dealing is considered an abstract concept that can be left to interpretation based on circumstance, changes to how copyright protections and exceptions are applied have become everybody’s business, regardless of jurisdiction.

A case in the United States (US), namely Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith (The Case), has piqued my attention for most of this year. Most recently, on 12 October 2022, the US Court of Appeals for the Second Circuit tried to determine the proper test for whether a work is “transformative” under the fair use doctrine. For those questioning my care factor given I am based in Australia and the two countries’ laws are different — specifically, US copyright law has a general fair use defence to a claim of copyright infringement, and Australia has certain exceptions — my reasons are two-fold. Firstly, as a consequence of international treaties, such as the Berne Convention to which both Australia and the US are party to, most extraterritorial copyright owners are protected in Australia, and Australian copyright owners are protected in most countries. Therefore, we must be mindful of jurisdictional rights especially in a digital world where the internet literally transcends jurisdiction. Secondly, is the potential global precedent. Whilst Australia is not governed by US law, the jurisdictions do learn from each other given their similarities as societies. It is possible the decision in this case is considered in a future Australian court, so yes, it is of interest to me, and should be to you, too. And thirdly, I believe fair use/dealing in the digital age needs to be reimagined for the future.

What is the fair dealing exception?