tag:theconversation.com,2011:/uk/topics/fair-use-28098/articlesFair use – The Conversation2024-01-25T13:18:54Ztag:theconversation.com,2011:article/2217172024-01-25T13:18:54Z2024-01-25T13:18:54ZCould a court really order the destruction of ChatGPT? The New York Times thinks so, and it may be right<figure><img src="https://images.theconversation.com/files/571252/original/file-20240124-29-abie1d.jpg?ixlib=rb-1.1.0&rect=7%2C44%2C4985%2C3196&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Old media, meet new.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/in-this-photo-illustration-the-new-york-times-logo-is-seen-news-photo/1894336797">Idrees Abbas/SOPA Images/LightRocket via Getty Images</a></span></figcaption></figure><p>On Dec. 27, 2023, The New York Times <a href="https://nytco-assets.nytimes.com/2023/12/NYT_Complaint_Dec2023.pdf">filed a lawsuit</a> against OpenAI alleging that the company committed willful copyright infringement through its generative AI tool ChatGPT. The Times claimed both that ChatGPT was unlawfully trained on vast amounts of text from its articles and that ChatGPT’s output contained language directly taken from its articles.</p>
<p>To remedy this, the Times asked for more than just money: It asked a federal court to order the “destruction” of ChatGPT.</p>
<p>If granted, this request would force OpenAI to delete its trained large language models, such as GPT-4, as well as its training data, which would prevent the company from rebuilding its technology. </p>
<p>This prospect is alarming to the <a href="https://www.theverge.com/2023/11/6/23948386/chatgpt-active-user-count-openai-developer-conference">100 million people</a> who use ChatGPT every week. And it raises two questions that interest me as a <a href="https://law.indiana.edu/about/people/details/marinotti-jo%C3%A3o.html">law professor</a>. First, can a federal court actually order the destruction of ChatGPT? And second, if it can, will it?</p>
<h2>Destruction in the court</h2>
<p>The answer to the first question is yes. Under <a href="https://www.law.cornell.edu/uscode/text/17/503">copyright law</a>, courts do have the power to issue destruction orders. </p>
<p>To understand why, consider vinyl records. Their <a href="https://www.theverge.com/2023/3/10/23633605/vinyl-records-surpasses-cd-music-sales-us-riaa">resurging popularity</a> has attracted <a href="https://fortune.com/2023/04/06/punk-rock-fan-uncovers-six-year-scam-that-sold-1-6-million-worth-of-counterfeit-vinyl-records-to-collectors/">counterfeiters who sell pirated records</a>. </p>
<p>If a record label sues a counterfeiter for copyright infringement and wins, what happens to the counterfeiter’s inventory? What happens to the master and stamper disks used to mass-produce the counterfeits, and the machinery used to create those disks in the first place?</p>
<p>To address these questions, copyright law grants courts the power to destroy infringing goods and the equipment used to create them. From the law’s perspective, there’s no legal use for a pirated vinyl record. There’s also no legitimate reason for a counterfeiter to keep a pirated master disk. Letting them keep these items would only enable more lawbreaking.</p>
<p>So in some cases, destruction is the only logical legal solution. And if a court decides ChatGPT is like an infringing good or pirating equipment, it could order that it be destroyed. In its complaint, the Times offered arguments that ChatGPT fits both analogies.</p>
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<figcaption><span class="caption">NBC News reports on The New York Times’ lawsuit.</span></figcaption>
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<p>Copyright law has never been used to destroy AI models, but OpenAI shouldn’t take solace in this fact. The law has been increasingly open to the idea of targeting AI. </p>
<p>Consider the Federal Trade Commission’s recent use of <a href="https://www.jdsupra.com/legalnews/ftc-coppa-settlement-requires-deletion-1217192">algorithmic disgorgement</a> as an example. The FTC has forced companies <a href="https://www.dwt.com/-/media/files/blogs/privacy-and-security-blog/2022/03/weight-watchers-kurbo-stipulated-order.pdf">such as WeightWatchers</a> to delete not only unlawfully collected data but also the algorithms and AI models trained on such data. </p>
<h2>Why ChatGPT will likely live another day</h2>
<p>It seems to be only a matter of time before copyright law is used to order the destruction of AI models and datasets. But I don’t think that’s going to happen in this case. Instead, I see three more likely outcomes.</p>
<p>The first and most straightforward is that the two parties could settle. In the case of a successful settlement, which <a href="https://www.washingtonpost.com/technology/2024/01/04/nyt-ai-copyright-lawsuit-fair-use">may be likely</a>, the lawsuit would be dismissed and no destruction would be ordered.</p>
<p>The second is that the court might side with OpenAI, agreeing that ChatGPT is protected by the copyright doctrine of “<a href="https://www.copyright.gov/fair-use/#:%7E:text=Fair%20use%20is%20a%20legal,protected%20works%20in%20certain%20circumstances.">fair use</a>.” If OpenAI can argue that ChatGPT is transformative and that its service does not provide a substitute for The New York Times’ content, it just might win. </p>
<p>The third possibility is that OpenAI loses but the law saves ChatGPT anyway. Courts can order destruction only if two requirements are met: First, destruction must not prevent lawful activities, and second, it must be “<a href="https://casetext.com/case/hounddog-prods-llc-v-empire-film-grp-inc">the only remedy</a>” that could prevent infringement. </p>
<p>That means OpenAI could save ChatGPT by proving either that ChatGPT has legitimate, noninfringing uses or that destroying it isn’t necessary to prevent further copyright violations. </p>
<p>Both outcomes seem possible, but for the sake of argument, imagine that the first requirement for destruction is met. The court could conclude that, because of the articles in ChatGPT’s training data, all uses infringe on the Times’ copyrights – an argument put forth in <a href="https://copyrightalliance.org/current-ai-copyright-cases-part-1/">various other lawsuits</a> against generative AI companies. </p>
<p>In this scenario, the court would issue an injunction ordering OpenAI to stop infringing on copyrights. Would OpenAI violate this order? Probably not. A single counterfeiter in a shady warehouse might try to get away with that, but that’s less likely with a <a href="https://www.reuters.com/technology/openai-talks-raise-new-funding-100-bln-valuation-bloomberg-news-2023-12-22/">US$100 billion company</a>.</p>
<p>Instead, it might try to retrain its AI models without using articles from the Times, or it might develop other software guardrails to prevent further problems. With these possibilities in mind, OpenAI would likely succeed on the second requirement, and the court wouldn’t order the destruction of ChatGPT. </p>
<p>Given all of these hurdles, I think it’s extremely unlikely that any court would order OpenAI to destroy ChatGPT and its training data. But developers should know that courts do have the power to destroy unlawful AI, and they seem increasingly willing to use it.</p><img src="https://counter.theconversation.com/content/221717/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>João Marinotti does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>It may seem extreme, but there’s a reason the law allows it.João Marinotti, Associate Professor of Law, Indiana UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2111872023-08-09T08:12:22Z2023-08-09T08:12:22ZProsecraft has infuriated authors by using their books without consent – but what does copyright law say?<figure><img src="https://images.theconversation.com/files/541848/original/file-20230809-28-vxamch.png?ixlib=rb-1.1.0&rect=329%2C0%2C3664%2C2000&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Composite image</span> <span class="attribution"><span class="source">Spencer Scott Pugh/Unsplash (main), Possessed/Unsplash (robot)</span></span></figcaption></figure><p>This week, US writer Benji Smith took down his controversial website, Prosecraft, <a href="https://www.avclub.com/prosecraft-ai-books-celeste-ng-controversy-1850715787">roughly a day</a> after a social media storm erupted, with authors – who had just begun to discover the site – furious about their work being used without their consent.</p>
<p>Prosecraft requires an algorithm to crawl through millions of words of text to produce an analysis of the language. It <a href="https://blog.shaxpir.com/taking-down-prosecraft-io-37e189797121">drew on</a> “more than 25,000 books” to allow authors to compare their text to writers they admire. </p>
<p>Prosecraft offered an analysis by highlighting the “vividness” of the prose and providing a statistical analysis of the arrangement of words and phrases, the word count, and a basic rundown of the story arc. Its related site, Shaxpir, offers paid subscriptions.</p>
<p>“I hate to break it to anyone thinking of paying for this kind of service, but there’s a limit to what data can teach you about writing,” <a href="https://twitter.com/pronounced_ing/status/1688559081215197185">said Celeste Ng</a>, who helped spread the word to affected authors including Stephen King, Lauren Groff and Jodi Picoult. </p>
<p>She continued: “you get better at it by reading & writing & thinking more. Not by faux data analysis.”</p>
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<p>Smith believed Prosecraft could help uncover the intricacies of the writing techniques of famous authors that their otherwise dense prose might obscure. His logic is not entirely dissimilar to that of baseball manager Billy Beane in <a href="https://www.goodreads.com/en/book/show/1301">Moneyball</a>: statistical analysis reveals patterns most people miss, or experts only get close to through intuition. </p>
<p>Smith’s Shaxpir site remains up and running. Authors are calling for him to take that down, too. And some, such as <a href="https://twitter.com/V8Sheppard/status/1688719148640321537">Australian author Holden Sheppard</a>, whose young adult novel <a href="https://www.textpublishing.com.au/books/the-brink">The Brink</a> was used by Prosecraft, are asking Smith to “delete the data you mined from us”.</p>
<p>Taking down Prosecraft, Smith <a href="https://blog.shaxpir.com/taking-down-prosecraft-io-37e189797121">posted a statement</a>.</p>
<p>“Since I was only publishing summary statistics, and small snippets from the text of those books, I believed I was honoring the spirit of the <a href="https://www.copyright.gov/help/faq/faq-fairuse.html">Fair Use doctrine</a>, which doesn’t require the consent of the original author,” his statement says. </p>
<p>“Since I never shared the text that I acquired by crawling the internet, I believed that I was in compliance with the relevant laws.”</p>
<p>But what do the relevant laws say?</p>
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Read more:
<a href="https://theconversation.com/explainer-what-is-fair-dealing-and-when-can-you-copy-without-permission-80745">Explainer: what is 'fair dealing' and when can you copy without permission?</a>
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<h2>Shadow libraries: the ‘Achilles heel’ of AI</h2>
<p>By Smith’s own admission, Prosecraft uses more than 25,000 books. None of this would be possible without a “shadow library”: the Achilles’ heel of AI technologies. </p>
<p>A new term in the language of copyright law, “shadow library” has evolved from a growing body of legal disputes between businesses based on artificial intelligence and published human authors.</p>
<p>In copyright terms, the copying of a book so it can be stored in a shadow library is an act of infringement. </p>
<p>The trouble is, it would hardly be worthwhile for an individual author to sue over the copying of their book. Yet, thousands of authors suing the creator of a shadow library is a different question altogether. This is particularly true if the creator of the shadow library is a small business. </p>
<p>Herein lies the point of controversy around copyright law and AI.</p>
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<h2>Copyright depends on human actions</h2>
<p>If a person undertakes the act of copying a book to place it in a shadow library, this amounts to an act of copyright infringement. </p>
<p>However, if the AI technology they have developed then trawls through that shadow library to produce many different forms of language analysis, this is not likely to be an infringement of copyright: almost all the relevant laws contemplate human actions. </p>
<p>The opening line of the infringement provisions of the <a href="https://www.copyright.gov/title17/92chap5.html">US Copyright Act</a> reads, “<strong>Anyone</strong> who violates any of the exclusive rights of the copyright owner …” (Emphasis added.) Further references within section 501 of the US Copyright Act also make the assumption of human action and human agency quite plain.</p>
<p>Australia’s copyright laws operate on a very similar basis.</p>
<p>The point of difference between US and Australian law most likely exists around fair use and fair dealing. Fair use is an open-ended exception where the use of a copyright work is considered against four factors. Among these is the purpose of the use. In contrast, fair dealing is confined to specific purposes: such as parody or satire, reporting the new, and criticism or review. </p>
<p>This is relevant because, while the analysis created by AI might be beyond the remit of copyright law, the decision to display that analysis on a website or to provide it as a service is very much done by a human being. </p>
<p>Therein lies the importance of exceptions to copyright ownership. </p>
<p>The US has the fair use doctrine. Contained within fair use is the principle of “transformative use”. The more the use of a copyrighted work transforms it (rather than outright reproduces it), the more likely it is to be considered fair use. </p>
<p>This logic favours Prosecraft and Shaxpir, even where the analysis displayed on those sites includes snippets of text from other authors. The key issue is that the purpose of the use is very different from that of the original author. Rather than being written to entertain, the snippet and analysis are provided in order to deconstruct technique. </p>
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Read more:
<a href="https://theconversation.com/two-authors-are-suing-openai-for-training-chatgpt-with-their-books-could-they-win-209227">Two authors are suing OpenAI for training ChatGPT with their books. Could they win?</a>
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<h2>‘Transformative use’ and Australian law</h2>
<p>Australia amended its laws after the Australia-US Free Trade Agreement, to mirror some of the principles of US copyright law.</p>
<p>The famous US case of <a href="https://www.copyright.gov/fair-use/summaries/campbell-acuff-1994.pdf">Campbell vs Acuff-Rose</a>, in which 2-Live Crew’s transformative fair use parody of Roy Orbison’s song Pretty Woman established that a commercial parody can qualify as fair use, was no doubt considered.</p>
<p>In amending its laws, Australia legislated that parody or satire could form the basis of a fair dealing exception. A specific transformative use exception was not created. </p>
<p>So, it is significantly less clear as to whether the use contemplated by Prosecraft or Shaxpir would be considered fair dealing in Australia. </p>
<p>Australia has either missed a trick or dodged a bullet by failing to include transformative use as a fair dealing exception. It depends where you stand in the ongoing conflict between AI tech and human authors. But Australia’s laws are less AI-friendly than the US.</p>
<p>For the moment, published human authors are banking on the idea that if they can knock out the shadow library, they can hobble the reach of AI tech. </p>
<p>That might work against a small player such as Smith – but whether it would hold up against a larger commercial enterprise is less clear.</p><img src="https://counter.theconversation.com/content/211187/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Dilan Thampapillai does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Prosecraft creator Benji Smith believed he was honouring copyright laws, while using more than 25,000 books without authors’ consent. What does the law say? A copyright expert explains.Dilan Thampapillai, Associate Professor, University of New South Wales, UNSW SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2092272023-07-06T23:57:55Z2023-07-06T23:57:55ZTwo authors are suing OpenAI for training ChatGPT with their books. Could they win?<figure><img src="https://images.theconversation.com/files/536051/original/file-20230706-20-omw1kb.jpg?ixlib=rb-1.1.0&rect=0%2C0%2C7360%2C4902&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Shutterstock</span>, <a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a></span></figcaption></figure><p>Imagine you read a book. You commit details of the book to memory and ruminate on the ideas contained in it. </p>
<p>Somebody then asks you a question about the book. You provide them with a written response. </p>
<p>Would you be surprised if the author of the book tried to sue you for copyright infringement?</p>
<p>OpenAI is facing exactly this situation.</p>
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<a href="https://images.theconversation.com/files/536054/original/file-20230706-16-j1jo6g.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/536054/original/file-20230706-16-j1jo6g.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/536054/original/file-20230706-16-j1jo6g.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=900&fit=crop&dpr=1 600w, https://images.theconversation.com/files/536054/original/file-20230706-16-j1jo6g.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=900&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/536054/original/file-20230706-16-j1jo6g.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=900&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/536054/original/file-20230706-16-j1jo6g.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1131&fit=crop&dpr=1 754w, https://images.theconversation.com/files/536054/original/file-20230706-16-j1jo6g.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1131&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/536054/original/file-20230706-16-j1jo6g.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1131&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Mona Awad is suing OpenAI.</span>
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<p>Authors Mona Awad (<a href="https://www.bloomsbury.com/au/bunny-9781788545440/">Bunny</a>, <a href="https://www.bloomsbury.com/au/13-ways-of-looking-at-a-fat-girl-9781788549684/">13 Ways of Looking at a Fat Girl</a>) and Paul Tremblay (<a href="https://www.goodreads.com/en/book/show/36381091">The Cabin at the End of the World</a>), <a href="https://www.cnbc.com/2023/07/05/authors-sue-openai-allege-chatgpt-was-trained-on-their-books.html">filed a lawsuit</a> against OpenAI last week, claiming the books were used to train ChatGPT, its artificial intelligence software, without their consent.</p>
<p>It is the first lawsuit against ChatGPT that concerns copyright, The Guardian <a href="https://www.theguardian.com/books/2023/jul/05/authors-file-a-lawsuit-against-openai-for-unlawfully-ingesting-their-books">reported</a>.</p>
<p>The only difference from the scenario I’ve outlined is that instead of a human reading a book, OpenAI is accused of allowing its AI program to copy a book to its internal database and train on it.</p>
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Read more:
<a href="https://theconversation.com/chatgpt-is-confronting-but-humans-have-always-adapted-to-new-technology-ask-the-mesopotamians-who-invented-writing-199184">ChatGPT is confronting, but humans have always adapted to new technology – ask the Mesopotamians, who invented writing</a>
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<h2>What’s the lawsuit’s chance of success?</h2>
<p>OpenAI is a large language model (LLM). These LLMs train on data in the form of written works in order to provide natural language responses to prompts. </p>
<p>The basis of the lawsuit is that OpenAI trained itself on their novels and produced accurate summaries of their works when prompted. </p>
<p>Notably, <a href="https://llmlitigation.com/pdf/03223/tremblay-openai-complaint.pdf">the lawsuit</a> does not specify which specific parts of Awad and Tremblay’s novels have been unlawfully copied and reproduced in the summaries.</p>
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<p>The lawsuit <a href="https://news.bloomberglaw.com/ip-law/openai-facing-another-copyright-suit-over-ai-training-on-novels">alleges</a> OpenAI uses “shadow libraries” that illegally publish thousands of copyrighted works (using torrent systems). Their claim <a href="https://news.bloomberglaw.com/ip-law/openai-facing-another-copyright-suit-over-ai-training-on-novels">is based</a> on a 2020 paper by OpenAI that reveals 15% of their training dataset comes from “two internet-based books corpora.” </p>
<p>But the lawsuit faces some immediate hurdles.</p>
<p>The litigants will need to prove that OpenAI most likely copied their works. They will also need to demonstrate the likelihood of some economic loss. Crucially, copyright protection does not extend to ideas.</p>
<p>Copyright protection is limited to written expression. And though copying something to a database might be an act of infringement, that act alone is unlikely to cause significant harm to the economic interests of the authors.</p>
<p>The real danger is that OpenAI can do some of the things human authors can do.</p>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/replacing-news-editors-with-ai-is-a-worry-for-misinformation-bias-and-accountability-208196">Replacing news editors with AI is a worry for misinformation, bias and accountability</a>
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<h2>How does Australian law apply?</h2>
<p>OpenAI is just the first generation of what this technology looks like. No doubt, many authors (and other creative producers) are starting to wonder what will happen when OpenAI and similar technologies evolve. </p>
<p><a href="https://www.britannica.com/technology/Moores-law">Moore’s Law</a>, a calculation that estimates the capacity of digital technology doubles roughly every two years, suggests the rate of this development might be exponential.</p>
<p>What would happen if a similar claim was raised in Australia? Would <a href="https://theconversation.com/explainer-what-is-fair-dealing-and-when-can-you-copy-without-permission-80745">our fair dealing laws</a> step in and protect the development of technology – or would our law side with the authors?</p>
<p>The United States has the doctrine of fair use in its copyright laws. </p>
<p>In the past, fair use has been used to draw a balance between new technologies and established copyright interests. The Sony video cassette recorder case is a famous example. </p>
<p>In the Sony case, a majority of the US Supreme Court permitted homeowners to record their favourite television shows and watch them later, so long as they didn’t keep the recordings. (By comparison, Australia didn’t <a href="http://www8.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/num_act/caa2006213/sch6.html">legalise this</a> until 2006.)</p>
<p>Fair use also allowed the rap group 2-Live Crew to radically <a href="https://www.youtube.com/watch?v=65GQ70Rf_8Y">rework and parody</a> Roy Orbison’s song Pretty Woman. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/536057/original/file-20230706-21-6ho7f4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/536057/original/file-20230706-21-6ho7f4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/536057/original/file-20230706-21-6ho7f4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/536057/original/file-20230706-21-6ho7f4.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/536057/original/file-20230706-21-6ho7f4.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/536057/original/file-20230706-21-6ho7f4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/536057/original/file-20230706-21-6ho7f4.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/536057/original/file-20230706-21-6ho7f4.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The Sony case, in which the US Supreme Court allowed homeowners to record shows from the television, is a famous example of fair use adapting to technology.</span>
<span class="attribution"><span class="source">Cottonbro Studio/Pexels</span>, <a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a></span>
</figcaption>
</figure>
<p>Australia has effectively put the essence of some fair use decisions into its <a href="https://www.legislation.gov.au/Details/C2019C00042">Copyright Act</a>. The Australian Copyright Act contains provisions on time-shifting and fair dealing for parody. </p>
<p>Yet, Australia has repeatedly declined to house fair use within its law. </p>
<p>Instead, we rely upon its unwieldy cousin, known as the doctrine of fair dealing.
A claim like the one Mona Awad and Paul Tremblay are making against OpenAI would likely fail in Australia. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/explainer-what-is-fair-dealing-and-when-can-you-copy-without-permission-80745">Explainer: what is 'fair dealing' and when can you copy without permission?</a>
</strong>
</em>
</p>
<hr>
<h2>Ideas are not protected</h2>
<p>Like the United States, Australian law protects tangible expression, but not ideas. People need to be free to use ideas in subsequent works.</p>
<p>Much the same logic should apply to large-language models such as OpenAI. </p>
<p>And a formidable barrier emerges in the bedrock ideas of copyright law. </p>
<p>Copyright was conceived and refined in an era when writing and copying were done by human beings. This means the fundamental concepts within the law relating to subsistence (proving a work’s continued existence), infringement and exceptions are human-centric.</p>
<p>This is quite a mountain to climb in any copyright litigation. If a human actor has not committed an act of infringement, it might be hard to find another human liable – even though an author might feel aggrieved.</p>
<p>Nevertheless, the base problem is that Australian law does not house an open-ended legal rule like fair use, which can draw a fine balance between technology and authors. </p>
<p>And we are yet to have the policy debate here about how we will manage the looming conflict between rapidly advancing technologies and authors who depend on their writing for their livelihoods. </p>
<p>The OpenAI litigation might well fail. But it is just the first salvo in a major AI-driven groundshift in copyright.</p><img src="https://counter.theconversation.com/content/209227/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Dilan Thampapillai does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Mona Awad and Paul Tremblay’s lawsuit claims their books were used without their consent. But copyright protection doesn’t apply to ideas – they’ll need to demonstrate the likelihood of economic loss.Dilan Thampapillai, Associate Professor, University of New South Wales, UNSW SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1906392022-10-26T12:28:49Z2022-10-26T12:28:49ZThe future of creative freedom is on the line, starring Andy Warhol, Prince and 2 Live Crew<figure><img src="https://images.theconversation.com/files/491478/original/file-20221024-21322-w6xqi7.png?ixlib=rb-1.1.0&rect=5%2C22%2C691%2C932&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Fair Use says it is OK to use this image because this is a commentary on it. Right?</span> <span class="attribution"><a class="source" href="https://www.supremecourt.gov/DocketPDF/21/21-869/227689/20220610142915753_2022-06-10%20No.%2021-869%20AWF%20Brief%20for%20Petitioner%20with%20addendum.pdf#page=33">U.S. Supreme Court</a></span></figcaption></figure><p>The internet has opened access to culture. <a href="https://www.weforum.org/agenda/2019/09/chart-of-the-day-how-many-websites-are-there/">Billions of webpages</a> build on the art, images, music, film, television and writing of the past. </p>
<p>This explosion of content leads to tough questions over ownership of creative work and exclusivity of use. The highest court in the land may soon try to better define the limits of free use, or <a href="https://ia903406.us.archive.org/11/items/LawrenceLessigRemix/Remix-o.pdf">the right to remix</a> previously published work.</p>
<p>On Oct. 12, 2022, the U.S. Supreme Court heard <a href="https://www.c-span.org/video/?523315-1/supreme-court-hears-copyright-case-andy-warhols-prince-prints">oral arguments</a> in <a href="https://www.oyez.org/cases/2022/21-869">Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith</a>. The case addresses when artists or writers may quote from and comment on others’ works. While quotation in everyday speech usually refers only to text, as a legal matter, <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3119041">paintings, photographs and architectural forms are also subject to quotation</a>.</p>
<p>In 1984, Warhol created 16 variations of a portrait of the singer Prince based on a photograph taken by Lynn Goldsmith. For a payment of US$400, <a href="https://www.supremecourt.gov/DocketPDF/21/21-869/213328/20220204140247759_AWF%20v.%20Goldsmith%20-%20Brief%20in%20Opposition.pdf">Goldsmith granted Warhol permission</a> to use the photograph to make a sketch or painting to illustrate a Vanity Fair article on the success of Prince’s recording “Purple Rain.” The license allowed no other uses. </p>
<p>The foundation now owns the paintings, prints and sketches Warhol made of the photograph, and profits handsomely selling them to <a href="https://www.hollywoodreporter.com/business/business-news/supreme-court-weighs-andy-warhol-prince-lawsuit-1235240095/">museums</a> and licensing them to others. </p>
<p>My <a href="https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=496059">research</a> often deals with how the right to express oneself can be harmed by narrow interpretations of the law. I focus on the <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1025474">First Amendment</a>, which guarantees free speech, and the <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2589650">fair use privilege</a>, which moderates the effect of copyright law on artists and writers by allowing a certain amount of copying.</p>
<p>In the Goldsmith case, <a href="http://www.supremecourt.gov/DocketPDF/21/21-869/232977/20220808150341382_Goldsmith%20Brief%20for%20Respondents%20-%20Final.pdf">the Court is being asked</a> to correct what I think is an important error in copyright case law – the <a href="https://scholar.google.com/scholar_case?case=15758460119711775481&q=%22Affirmative+evidence+relating%22+markets+%22fair+use%22+%22fourth+factor%22+%22satire%22&hl=en&as_sdt=40006">assumption</a> that deriving any value from another’s copyrighted work is an infringement that is automatically “unfair” unless one can meet <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=944048">the difficult burden</a> of proving the use has no impact on the value of the original. </p>
<p>Intellectual property <a href="https://thehill.com/policy/technology/67997-ccia-report-fair-use-generates-4-7-trillion-in-revenue/">shapes the international economy</a>. The U.S. market has an outsized effect on creators around the world. So the way that the Supreme Court defines fair use affects everyone from journalists and politicians to musicians, photographers and streamers in the U.S. and abroad.</p>
<h2>Future of fair use is technical</h2>
<p>Enforcement of copyright in the digital world takes many forms.</p>
<p>The rise of file <a href="https://scholar.google.com/scholar_case?case=11327801397939418854&q=%2Baudiblemagic&hl=en&as_sdt=40006">fingerprinting</a> and <a href="https://books.google.com/books?id=e2a5DwAAQBAJ&pg=PT410&dq=%22false+positives%22+algorithms+kulk&hl=en&newbks=1&newbks_redir=0&sa=X&ved=2ahUKEwif29npl-D6AhU_ZzABHdg8B70Q6AF6BAgHEAI">filtering algorithms</a> means online creators face an often relentless barrage of threats when attempting to quote other creators’ works. These can take the form of <a href="https://support.google.com/youtube/answer/2814000?hl=en">copyright strikes</a>, which can lead to account suspension and termination, and <a href="https://www.techtarget.com/searchcontentmanagement/definition/take-down-request">takedown requests</a>. <a href="https://air.io/en/youtube/youtube-demonetization-how-to-continue-making-money-from-your-channel">Channel demonetization</a> happens when YouTube blocks a creator’s ability to make money by refusing to share advertising revenue. These techniques result in works being deleted from websites without a trial or much in the way of due process.</p>
<p>YouTube itself and other platforms like Facebook, where images and videos can be shared, might have been banned all along had <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=925127">the Supreme Court not clarified</a> in the 1980s that new technologies that have a mix of lawful and copyright-violating uses are not necessarily illegal.</p>
<p>The Court also issued a <a href="https://www.oyez.org/cases/1993/92-1292">double-edged ruling</a> on fair use nearly three decades ago in a case involving the rap group 2 Live Crew’s “<a href="https://www.youtube.com/watch?v=QAFDTNJFkus">Pretty Woman</a>” which spoofs a Roy Orbison song. While helpfully clarifying that parodies and harsh attacks on copyrighted works can be a fair use, many legal observers, including me, feel that the <a href="https://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?article=1966&context=facpubs">opinion undermined</a> the text and intentions behind fair use. Specifically, it required that fair users vary their “meaning or message” starkly from the original work, and <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=944048">imposed a difficult burden of proof</a> upon them.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/490905/original/file-20221020-19-uy5hht.jpg?ixlib=rb-1.1.0&rect=516%2C17%2C2043%2C1544&q=45&auto=format&w=1000&fit=clip"><img alt="Two young Black men wearing hats stand back to back on a stage." src="https://images.theconversation.com/files/490905/original/file-20221020-19-uy5hht.jpg?ixlib=rb-1.1.0&rect=516%2C17%2C2043%2C1544&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/490905/original/file-20221020-19-uy5hht.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/490905/original/file-20221020-19-uy5hht.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/490905/original/file-20221020-19-uy5hht.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/490905/original/file-20221020-19-uy5hht.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/490905/original/file-20221020-19-uy5hht.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/490905/original/file-20221020-19-uy5hht.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">2 Live Crew’s parody of ‘Pretty Woman’ helped define U.S. law around fair use.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/live-crew-during-1990-mtv-vmas-rehearsal-at-universal-news-photo/111168176?adppopup=true">Photo by Jeff Kravitz/FilmMagic, Inc</a></span>
</figcaption>
</figure>
<p>Fast-forward to arguments made before the Court in October 2022. The lower court <a href="https://scholar.google.com/scholar_case?case=7970767190766207698&q=warhol+foundation&hl=en&as_sdt=40006">judgment</a> being reviewed by the Supreme Court concluded that because Warhol’s modified print of a photograph of Prince looked similar to and derived value from the photographer’s original version, it was a copyright infringement. The court saw it as infringing on the photographer’s rights despite Warhol’s intention to place the photograph into <a href="http://www.supremecourt.gov/DocketPDF/21/21-869/228371/20220617165623115_21-869%20Andy%20Warhol%20Foundation%20v%20Goldsmith%20Brief%20of%20Amici%20Curiae%20in%20Support%20of%20Petitioner.pdf">a new artistic context</a> as a comment on celebrity culture – as his 1962 <a href="https://www.moma.org/calendar/exhibitions/1517?installation_image_index=12">soup can</a> and <a href="https://www.nga.gov/collection/art-object-page.72039.html">Marilyn Monroe</a> works did.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/490919/original/file-20221020-16-89xbg6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A toddler in a red coat walks by a display of colorful variations of a Marilyn Monroe portrait" src="https://images.theconversation.com/files/490919/original/file-20221020-16-89xbg6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/490919/original/file-20221020-16-89xbg6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=429&fit=crop&dpr=1 600w, https://images.theconversation.com/files/490919/original/file-20221020-16-89xbg6.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=429&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/490919/original/file-20221020-16-89xbg6.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=429&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/490919/original/file-20221020-16-89xbg6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=540&fit=crop&dpr=1 754w, https://images.theconversation.com/files/490919/original/file-20221020-16-89xbg6.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=540&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/490919/original/file-20221020-16-89xbg6.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=540&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Andy Warhol’s portraits of Marilyn Monroe have themselves been parodied countless times.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/portraits-of-marilyn-monroe-by-andy-warhol-on-show-at-news-photo/828334498?adppopup=true">Stefan Rousseau/PA Images via Getty Images)</a></span>
</figcaption>
</figure>
<p>Other federal courts had ruled that a subsequent creation deriving value from and sharing the message of a previous work is unlikely to be a fair use. This presumption applied even if an initial work’s textual or audiovisual components are altered in major ways by the new work, whether it is a <a href="https://scholar.google.com/scholar_case?case=12801604581154452950&q=nation+enterprises&hl=en&as_sdt=40006">news report</a> on a book, a remix of <a href="https://scholar.google.com/scholar_case?case=7470881599858389103&q=comicmix&hl=en&as_sdt=40006">comic book characters</a> or song lyrics, a guide to a <a href="https://scholar.google.com/scholar_case?case=13852164224811081270&q=carol+publishing+group&hl=en&as_sdt=40006">film</a> or <a href="https://scholar.google.com/scholar_case?case=16356117916964453773&q=carol+publishing+group&hl=en&as_sdt=40006">television</a> series, or a new <a href="https://scholar.google.com/scholar_case?case=10948823384535046136&q=%22fair+use%22+%2Bnukem&hl=en&as_sdt=40006">level of a video game</a>. </p>
<p>Judges and justices who opposed this trend argued that the First Amendment was being <a href="https://scholar.google.com/scholar_case?case=12801604581154452950&q=nation+enterprises&hl=en&as_sdt=40006">trampled</a> and that fair use <a href="https://scholar.google.com/scholar_case?case=1847543716100356974&q=+dissenting+%22fair+use%22&hl=en&as_sdt=6,44">was</a> <a href="https://scholar.google.com/scholar_case?case=8898801401385912084&q=new+era+884&hl=en&as_sdt=6,44">endangered</a>.</p>
<p>The <a href="http://www.supremecourt.gov/DocketPDF/21/21-869/237248/20220907142051010_2022-09-07%20No.%2021-869%20Petitioner%20Andy%20Warhol%20Foundation%20Reply%20Brief.pdf">Warhol Foundation argues</a> that fair use may exist in diverse circumstances ranging from postmodern art to showing corporate logos in films, displaying street art in music videos and making unauthorized use of photographs in newspapers. The argument gained traction among the Supreme Court’s justices, with <a href="https://www.reuters.com/world/us/us-supreme-court-hears-arguments-andy-warhol-copyright-dispute-2022-10-12/">several</a><a href="https://www.c-span.org/video/?c5035831/user-clip-that">suggesting</a> during their questioning that artists and other Americans should be able to shed new light on existing images and words, and not simply as parodies or critiques.</p>
<p>My research has traced how a particular brand of economics and a set of sociological assumptions have distorted the free speech right to engage in fair use expression. In place of an older <a href="https://books.google.com/books?id=_PtsDwAAQBAJ&pg=PA131&dq=%22fair+use%22+%22stowe+v+thomas%22&hl=en&newbks=1&newbks_redir=0&sa=X&ved=2ahUKEwjNptrcn-D6AhUiQzABHZBeA4sQ6AF6BAgGEAI#v=onepage&q=%22fair%20use%22%20%22stowe%20v%20thomas%22&f=false">libertarian system that permitted</a> authors to put text and characters from prior authors’ work into new creations, 20th century courts developed what I consider to be a <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2589650">restrictive and arbitrary</a> standard that quotations must serve different meanings and purposes. This departs from <a href="http://www.supremecourt.gov/DocketPDF/21/21-869/233262/20220811123634479_42707%20pdf%20Menell.pdf">the language and intentions</a> behind the Copyright Act of 1976, which refers to “comment” on existing works as being potentially fair, in addition to <a href="https://scholar.google.com/scholar_case?case=16686162998040575773&q=acuff+rose&hl=en&as_sdt=40006#r%5B16%5D">criticism or ridicule</a>.</p>
<p>However the court rules, fair use will continue to be with us. As law professor Lawrence Lessig <a href="https://books.google.com/books?id=2lZQAAAAMAAJ&q=%22media+industries+weren%E2%80%99t+successful+%22&dq=%22media+industries+weren%E2%80%99t+successful+%22&hl=en&newbks=1&newbks_redir=0&sa=X&ved=2ahUKEwiM8aPuoeD6AhWaVzABHSk7DjMQ6AF6BAgHEAI">once observed</a>, people inevitably imitate the tales and images or music that they admire or grew up with. That impulse will be impossible “to kill it off once the public has tasted the freedom to create and share what they create with others via the web,” Lessig wrote. </p>
<p>A decision from the court is expected in May or June 2023. With the justices’ questioning bringing out serious problems with the lower court ruling, a resolution in favor of subsequent artists’ rights could help writers and filmmakers as well. It will help decide whether a few unlucky creators will be hit with large judgments, and millions more creators will be deterred from expressing themselves or may have their work automatically filtered by faceless censors.</p><img src="https://counter.theconversation.com/content/190639/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Hannibal Travis does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Is it unfair to make money from works that borrow from copyrighted work?Hannibal Travis, Professor of Law, Florida International UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1353782020-04-03T18:01:11Z2020-04-03T18:01:11ZBlue dye from red beets – chemists devise a new pigment option<figure><img src="https://images.theconversation.com/files/324753/original/file-20200401-23143-1032w4i.jpg?ixlib=rb-1.1.0&rect=233%2C170%2C1715%2C1386&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Through the wonders of chemistry, molecules can be rearranged to completely transform color.</span> <span class="attribution"><span class="source">Erick Leite Bastos</span>, <a class="license" href="http://creativecommons.org/licenses/by-sa/4.0/">CC BY-SA</a></span></figcaption></figure><p>What’s your favorite color? If you answered blue, you’re in good company. <a href="https://today.yougov.com/topics/lifestyle/articles-reports/2015/05/12/why-blue-worlds-favorite-color">Blue outranks all other color preferences</a> worldwide by a large margin.</p>
<p>No matter how much people enjoy looking at it, blue is a difficult color to harness from nature. As a chemist who <a href="https://www.bastoslab.com/">studies the modification of natural products</a> to solve technological problems, I realized there was a need for a safe, nontoxic, cost-effective blue dye. So my Ph.D. student, Barbara Freitas-Dörr, and I devised a <a href="https://advances.sciencemag.org/content/6/14/eaaz0421">method to convert the pigments of red beets into a blue compound</a> that can be used in a wide range of applications. We call it BeetBlue.</p>
<h2>Natural sources of blue</h2>
<p>Blue is strongly associated with nature, largely because it is reflected in the sky and on bodies of water. But compared to other colors, blue pigments are not commonly found in living organisms.</p>
<p>The feathers of many birds are blue, not because they produce a pigment, but because the microscopic structure of their <a href="https://en.wikipedia.org/wiki/Structural_coloration">feathers is able to filter light</a>. This physical phenomenon is very interesting but difficult to adopt for common applications.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/324747/original/file-20200401-23130-yhy2og.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/324747/original/file-20200401-23130-yhy2og.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/324747/original/file-20200401-23130-yhy2og.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/324747/original/file-20200401-23130-yhy2og.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/324747/original/file-20200401-23130-yhy2og.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/324747/original/file-20200401-23130-yhy2og.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=502&fit=crop&dpr=1 754w, https://images.theconversation.com/files/324747/original/file-20200401-23130-yhy2og.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=502&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/324747/original/file-20200401-23130-yhy2og.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=502&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The <em>Lactarius indigo</em> mushroom is one of Mother Nature’s rare examples of blue.</span>
<span class="attribution"><a class="source" href="https://de.wikipedia.org/wiki/Datei:2013-08-06_Lactarius_indigo_(Schwein.)_Fr_359786.jpg">Alan Rockerfeller/Mushroom Observer</a>, <a class="license" href="http://creativecommons.org/licenses/by-sa/4.0/">CC BY-SA</a></span>
</figcaption>
</figure>
<p>Plants seldom produce blue hues. When they do, their pigments rarely remain stable after extraction. The same is true for blue mushrooms like the indigo milky cap and other species that develop a blue stain when disturbed. </p>
<h2>Turning red into blue</h2>
<p>You might wonder how something red can be turned into something blue. One approach is to change the way its molecules absorb and reflect light.</p>
<p>The white light coming from your lamp contains a rainbow of colors, even though you cannot see them – without the use of a prism, that is. The surface of your red chair looks red because, at the molecular level, it is absorbing all the colors except red, which is reflected and eventually reaches your eyes.</p>
<p>The color of your chair would change from red to blue if you modified the molecular structure of its dye, making it reflect blue light instead of red. The secret is in the number of carbon atoms in the dye and how they are connected to each other. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/325053/original/file-20200402-74889-mrhg0p.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/325053/original/file-20200402-74889-mrhg0p.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/325053/original/file-20200402-74889-mrhg0p.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=148&fit=crop&dpr=1 600w, https://images.theconversation.com/files/325053/original/file-20200402-74889-mrhg0p.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=148&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/325053/original/file-20200402-74889-mrhg0p.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=148&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/325053/original/file-20200402-74889-mrhg0p.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=185&fit=crop&dpr=1 754w, https://images.theconversation.com/files/325053/original/file-20200402-74889-mrhg0p.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=185&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/325053/original/file-20200402-74889-mrhg0p.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=185&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">By changing the structure of molecular compounds, you can alter color.</span>
<span class="attribution"><span class="source">Erick Leite Bastos</span>, <a class="license" href="http://creativecommons.org/licenses/by-sa/4.0/">CC BY-SA</a></span>
</figcaption>
</figure>
<p>Beets produce chemical compounds called betalains, which are natural pigments and antioxidants. The chemical structure of betalains can be modified to produce almost any hue. We realized that if we increased the number of alternating single-double bonds in betalain molecules, we could change their color from orange or magenta to blue.</p>
<p>Making blue dye with adequate intensity and light-fastness is difficult because it must absorb yellow and orange light efficiently. Solving this problem required lots of molecular tweaking.</p>
<p>My lab has been working with betalains for over 10 years to understand their function in nature and their unique chemical features, so it took only one experiment to produce BeetBlue. (It took more than two years to optimize the process, though.) </p>
<p>We broke apart the betalain molecules using alkaline water with a pH of 11. Then we mixed the resulting compound, called betalamic acid, with a commercial chemical compound called 2,4-dimethylpyrrole in an open vessel at room temperature. BeetBlue is formed almost instantly. </p>
<figure>
<iframe width="440" height="260" src="https://www.youtube.com/embed/FUS95BYqJ24?wmode=transparent&start=0" frameborder="0" allowfullscreen=""></iframe>
<figcaption><span class="caption">BeetBlue is created in a beaker at room temperature.</span></figcaption>
</figure>
<p>Because we changed the characteristic carbon-nitrogen chemical bond of betalains into a carbon-carbon bond, BeetBlue is a new class of pseudo-natural dyes we call quasibetalains.</p>
<h2>Color your life blue</h2>
<p>The chemical synthesis of BeetBlue is fast and very simple. In fact, it is so simple that anyone can do it if all the chemicals are available.</p>
<p>BeetBlue dissolves easily in water and other solvents, maintains its color in acidic and neutral solutions, and may provide an alternative to expensive blue colorants that often <a href="https://en.wikipedia.org/wiki/List_of_inorganic_pigments#Blue_pigments">contain toxic metals</a>, which limit the scope of their applications. </p>
<p>Live zebrafish embryos as well as cultured human cells were not affected by BeetBlue. Although more experiments are necessary to make sure it is safe for human consumption, maybe you can dye your hair, customize your clothes or color your food in the future using a dye made from beets.</p>
<p>This work shows the importance of basic science for the development of technological applications. We did not patent BeetBlue. We want people to use it freely and understand, by interacting with nature in a different and sustainable way, the future can be bright. </p>
<p>[<em>Insight, in your inbox each day.</em> <a href="https://theconversation.com/us/newsletters?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=insight">You can get it with The Conversation’s email newsletter</a>.]</p><img src="https://counter.theconversation.com/content/135378/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Erick Leite Bastos receives funding from the São Paulo Research Foundation (FAPESP), the Brazilian National Council for Scientific and Technological Development (CNPq), and the Coordenação de Aperfeiçoamento de Pessoal de Nível Superior (CAPES).</span></em></p>A simple chemical reaction turns the red pigment of beets into a new, nontoxic blue dye.Erick Leite Bastos, Associate Professor of Chemistry, Universidade de São Paulo (USP)Licensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1284182019-12-15T08:03:43Z2019-12-15T08:03:43ZMaking sense of South Africa’s new copyright bill and US trade threats<figure><img src="https://images.theconversation.com/files/306092/original/file-20191210-95111-199xhpe.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Shutterstock</span></span></figcaption></figure><p><em>The <a href="https://ustr.gov">Office of the US Trade Representative</a> has announced a review of South Africa’s eligibility for <a href="https://ustr.gov/about-us/policy-offices/press-office/press-releases/2019/october/ustr-announces-gsp-enforcement#">Generalised System of Preferences</a> benefits. The office took the step after <a href="https://www.bloomberg.com/profile/company/0608492D:US">it was petitioned</a> by the <a href="https://iipa.org">International Intellectual Property Alliance</a>, a private sector coalition representing large US entertainment companies. At issue is South Africa’s <a href="https://pmg.org.za/bill/705/">Copyright Amendment Bill</a>, which has been waiting for the South African president’s <a href="https://www.businesslive.co.za/bd/national/2019-07-24-contentious-copyright-amendment-bill-being-mulled-by-presidency/">signature</a> for eight months. Charl Blignaut asked Professor Sean Flynn and lawyer Jonathan Band to explain the issues.</em></p>
<hr>
<p><strong>What is the Generalised System of Preferences and how does it work?</strong></p>
<p>These programmes give extra tariff reductions to developing countries as a development tool. </p>
<p>The US programme eliminates duties on 3,500 products when imported from one of <a href="https://ustr.gov/issue-areas/trade-development/preference-programs/generalized-system-preference-gsp">119 designated beneficiary countries</a> and territories, including South Africa. </p>
<p><strong>What normally happens in situations like this?</strong></p>
<p>The trade representative <a href="https://www.federalregister.gov/documents/2019/11/19/2019-24947/generalized-system-of-preferences-gsp-notice-regarding-a-hearing-for-country-practice-reviews-of">has announced </a> that its next Generalised System of Preferences benefits review hearing will take place on 30 January 2020. </p>
<p>Normally the formal process is a small part of what happens diplomatically. </p>
<p>South Africa’s <a href="https://nationalgovernment.co.za/units/management/46/department-of-trade-industry-and-competition-the-dtic">trade, industry and competition minister</a>, Ebrahim Patel, met the US trade representative recently in Washington DC. The US has also called for a delegation to visit South Africa before the benefits decision is made.</p>
<p>Behind the scenes, the trade representative is likely to threaten South Africa’s benefits if the president doesn’t agree to send the copyright bill back to parliament and adopt changes that the US entertainment industry is demanding. </p>
<p>The primary complaint about the bill involves its <a href="https://libguides.wits.ac.za/Copyright_and_Related_Issues/fairuse_fairdealing">fair use</a> clause – which is modelled on US law. That and rights to use excerpts in education – which exist in nearly every developing country. The complaints also involve the proposed extensions of protections for local creators. This includes rights to royalties, limitations on unfair contracts, and reversion of all copyright assignments to creators after 25 years.</p>
<p><strong>Is this unfair bullying on the part of the US?</strong></p>
<p>Sanctioning South Africa by removing benefits because it doesn’t make changes to the bill would likely <a href="http://infojustice.org/archives/41858">violate the World Trade Organisation rules</a>. The organisation’s <a href="https://www.wto.org/english/tratop_e/devel_e/dev_special_differential_provisions_e.htm">Generalised System of Preferences enabling clause</a> requires that programme criteria be “generalised”, “non-reciprocal” and based on the development interests of the grantee, not the grantor. The World Trade Organisation requires all disputes under its agreements to be resolved under its own dispute settlement understanding. </p>
<p>If the US removed benefits from South Africa to meet its own industry interests, and not based on criteria reflected in multilateral standards, South Africa could challenge the action. Likewise, the US would violate the World Trade Organisation rules by claiming a violation of the organisation’s rules on intellectual property without bringing those complaints to the organisation itself.</p>
<p><strong>Has South Africa been reviewed before? What happened?</strong></p>
<p>In 2015 the Office of the US Trade Representative reviewed South Africa’s quota on imports of US poultry. It threatened to end Generalised System of Preferences benefits if the quota wasn’t lifted. South Africa entered negotiations and <a href="https://www.thedti.gov.za/delegationspeechdetail.jsp?id=3361">agreed to change the quota</a>.</p>
<p><strong>What happened in the fight to secure cheaper generic drugs? And it is related?</strong></p>
<p>The last time the US threatened to remove these benefits from South Africa for an intellectual property issue was in the midst of the AIDS crisis. </p>
<p>South Africa moved to allow “parallel importation” of cheaper versions of medicines from other countries and US pharmaceutical companies complained. The US government applied pressure on South Africa to change its law. It used the kinds of private meetings and threats to benefits that are being used now.</p>
<p>Treatment access advocates mobilised protests that pressured the US to back down. The result was an <a href="https://www.govinfo.gov/content/pkg/FR-2000-05-12/pdf/00-12177.pdf">executive order</a>, which is still in effect, that bans the use of trade pressure on African countries to restrict access to AIDS medications.</p>
<p>In both cases, US trade pressure followed South Africa taking advantage of flexibility in international treaties to adopt intellectual property policies to promote local production and access to essential goods and services. Then the issue was medicine. Now the issue is knowledge and creativity. </p>
<p><strong>What can South Africa do to prevent being taken off the preferential list?</strong></p>
<p>We understand that in the past the US government has given the South African government detailed lists of the changes it wants made in the Copyright Amendment Bill. To foster analysis and debate, the demands of the US should be publicly released. </p>
<p><strong>Has this happened to other countries over their intellectual property regimes?</strong></p>
<p>In 2012, the trade representative initiated a <a href="https://ustr.gov/about-us/policy-offices/press-office/press-releases/2019/october/ustr-announces-gsp-enforcement">Generalised System of Preferences review</a> of Ukraine for its regulation of collective management organisations – an issue not governed by the World Trade Organisation or any multilateral treaty. Ukraine passed new legislation on the issue and this year benefits were partially restored. </p>
<p>The US also <a href="https://ustr.gov/sites/default/files/Section%20301%20FINAL.PDF">sanctioned China</a> for its intellectual property policies, including technology transfer requirements.</p>
<p>In each case, the US actions appear to be World Trade Organisation violations because the policies at issue either did not violate any international norm or, to the extent they did, were not challenged in the organisation. </p>
<p><strong>Can this cause the South African president to send the bill back to parliament?</strong></p>
<p>The US complaints in themselves are not a constitutional basis for returning the bill to parliament, as described in one <a href="https://www.re-createza.org/legal-opinion-on-the-bill">legal opinion</a> sent to the president. </p>
<p>According to section 79 of South Africa’s constitution, the president</p>
<blockquote>
<p>must either assent to and sign a Bill, … or, if the President has reservations about the constitutionality of the Bill, refer it back to the National Assembly for reconsideration.</p>
</blockquote>
<p>This means that he can only send the bill back to parliament for reservations about its constitutionality. None of the <a href="https://www.businessinsider.co.za/us-trade-representative-to-review-sa-on-generalized-system-of-preferences-over-copyright-2019-10">complaints</a> by the International Intellectual Property Alliance involve a constitutional issue.</p>
<p><em>Sean Flynn is Director, Program on Information Justice and Intellectual Property, American University Washington College of Law. Jonathan Band is counsel to the Library Copyright Alliance and an adjunct professor at the Georgetown University Law Center</em></p><img src="https://counter.theconversation.com/content/128418/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Sean Flynn receives research funding from the Open Society Foundations for work on fair use rights in copyright law around the world. He is the Director of the Program on Information Justice and Intellectual Property, a think tank and academic program of the American University Washington College of Law.
Jonathan Band is an attorney in private practice in the United States whose clients include the Library Copyright Alliance and the Computers and Communications Industry Association. </span></em></p>The United States may violate the World Trade Organisation rules if it punishes South Africa for adopting a new copyright bill, explain two US trade experts.Sean Michael Fiil-Flynn, Law Professor, American UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1070982018-11-25T09:16:51Z2018-11-25T09:16:51ZWhy ‘fair use’ is so important for South African copyright law<figure><img src="https://images.theconversation.com/files/246411/original/file-20181120-161612-yi2pvr.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">South Africa seeks to amend its outdated copyright legislation.
</span> <span class="attribution"><span class="source">Shutterstock</span></span></figcaption></figure><p>“Fair use” is a doctrine <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2333863">adopted by some countries</a> that permits the use of copyright material like books, journals, music and art work – without requiring permission from the copyright holder. It provides a balance between the just demands of rights-holders and the need for people to use copyright material for education, research, in libraries and archives.</p>
<p>The reuse of copyright material is done within a framework of four criteria. These determine whether the proposed use is fair or not. If the user complies with these, they may go ahead and use the copyright work without permission from the rights-holder.</p>
<p>In the US, which entrenched the doctrine in its law in 1976, fair use has served citizens well. It has enabled the country’s creative industries <a href="https://www.ccianet.org/wp-content/uploads/2017/06/Fair-Use-in-the-U.S.-Economy-2017.pdf">to grow exponentially</a> – so much so that the US <a href="https://www.trade.gov/topmarkets/pdf/Top%20Markets%20Media%20and%20Entertinment%202017.pdf">boasts</a> the largest and most successful filmed entertainment, music, book publishing, and video games in the world. </p>
<p>Despite these gains, “fair use” has <a href="http://www.samro.org.za/news/articles/copyright-alliance-petitions-parliament-over-proposed-new-law">its naysayers</a>. Now the debate has come to South Africa, as the country seeks to amend its outdated copyright legislation.</p>
<p>The country’s Copyright Amendment Bill has been redrafted several times since 2015. It has been discussed and debated over the past 15 months by the Parliamentary Portfolio Committee on Trade and Industry. In its latest draft, the Bill outlines several fair use provisions and exceptions for the educational, research and library sectors. </p>
<p>These have been largely <a href="https://www.businesslive.co.za/bd/opinion/2017-08-04-fears-of-fair-use-law-being-used-to-rip-off-rights-holders-are-unfounded/">welcomed</a> in the higher education space and formally supported by many international and local organisations, institutions, teacher unions, NGOs, various creators, and libraries and archives. That’s because fair use provisions will facilitate better access to information and resource-sharing, along with other benefits like allowing accessible formats for persons with disabilities.</p>
<p>There’s also been fierce opposition to these provisions. Groups that object to the proposed changes would prefer to maintain what’s known as “<a href="https://libguides.wits.ac.za/c.php?g=145347&p=953446">fair dealing</a>” as the status quo. This is a legal doctrine that allows for an express, finite (closed) list of uses of copyright material without permission from the copyright holder. It’s far more restrictive in application than “fair use”.</p>
<p>The problem is that the status quo is outdated. Entrenching fair use in South African copyright law is a way to ensure the country steps firmly into the present and, ultimately, is able to move into the future. Fair use is “future-proof”. The US, for instance, has not needed to change its fair use provisions since 1976. That’s because the provisions already cater for new technologies, artificial intelligence and new developments that arise out of the fast-advancing fourth industrial revolution.</p>
<p>South Africa’s copyright law must not continue to ignore fair use.</p>
<h2>Not a piracy tool</h2>
<p>Several arguments have been levelled against fair use in South Africa and other parts of the world.</p>
<p>First, it’s been suggested that fair use offers carte blanche for infringing copyright owners’ rights. Some argue that, for instance, a university could buy one copy of a prescribed book and make copies for thousands of students, without compensating the author. But that’s not fair use; that’s copyright infringement, and it’s expressly forbidden according to the framework that governs fair use.</p>
<p>This framework consists of four criteria, which explore the following issues:</p>
<ul>
<li><p>the purpose and character of use</p></li>
<li><p>the nature of the copyrighted work</p></li>
<li><p>the amount and sustainability of the portion used; and,</p></li>
<li><p>the effect upon the rights-holder’s potential market.</p></li>
</ul>
<p>This framework allows copyright users to assess whether their reproduction, reuse or remixing of copyright works is lawful or not. </p>
<p>Some have also argued that fair use is in conflict with the <a href="http://www.wipo.int/treaties/en/ip/berne/">Berne Convention</a>, an international agreement governing copyright that’s been in use for more than a century. That’s not the case. If it was, the US and other countries that have fair use in their copyright laws would have faced challenges by now under the Dispute Settlement Mechanism at the World Intellectual Property Organisation or other international forums that deal with copyright matters.</p>
<p>Fair use is a positive tool for users and producers of information, as it facilitates access and reuse of copyright works for various purposes, including creativity and innovation, without infringing copyright law. </p>
<p>As US Judge Pierre N. Leval <a href="http://www.pijip.org/wp-content/uploads/2015/11/103HarvLRev.pdf">puts it</a>:</p>
<blockquote>
<p>Fair use is not a grudgingly tolerated exception to the copyright owner’s rights of private property, but a fundamental policy of the copyright law. The stimulation of creative thought and authorship for the benefit of society depends assuredly on the protection of the author’s monopoly. But it depends equally on the recognition that the monopoly must have limits.</p>
</blockquote>
<h2>A “foreign” idea?</h2>
<p>Another <a href="http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S2225-71602016000100008">argument</a> that’s been levelled against fair use specifically in South Africa is that the country will be importing a “foreign” copyright regime into its national legislation.</p>
<p>South African laws have been based on or influenced by foreign legislation for centuries. Why would adopting this piece of law – which works in the US and a number of other countries – be any different? In fact, the current “fair dealing” provisions are inherited from British colonial legislation, which makes them equally “foreign”.</p>
<p>South Africa is part of the global community. It cannot ignore legislative developments in other countries, particularly those that will bring them in line with global best practice.</p>
<h2>What is the next step?</h2>
<p>The latest draft of the Bill was approved by the parliamentary committee in November 2018. Next, it is due to go before the National Assembly, and possibly the National Council for Provinces, for further debate.</p>
<p>Hopefully this ongoing debate will encourage better, stronger fair use conditions rather than leaving South Africa far behind, and will ensure that the country has a fair and progressive Copyright Amendment Act in the near future.</p><img src="https://counter.theconversation.com/content/107098/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Denise Rosemary Nicholson does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>South Africa’s copyright law must not continue ignoring the principles of fair use.Denise Rosemary Nicholson, Scholarly Communications Librarian, University of the WitwatersrandLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/807452017-07-16T19:56:06Z2017-07-16T19:56:06ZExplainer: what is ‘fair dealing’ and when can you copy without permission?<figure><img src="https://images.theconversation.com/files/177991/original/file-20170713-19649-1bw3nuh.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Fair dealing allows Australians to use copyrighted content for news and reporting.</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/television-broadcast-gallery-125283539?src=xDn2ZJz5-3d3tBIfYGrXOQ-1-2">antb/Shutterstock</a></span></figcaption></figure><p>Copyright law sometimes allows you to use someone else’s work - as long as it’s fair. In Australia this is called <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/">“fair dealing”</a>, and it’s different to the law in the US, which is called <a href="https://www.copyright.gov/title17/92chap1.html#106">“fair use”</a>. </p>
<p>These exceptions are safety valves in copyright law – they allow lots of beneficial uses that society has agreed copyright owners should not be able to charge for, or worse, prevent.</p>
<p>There’s a serious ongoing debate about whether Australia should update its copyright laws and introduce fair use. The current law is not easy to understand – <a href="https://www.youtube.com/watch?v=x2Wc5H4tNTA">our research</a> shows that Australian creators are often confused about their rights – and many think we already have fair use.</p>
<h2>Fair dealing: What <em>can</em> you do in Australia?</h2>
<p>The key difference between “fair use” and “fair dealing” is that Australia’s “fair dealing” laws set out defined categories of acceptable uses. As we will see, “fair use” in the US is much more flexible.</p>
<p>Australian copyright law sets out five situations where use of copyrighted material without permission may be allowed:</p>
<ul>
<li>research or study</li>
<li>criticism or review</li>
<li>parody or satire</li>
<li>reporting the news</li>
<li>provision of legal advice.</li>
</ul>
<p>We’ll explain the first four, as they’re most useful to the average Australian.</p>
<h3>Research or study</h3>
<p>You do not need permission to copy a reasonable portion of copyrighted material if you are studying it or using it for research. You do not have to be enrolled in school or a university course to rely on the research or study exception. </p>
<p>For example:</p>
<ul>
<li>you can make a copy of a chapter of a book to study it</li>
<li>you can print or take screenshots of content you find on the web for your research</li>
<li>you can include quotes or extracts of other work when you publish your research.</li>
</ul>
<p>The main thing to watch out for is how much you copy. It’s fair to photocopy a book chapter but not the whole book.</p>
<h3>Criticism or review</h3>
<p>It is lawful to use a work without permission in order to critique or review it. </p>
<p>Criticism or review involves making an analysis or judgement of the material or its underlying ideas. It may be expressed in an entertaining way, or with strong opinion, and does not need to be a balanced expression to be fair. </p>
<p>For example, a film critic does not need permission to play a short clip from a film they are reviewing. They may also use film clips from other movies to compare or contrast.</p>
<figure>
<iframe width="440" height="260" src="https://www.youtube.com/embed/6OEQ0d8_oXw?wmode=transparent&start=0" frameborder="0" allowfullscreen=""></iframe>
<figcaption><span class="caption">Ozzy Man Reviews runs a popular channel that reviews existing material, relying on the fair dealing exceptions.</span></figcaption>
</figure>
<p>It’s also legal to quote an excerpt of a book or song lyrics, or to reference a photograph in another publication as part of a review or critique of the work.</p>
<p>You need to be really critiquing your source material. So, for example, a review video that is really just the highlights of a film or show probably won’t be fair. </p>
<p>This is something that tripped up Channel 10 in its clip show, The Panel. When the panellists discussed and critiqued the clips they showed, it was generally fair dealing. But when they just showed clips that were funny, a court <a href="https://eprints.qut.edu.au/30780/">found them liable for copyright infringement</a>.</p>
<h3>Reporting the news</h3>
<p>You don’t need permission to use existing copyrighted material while reporting on current or historic events. The law is designed to ensure that people can’t use copyright to stifle the flow of information on matters of public interest.</p>
<p>The key issue to check here is whether a work has been used in a way that is necessary to report the news. If the material is just used incidentally, to illustrate a story or provide entertainment, it won’t count as fair dealing.</p>
<h3>Parody or satire</h3>
<p>It is legal to use another person’s copyrighted material without their permission to make fun of them, or to make fun of another person or issue.</p>
<p>Making something funny is not sufficient to rely on this exception. The use must be part of some commentary (express or implied) on the material or some broader aspect of society. </p>
<figure>
<iframe width="440" height="260" src="https://www.youtube.com/embed/ihrRSnkvFNw?wmode=transparent&start=0" frameborder="0" allowfullscreen=""></iframe>
<figcaption><span class="caption">FriendlyJordies is known for his satirical videos that comment on and criticise politics and everyday life in Australia.</span></figcaption>
</figure>
<h2>When is a use ‘fair’?</h2>
<p>Fair dealing only applies when the use is “fair”.</p>
<p>When assessing fairness in Australia, there are a number of relevant considerations, including:</p>
<ul>
<li>how important copying is to your work (“nature and purpose of the use”)</li>
<li>the type of work being copied (less original works may not be protected as strongly as more creative works)</li>
<li>whether it is easily possible to get a licence within a reasonable time at an ordinary commercial price</li>
<li>the effect of your copying on the potential market for the original</li>
<li>the amount taken from the original work</li>
<li>whether attribution has been given to the original author. </li>
</ul>
<p>Generally, a use will be fair if you are copying for a valid reason, you don’t copy more than you need, you give attribution where possible, and your work is not directly competing in the market against the original.</p>
<p>Things to remember:</p>
<ul>
<li><strong>Is copying necessary?</strong> Copying has to be necessary for one of the purposes above. This means that it might be fair to copy part of a song to review it, but it won’t be fair if you’re just using the song as background music.</li>
<li><strong>Copy no more than you need.</strong> Sometimes you need to copy the entirety of an existing work – if you’re critiquing a photograph, for example. Usually, though, you should only copy the parts that are necessary. You can’t get away with showing a whole TV episode in order to critique one scene.</li>
<li><strong>It’s usually not fair if you’re competing with the original.</strong> This is often the most important factor. When you copy existing material for your own study, to report on the news, or to create a parody, you usually won’t be undercutting the market for the original. But if you’re just repackaging the original material in a way that might substitute for it – a consumer might be satisfied with your work <em>instead</em> of the original – then your use probably won’t be fair.</li>
</ul>
<h2>How is ‘fair use’ different – what <em>can’t</em> you do with fair dealing?</h2>
<p>In the United States, <a href="https://www.copyright.gov/title17/92chap1.html">the law</a> is more flexible, because it can adapt to allow fair use for purposes that lawmakers hadn’t thought of in advance.</p>
<p>Some of the things that are legal without getting permission in the US but not in Australia include:</p>
<p><strong>Adapting to new technologies</strong>: Fair use is flexible enough to adapt to change, but fair dealing is not. For example, in the US, fair use made it legal to use a VCR to record television at home in 1984. In Australia, this wasn’t legal until parliament created <a href="http://www.austlii.edu.au/au/legis/cth/num_act/caa2006213/sch6.html">a specific exception in 2006</a> – just about the time VCRs <a href="https://www.youtube.com/watch?v=RhDR1I4DpTo">became obsolete</a>.</p>
<p><strong>Artistic use</strong>: In Australia, it’s legal to create a parody or a critique, but not to use existing works for purely artistic purposes. For example, Australian law makes it largely unlawful for a collage artist to reuse existing copyright material to create something new.</p>
<figure>
<iframe width="440" height="260" src="https://www.youtube.com/embed/9N8IpxO6rKs?wmode=transparent&start=0" frameborder="0" allowfullscreen=""></iframe>
<figcaption><span class="caption">Machinima uses game environments to create new stories – but is not legal in Australia without permission from the game’s publisher.</span></figcaption>
</figure>
<p><strong>Uses that document our experiences</strong>: Media forms a big part of our lives, and when we share our daily experiences, we will often include copyright material in some way. Without fair use, even capturing a poster on a wall behind you when you take a selfie could infringe copyright. </p>
<p>In a famous example, Stephanie Lenz originally had an adorable 29-second clip of her baby dancing to a Prince song <a href="http://blog.jipel.law.nyu.edu/2017/03/stephanie-lenz-the-dancing-baby-and-the-changing-landscape-of-fair-use-on-youtube/">removed from YouTube</a>, due to her use of the song. She was able to get it put back up under US fair use law – but an Australian wouldn’t have that right.</p>
<figure>
<iframe width="440" height="260" src="https://www.youtube.com/embed/N1KfJHFWlhQ?wmode=transparent&start=0" frameborder="0" allowfullscreen=""></iframe>
<figcaption><span class="caption">Stephanie Lenz’s “dancing baby” video is legal under US “fair use”, but would likely infringe copyright in Australia.</span></figcaption>
</figure>
<p><strong>Technical and non-consumptive uses:</strong> The internet we love today is built on fair use. When search engines crawl the web, making a copy of every page they can in order to help us find relevant information, they’re relying on fair use. </p>
<p>Under Australian law, even forwarding an email without permission could be an infringement of copyright.</p>
<h2>The copyright reform debate</h2>
<p>Two recent government reports, from the <a href="https://www.alrc.gov.au/publications/4-case-fair-use-australia/arguments-favour-fair-use-australia">Australian Law Reform Commission</a> and the <a href="http://www.pc.gov.au/inquiries/completed/intellectual-property#report">Productivity Commission</a>, have recommended that Australia simplify its copyright law by introducing fair use. </p>
<p>Many of <a href="https://theconversation.com/the-only-way-to-fix-copyright-is-to-make-it-fair-23402">us</a> <a href="https://theconversation.com/why-australians-should-back-turnbull-in-the-stoush-over-copyright-30198">copyright</a> <a href="https://theconversation.com/its-time-to-future-proof-australias-copyright-laws-for-the-21st-century-58785">academics</a> <a href="https://theconversation.com/australian-copyright-laws-have-questionable-benefits-77178">have</a> <a href="https://theconversation.com/productivity-commission-re-ignites-copyright-wars-by-recommending-fair-use-70708">written</a> <a href="https://theconversation.com/stop-the-pirates-behind-brandis-copyright-crusade-25819">here</a> <a href="https://theconversation.com/australian-copyright-reform-stuck-in-an-infinite-loop-52974">extensively</a> <a href="https://theconversation.com/productivity-commissions-recommendations-on-ip-reform-likely-to-be-lost-in-election-haze-58576">in</a> support of fair use over the past few years, but there are still <a href="http://cmsimpact.org/fair-use-blog/fair-use-myths-debunked-australia/">many myths</a> about what the law would do. </p>
<p>It’s been suggested that introducing fair use here would provoke a “free for all” use of copyrighted work, but that hasn’t happened in the US. In fact, some of the same major studios <a href="https://www.alrc.gov.au/publications/4-case-fair-use-australia/arguments-against-fair-use-australia#_ftn115">that oppose</a> fair use in Australia are at pains to point out that they support fair use in the US because it is vital to commercial production that happens there. </p>
<p>The Motion Picture Association of America, for example, <a href="http://www.mpaa.org/mpaa-and-fair-use-a-quick-history/">says that</a> “Our members rely on the fair use doctrine every day when producing their movies and television shows”.</p>
<p>To put it simply: we don’t think that fair use will harm creators. </p>
<p>The “fair” in fair use means that it’s not about ripping off creators – it mainly allows uses that are not harmful. But we do think that fair use would provide an important benefit for ordinary Australians – both creators and users. </p>
<p><em><a href="https://www.linkedin.com/in/katherinegough/">Katherine Gough</a>, a musician and law student at Queensland University of Technology, co-authored this article.</em></p><img src="https://counter.theconversation.com/content/80745/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Nicolas Suzor is the recipient of an Australian Research Council DECRA Fellowship (project number DE160101542) and receives other project funding from the ARC. He also leads projects funded by industry groups, including the Australian Communications Consumer Action Network (ACCAN) and the Australian Digital Alliance. Nic is also the Legal Lead of the Creative Commons Australia project and the deputy chair of Digital Rights Watch, an Australian non-profit organisation whose mission is to ensure that Australian citizens are equipped, empowered and enabled to uphold their digital rights.</span></em></p>When can you use someone else’s copyright work without their permission? We explain ‘fair dealing’ and ‘fair use’ law in a handy guide.Nicolas Suzor, Associate professor, Queensland University of TechnologyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/771782017-05-22T06:24:40Z2017-05-22T06:24:40ZAustralian copyright laws have questionable benefits<p>As the Australian Copyright Agency comes under pressure for <a href="http://www.smh.com.au/federal-politics/political-news/copyright-agency-diverts-funds-meant-for-authors-to-15m-fighting-fund-20170420-gvol0w.html">appearing to use member royalties to enshrine self-serving copyright laws</a>, it’s time to question the purpose of copyright. Some argue current laws ensure artists are fairly paid and make more local content. The evidence doesn’t support this idea.</p>
<p>Copyright is primarily concerned with creative works.</p>
<p>Exploitation of copyright occurs when the author of a creative work excludes all others from reproducing or otherwise using their work for up to 70 years after their death, unless they, the authors, agree to authorise any such use (i.e. pay a fee or a royalty under voluntary or compulsory licences).</p>
<p>On the <a href="https://www.theguardian.com/business/2009/nov/23/musicindustry-law">pro-copyright</a> side, we have the global movie and music industry, many IP lawyers and prominent authors. </p>
<p>Opposing copyright, we have <a href="https://carlsonschool.umn.edu/faculty/joel-waldfogel">academics</a>, <a href="http://www.epip2015.org/waldfogel-and-org-economists/">economists</a> and other <a href="http://www.pc.gov.au/inquiries/completed/intellectual-property#report">public policy analysts</a>. </p>
<h2>Does copyright encourage more creative work?</h2>
<p>The intention of copyright laws is <a href="http://www.copyright.org.au/acc_prod/ACC/Home/ACC/Home.aspx?hkey=24823bbe-5416-41b0-b9b1-0f5f6672fc31">to encourage people to create cultural products</a> such as books, songs, movies and fine art etc. The argument goes that if the authors of these works (or their owners) can charge royalties to those who enjoy these works, then more people will decide to work as authors. </p>
<p>The author gets an income and can therefore spend more time creating works.</p>
<p>However, there are strong arguments that copyright may have gone too far. Royalties only go to a small amount of people, and they mostly prop up the incomes of “rent seekers”. Rent seeking is when income from copyright just makes existing creators wealthier and does not encourage more people to become creators.</p>
<p>The contra-copyright group see <a href="http://www.pc.gov.au/__data/assets/pdf_file/0008/194651/sub064a-intellectual-property.pdf">some</a> <a href="http://www.pc.gov.au/__data/assets/pdf_file/0006/195009/sub108-intellectual-property.pdf">advantage</a> from copyright lasting a few decades, but not the current system, which grants copyright for life plus 70 years after death (there are some exceptions). </p>
<p>Royalties should not be paid beyond the point at which the income stream has an effect on decisions to create more now. Existing copyright laws (which can give control for over 100 years) are merely lining the pockets of movie houses and the heirs of dead authors, without having any effect on the current group of artists.</p>
<h2>Australian culture will falter without copyright</h2>
<p>The <a href="http://www.pc.gov.au/__data/assets/pdf_file/0005/194351/sub010-intellectual-property.pdf">next argument in favour of copyright</a> is that the true value of copyright is the ability for the owner to control the use of their work through licensing. </p>
<p>Given the ubiquity of the internet, it is now very easy to copy works and local authors will not be able to make a living from their work. </p>
<p>Hence, any time or effort they put into creations will be in their spare time after working elsewhere. Enabling authors to receive some royalties goes some way towards providing them with independent income.</p>
<p>But the contra-copyright group <a href="http://www.journals.uchicago.edu/doi/full/10.1086/663157">say</a> the fact that most royalties go to very few authors, or <a href="http://www.swinburne.edu.au/media/swinburneeduau/research/research-centres/cti/reports/thomson-webster-trade-in-ideas-march-2014.pdf">go overseas</a> to the big music and movies houses and publishers, means copyright does little for emerging and local artists. </p>
<p>In fact, the best way to encourage the local cultural sector might be to offer stipends or grants directly to local artists. </p>
<p>It is not to use copyright to overcharge the ordinary householder; prosecute those who illegally download movies; or to waste the time of students and school teachers filling in royalty forms.</p>
<h2>A right to control your creation?</h2>
<p>Another <a href="http://www.pc.gov.au/__data/assets/pdf_file/0018/200925/subdr343-intellectual-property.pdf">pro-copyright argument</a> is that copyright is needed to ensure authors are credited for, and control, their work. This is also known as “<a href="https://www.copyright.com.au/about-copyright/moral-rights/">moral rights</a>”, and creates the obligation to attribute creators and treat their work with respect.</p>
<p>But we could question whether this is the role of copyright. Gifting moral rights does not necessarily mean the artist should be able to decide who can read or watch his or her work for the purpose of genuine enjoyment.</p>
<h2>Authors should be paid for their contribution to society</h2>
<p>The <a href="http://www.pc.gov.au/__data/assets/pdf_file/0018/200925/subdr343-intellectual-property.pdf">pro-copyright group</a> claim that royalties are justified on fairness grounds. People should be rewarded according to their contribution to society and as royalties are linked to use (reading or watching), it is a clever way to link contributions. </p>
<p>However, in terms of value to society, a case can be made that primary school teachers, civil engineers or surgeons should be paid more. And as copyright only delivers a living wage to very few artists, we can question whether the current laws are a fair system.</p>
<h2>Fair use</h2>
<p>The <a href="http://www.pc.gov.au/inquiries/completed/intellectual-property#report">Productivity Commission</a> recently agreed with the Australian government to reform the education statutory licensing scheme, but commented that this decision was missing a recommendation to move to a “fair use” system of copyright exceptions. </p>
<p><a href="https://www.alrc.gov.au/publications/6-new-fair-dealing-exception/differences-between-new-fair-dealing-and-fair-use">Fair use</a> allows for certain circumstances where people can use copyrighted material without the copyright holder’s permission.</p>
<p>Australia does not have a fair use exception. It only has a more limited “fair dealing” exception which means we can only avoid permission for uses that are on a list. </p>
<p>A fair use system would allow users such as schools and universities to use works in some situations without paying any royalties. Maybe, we should limit copyright to 20 years and increase our stipends to local artists instead.</p><img src="https://counter.theconversation.com/content/77178/count.gif" alt="The Conversation" width="1" height="1" />
<h4 class="border">Disclosure</h4><p class="fine-print"><em><span>Beth Webster receives funding from the ARC, Commonwealth and Victorian Governments. She is currently president of the European Policy for Intellectual Property association.</span></em></p>It’s questionable whether current copyright laws actually support artists or more local content.Beth Webster, Director, Centre for Transformative Innovation, Swinburne University of TechnologyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/707082016-12-21T04:45:08Z2016-12-21T04:45:08ZProductivity Commission re-ignites copyright wars by recommending ‘fair use’<figure><img src="https://images.theconversation.com/files/151194/original/image-20161221-14185-1hnnk4g.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">They're still often more expensive overseas than in Australia.</span> <span class="attribution"><span class="source">HelMet-kirjasto/Flickr</span>, <a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a></span></figcaption></figure><p>The Australian Government has <a href="http://www.smh.com.au/federal-politics/political-news/intellectual-property-copyright-rules-make-us-break-the-law-80-times-a-day-says-productivity-commission-20161220-gtf6i0.html">just released</a> the Productivity Commission’s <a href="http://www.pc.gov.au/inquiries/completed/intellectual-property#report">report into Australia’s Intellectual Property Arrangements</a>.</p>
<p>It’s a move that appears to have been designed to avoid some of the controversy of the copyright wars by releasing the report just before most Australians settle into their summer break.</p>
<p>The report does something that is very difficult in copyright debates: it sets out a rigorous, evidence-based case for reform. <a href="https://www.qut.edu.au/news/news?news-id=112876">Academics have praised</a> the “independent and systematic study that has assessed the effectiveness, efficiency, adaptability and accountability of Australia’s IP [intellectual property] laws”. </p>
<p>Good evidence about how well intellectual property laws are working is sometimes hard to come by. <a href="https://theconversation.com/au/topics/intellectual-property-1149">Intellectual property</a> laws, including <a href="https://theconversation.com/au/topics/copyright-1766">copyright</a> and <a href="https://theconversation.com/au/topics/patents-5861">patent</a> law, have to be very carefully calibrated. If they are too weak, it is difficult for investors to recoup their expenses in bringing new inventions, books, music and films to the market. </p>
<p>But when intellectual property laws are too strong, they restrict innovation and access to knowledge. They prevent people from making new inventions and creating new works, because access to existing materials becomes too expensive or difficult. </p>
<p>For consumers, they can make access to knowledge and culture much more expensive, and they can <a href="https://www.universitiesaustralia.edu.au/Media-and-Events/submissions-and-reports/Productivity-Commission-s-Draft-Report-on-Intellectual-Property-Arrangements/Productivity-Commission-s-Draft-Report#.WFnmGVN97Gg">get in the way of education</a> and <a href="https://www.alrc.gov.au/publications/16-access-people-disability/introduction">the legitimate needs of disadvantaged members of society</a>.</p>
<p>Scholars have pointed out for many years that the optimal balance between protection and access to knowledge is <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2024588">extremely difficult to pinpoint</a>. As a result, intellectual property policy is a <a href="https://global.oup.com/academic/product/moral-panics-and-the-copyright-wars-9780195385649?cc=au&lang=en&">deeply controversial</a> and emotional political arena. In the past, decisions about IP policy have been made on the basis of <a href="http://repository.law.umich.edu/books/1/">heavy corporate lobbying</a>, <a href="https://eprints.qut.edu.au/85010/">gut-instinct, hunch and guesswork</a>. </p>
<p>The Productivity Commission’s report is important because it reviews the available evidence and provides recommendations that we have good reason to think will improve Australia’s intellectual property laws. </p>
<p>After reviewing the evidence, the Productivity Commission’s view is that copyright law is not balanced, and that our laws:</p>
<blockquote>
<p>[…] are skewed too far in favour of copyright owners to the detriment of consumers and intermediate users.</p>
</blockquote>
<h2>Making Australian copyright law ‘fair’</h2>
<p>Probably the most significant – and controversial – recommendation is that Australia should introduce a “<a href="http://fairuse.stanford.edu/overview/fair-use/what-is-fair-use/">fair use</a>” exception for copyright infringement. </p>
<p>Fair use allows people to use copyright material in ways that are fair, without asking for permission first. It has been extremely important in the United States for many different industries. </p>
<p>Filmmakers <a href="http://cmsimpact.org/code/documentary-filmmakers-statement-of-best-practices-in-fair-use/">use it to make documentaries</a>, libraries use it to <a href="http://lj.libraryjournal.com/2015/10/copyright/u-s-appeals-court-rules-google-book-scanning-is-fair-use/#_">digitise and preserve their collections</a>, scholars use it for important data- and text-mining research, and search engines use it to index the web.</p>
<p>The Productivity Commission’s report is just the latest in a <a href="http://www.austlii.edu.au/au/other/clrc/4.html">string</a> of <a href="http://www.alrc.gov.au/publications/copyright-report-122">reports</a> to recommend that Australia introduce a fair use exception. It found that Australia’s current exceptions to copyright:</p>
<blockquote>
<p>[…] are too narrow and prescriptive, do not reflect the way people today consume and use content, and do not readily accommodate new legitimate uses of copyright material.</p>
</blockquote>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/151200/original/image-20161221-14179-nswyng.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/151200/original/image-20161221-14179-nswyng.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/151200/original/image-20161221-14179-nswyng.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=399&fit=crop&dpr=1 600w, https://images.theconversation.com/files/151200/original/image-20161221-14179-nswyng.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=399&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/151200/original/image-20161221-14179-nswyng.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=399&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/151200/original/image-20161221-14179-nswyng.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=501&fit=crop&dpr=1 754w, https://images.theconversation.com/files/151200/original/image-20161221-14179-nswyng.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=501&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/151200/original/image-20161221-14179-nswyng.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=501&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Balancing intellectual property laws is a thrilling challenge.</span>
<span class="attribution"><span class="source">J Mark Bertrand/Flickr</span>, <a class="license" href="http://creativecommons.org/licenses/by-nc-nd/4.0/">CC BY-NC-ND</a></span>
</figcaption>
</figure>
<h2>Other recommendations</h2>
<p>The report is detailed and comprehensive, and covers a lot of ground. The Productivity Commission recommended a raft of other changes to modernise Australia’s copyright laws, including:</p>
<ul>
<li><p>preventing copyright owners from overriding consumer rights through restrictive contractual agreements</p></li>
<li><p>allowing Australian consumers to break digital locks on content that prevent lawful activities (like <a href="https://www.wired.com/2015/04/dmca-ownership-john-deere/">fixing a tractor</a>)</p></li>
<li><p><a href="https://www.youtube.com/watch?v=XnvXIuqpiwk">fixing a decade-long oversight</a> in our “safe harbour” regime that makes it extremely difficult for home-grown equivalents of YouTube or social media platforms to host content in Australia</p></li>
<li><p>clarify the law to ensure Australian consumers can <a href="http://www.techly.com.au/2014/01/30/using-vpn-access-blocked-content-illegal/">use VPNs to access content lawfully available in other countries</a></p></li>
<li><p>ensure that the results of publicly funded research are made freely available to the public under <a href="https://theconversation.com/free-for-all-arc-funded-research-now-open-to-the-public-11497">Open Access policies</a></p></li>
<li><p>remove an exception from competition law that allows software and content companies to create exclusive deals and other restrictive licensing agreements that would otherwise be anti-competitive.</p></li>
</ul>
<h2>Restarting the copyright wars</h2>
<p>The timing of this report seems to be designed to minimise some of the controversy that it will generate. The commission’s report warns that it will be extremely difficult to “pursue change in the face of strong vested interests”.</p>
<p>The <a href="http://copyright.com.au/2016/12/productivity-commissions-recommendations-attack-australian-creators/">Copyright Agency</a>, the Australasian Performing Right Association and the Australasian Mechanical Copyright Owners Society (<a href="http://apraamcos.com.au/news/2016/december/the-productivity-commission-has-lost-its-way-on-ip-policy/">APRA AMCOS</a>), <a href="http://prwire.com.au/pr/64931/book-industry-calls-on-government-to-write-off-productivity-commission-report">prominent players in the book industry</a> and several authors have all issued statements that are highly critical of the commission’s report. </p>
<p>Their essential concern is that the expansion of user rights will result in reductions in revenues and investment in Australian creative industries and Australian creators.</p>
<p>The great difficulty here is that copyright law is extremely complex, and the debate is so emotive that the details often get lost in the heated arguments. What little empirical evidence we do have to guide policy is glossed over in a strong reaction against change.</p>
<p>The reaction of the established copyright industries is understandable. It has been very difficult for publishers and distributors to adapt to the internet, and they are only now beginning to develop business models that work in the digital age. The process has been painful to say the least.</p>
<p>In this context, many publishers, distributors, and creators feel besieged by efforts to reform copyright law for the digital age. But it is too late now to go back to a pre-digital world. </p>
<p>The restrictions on <a href="https://theconversation.com/au/topics/parallel-imports-22913">parallel importation</a>, which have kept prices high for books in Australia, are a good example of laws that just don’t work for digital markets. If we expect consumers to obey copyright rules, it is clear that we need to work to make sure that the law and business models <a href="https://theconversation.com/the-only-way-to-fix-copyright-is-to-make-it-fair-23402">treat them fairly</a>.</p>
<p>The great shame about the copyright wars is that sensible, evidence-based proposals for reform get mixed up with highly emotive reactions to “piracy”. The proposals by the Productivity Commission are careful and well justified. The evidence we have is that they are not likely to harm the actual revenues of Australian creators. </p>
<p>There is no doubt that we need new business models – and <a href="https://theconversation.com/why-cash-and-copyright-are-bad-news-for-creativity-34696">public funding</a> – to <a href="https://theconversation.com/harpers-competition-review-is-good-news-for-netflix-consumers-32092">support creators in the digital age</a>. This is the hard work of real practical change that needs to happen to enable our creative industries to thrive. </p>
<p>The good news is that overseas examples show that it is possible for creators to make money in the digital economy. The Productivity Commission’s recommendations are <a href="https://theconversation.com/why-australians-should-back-turnbull-in-the-stoush-over-copyright-30198">a bet that digital is the future</a>, and that making Australia’s laws more efficient and effective is critical to the health of our future industries. </p>
<p>We’re looking forward to the government’s plans to implement these recommendations, but it looks like 2017 will be a heated year for copyright debates.</p><img src="https://counter.theconversation.com/content/70708/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Nicolas Suzor is the recipient of an Australian Research Council DECRA Fellowship (project number DE160101542) and receives other project funding from the ARC. He also leads projects funded by industry groups, including the Australian Communications Consumer Action Network (ACCAN) and the Australian Digital Alliance. Nic is also the Legal Lead of the Creative Commons Australia project and the deputy chair of Digital Rights Watch, an Australian non-profit organisation whose mission is to ensure that Australian citizens are equipped, empowered and enabled to uphold their digital rights.
</span></em></p><p class="fine-print"><em><span>Shereen Parvez does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The copyright wars are set to continue, with the government releasing a Productivity Commission report arguing for a relaxation of intellectual property laws.Nicolas Suzor, Associate professor, Queensland University of TechnologyShereen Parvez, Graduate Research Fellow, Intellectual Property & Innovation Law Research Program, Queensland University of TechnologyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/604182016-06-06T01:21:54Z2016-06-06T01:21:54ZGoogle wins in court, and so does losing party Oracle<figure><img src="https://images.theconversation.com/files/125183/original/image-20160603-11620-15adj3n.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Everybody wins!</span> <span class="attribution"><a class="source" href="http://www.shutterstock.com/pic-402095701/stock-vector-gold-trophy-cup-of-winner-in-two-hands-illustration.html">Trophy and hands via shutterstock.com</a></span></figcaption></figure><p>Oracle <a href="http://arstechnica.com/tech-policy/2016/05/google-wins-trial-against-oracle-as-jury-finds-android-is-fair-use/">recently lost its attempt</a> to use patent and copyright law to force Google to pay US$9 billion for using parts of its Java computer language. Nine billion dollars isn’t chump change, not even for Google, but despite the verdict against Oracle, I’d say Google is not the only winner.</p>
<p>The dispute between the two internet giants was <a href="http://arstechnica.com/tech-policy/2016/05/how-oracle-made-its-case-against-google-in-pictures/">whether Google had needed Oracle’s permission to use computer code</a> called the Java API. The API, and therefore the legal issue, relates to some pretty technical details about how computer programs work – how the instructions programmers write are followed on different hardware devices and different software operating systems.</p>
<p>The outcome of the case, decided in parts by a judge, an appeals court and a jury, was that Google’s use of computer code didn’t violate Oracle’s patents, and that Oracle could copyright its code. However, the jury found that Google’s use did not violate the copyright restrictions because it significantly expanded on the existing copyrighted materials, an exception in law called “<a href="http://www.copyright.gov/fair-use/">fair use</a>.”</p>
<p>It is not only a victory for Google, which has done nothing wrong and need not pay Oracle any money. Programmers remain allowed to use a very popular programming language without fear of crippling legal penalties – which in turn benefits the public, who use <a href="https://github.com/trending/java">apps and websites made with Java</a>. And while technically the legal loser, Oracle also won in a way, because it will benefit from Java’s continued popularity.</p>
<h2>What’s an API?</h2>
<p>To understand the heart of the dispute, we first need to grasp what an Application Programming Interface (API) is and what it does for programmers. At its simplest, an API defines the specific details of how a program interacts with a computer’s operating system and the underlying hardware.</p>
<p>Computer manufacturers use a <a href="http://www.makeuseof.com/tag/whats-inside-your-computer-the-story-of-every-component-you-need-to-know-3/">wide range of specific components</a>: hard drives and memory storage units with different sizes, faster or slower processing chips, smaller and larger screens. They also choose <a href="http://www.computerworld.com/article/3050931/microsoft-windows/windows-comes-up-third-in-os-clash-two-years-early.html">different operating systems</a>, such as Windows, the Macintosh OS X, and Linux – each of which is regularly upgraded with a new version.</p>
<figure class="align-right ">
<img alt="" src="https://images.theconversation.com/files/125184/original/image-20160603-11585-ehiq95.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/125184/original/image-20160603-11585-ehiq95.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/125184/original/image-20160603-11585-ehiq95.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/125184/original/image-20160603-11585-ehiq95.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/125184/original/image-20160603-11585-ehiq95.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/125184/original/image-20160603-11585-ehiq95.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/125184/original/image-20160603-11585-ehiq95.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Hoping to avoid nightmares: a Java programmer.</span>
<span class="attribution"><a class="source" href="https://commons.wikimedia.org/wiki/File%3AProgrammer_writing_code_with_Unit_Tests.jpg">Joonspoon</a>, <a class="license" href="http://creativecommons.org/licenses/by-sa/4.0/">CC BY-SA</a></span>
</figcaption>
</figure>
<p>Each variation might handle basic functions differently – such as reading a file connecting to the internet, or drawing images on the screen. For a computer programmer, that is a nightmare. Nobody wants to write a program that works only on a <a href="http://www.dell.com/us/p/inspiron-15-3552-laptop/pd?oc=fncwc008sb&model_id=inspiron-15-3552-laptop">Dell laptop with a 15-inch screen, a 500 GB hard drive, 4 GB of RAM, running Windows 10</a> – and no other computer. And nobody wants to write the extremely large number of slight variations to make sure a program works on every machine, either.</p>
<p>The API solves that problem for the programmer, handling the complicated and difficult details of exactly how any specific computer will act. That leaves programmers free to concentrate on what they want a computer program to do, without having to worry about precisely how. It’s better for the user, too. If she has (for example) <a href="https://java.com/en/download/">Java installed</a> on whatever computer she uses, programs written in Java will run.</p>
<h2>Java itself</h2>
<p>The Java API contains methods for everything from reading and writing a file, to drawing on a screen, to handling web security certificates. Without a functioning copy of the API, programs in Java are fundamentally broken. Clearly, therefore, he who controls the API controls the language. </p>
<p>Oracle, when it <a href="http://www.oracle.com/us/corporate/press/018363">bought Sun Microsystems</a>, bought the rights to Java and its API. The crux of the legal battle was how this control is exerted and how far it extends.</p>
<p>No one denied that Oracle has a valid copyright on the language and API specification. This is a good thing. It means I can’t just make a copy of Java, give it a name (like “Darjeeling”), and call it a new language that I own. Similarly, a company can’t change the API arbitrarily and still call it the Java API.</p>
<h2>What did Google do?</h2>
<p>When it <a href="https://googleblog.blogspot.com/2008/09/first-android-powered-phone.html">released Android in 2008</a>, Google added software and hardware development to its existing internet service business. If its products were going to succeed, they needed to be able to run lots of interesting programs. The easiest way to do ensure that was to make sure the new devices could understand at least one computer language that’s already <a href="http://spectrum.ieee.org/computing/software/the-2015-top-ten-programming-languages">widely used by programmers</a>. Java is a natural choice. </p>
<p>The alternative would have been to <a href="https://msdn.microsoft.com/en-us/library/67ef8sbd.aspx">create a new language</a>, but that pathway is fraught with difficulties. Introducing a new language requires convincing programmers that it is worth using and giving them time and resources to learn the language.</p>
<p>Once Google decided on Java, it needed to connect Java programs to Android’s hardware and software – it needed a Java API for Android.</p>
<h2>Sharing names for computer commands</h2>
<p>Rather than commissioning Oracle to write it, Google wrote the software in-house, customizing it for cellphone hardware. For example, Bluetooth, touch-screen gestures and telephone calls are not handled in Oracle’s standard Java API; they are solely in Android-specific code. </p>
<p>However, to be sure Android devices could run existing Java software, Google wrote its Android Java with some of the same commands as Oracle’s version of Java. Both Android and Oracle support the <a href="https://docs.oracle.com/javase/7/docs/api/java/io/package-summary.html">Java.io methods</a> that let programmers use the same <em>files.newInputStream(filename)</em> command to initiate the arcane and complex Java file-reading process. </p>
<p>Google didn’t copy the code Oracle had written for other hardware or software systems. It wrote <a href="https://developer.android.com/reference/classes.html">all-new Android-specific</a> instructions for devices to follow each command, but to help programmers, gave many common commands the same name Oracle used.</p>
<p>Oracle’s <a href="http://arstechnica.com/tech-policy/2012/04/oracles-ip-war-against-google-finally-going-to-trial-whats-at-stake/">lawyers sharpened their knives</a> and the battle was on. Could Google use the same names, even if the code they referred to was different?</p>
<h2>The stakes were high</h2>
<p>If Oracle had won, Java’s days as a primary programming language for Android – the <a href="https://bgr.com/2016/06/02/apples-mobile-market-share-sees-big-drop-in-may-as-android-skyrockets/">world’s most popular smartphone system</a> – were numbered. Very quickly, Google would have chosen a new language for Android programmers to use, and published a conversion tool to translate existing Java apps into the new language. Then it would have stopped supporting Java. (I suspect <a href="https://www.microsoft.com/en-us/">one of Oracle’s competitors</a> would have offered Google excellent licensing terms to choose another language.) </p>
<p>Programmers would have lost. The tools to write code for Android would have been, at a bare minimum, more expensive and less flexible. The public would have lost, because new and interesting apps would both be more expensive and released less frequently.</p>
<p>Finally, Oracle would have lost because programming in Java would no longer be a viable option for a major market. Computer languages compete for popularity, so fewer programmers would choose to program in Java, reducing the pool of people who were comfortable and competent in Java. Instead they would choose others, like <a href="https://www.python.org/">Python</a> or <a href="https://www.ruby-lang.org/en/">Ruby</a>. With fewer people working in Java, Oracle’s primary way of making money from it (creating <a href="https://www.oracle.com/java/index.html">Java-based computer systems</a> that can be expanded by third-party developers) would slowly decline.</p>
<p>Instead, while Oracle doesn’t get $9 billion from Google, the programming community – and those of us who use apps and websites every day – gets to keep using an important tool, without fear of a similarly large lawsuit in the future.</p><img src="https://counter.theconversation.com/content/60418/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Robert Harrison does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Google saves $9 billion, programmers and users get to keep a popular language and its apps – and a key Oracle product stays alive.Robert Harrison, Professor of Computer Science, Georgia State UniversityLicensed as Creative Commons – attribution, no derivatives.