Online Music Lockers, Sampling & Mash-Ups Could Be Illegal In Australia

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Online Music Lockers, Sampling & Mash-Ups Could Be Illegal In Australia

You’ve seen Gotye’s enormous parody video of all the ‘Somebody That I Used To Know’ covers, right? Or at least one of those many mash-ups that have done the rounds since the song conquered the world earlier this year?

Well, according to the latest report from the Australian Law Reform Commission (ALRC), such remixes and mash-ups would be “sued out of existence” based on our country’s Copyright Act, with a new report that is looking into a reform of the country’s copyright laws.

The Age reports that the ALRC has pointed out some major issues with the outdated Copyright Act, which hasn’t been updated for the shifting landscape of the internet and music consumption, with search engines and cloud computing services technically considered a breach of copyright law in Australia.

The ALRC and copyright law experts say that Australia’s copyright laws haven’t kept up with the times, issuing an inquiry that looks into the ways in which the laws are considered too restrictive, particularly into the areas of creative works – like the aforementioned remixes and mash-ups.

ALRC’s inquiry was sparked by debate from legal court battles over the topic, such as the ‘Kookaburra’ case involving the flute part from  the Men At Work classic “Down Under”, which was recently re-released with the controversial flue part dropped.

In light of the high profile court decision, which found in favour of the publishers of the chilrden’s song, Larrakin Music, with a Federal Court judge ordering in 2009 that Men At Work pay 5% of the song’s royalties to the publisher, the ALRC’s issues paper asks whether considering sampling, remixes and mash-ups of copyright materials should be permitted by the Australian Copyright Act.

In its current state, “fair dealing” exceptions are allowed if the material is being used for the purposes of criticism and review, or comedic use – such as parody or sate – but this generally does not allow for the use of sampling and mash-ups.

Speaking to The Age, Dr Matthew Rimmer, associate professor at the Australian National University College of Law, says that: “Australian rock anthems from the 1980s are one thing; but modern musical practices embrace digital sampling, remixes, and mash-ups.”

“A recent interesting example is Gotye’s ‘Somebodies: A YouTube Orchestra‘ – which incorporates a wide range of covers, parodies, and remixes of his original work,” says Dr Rimmer. The professor says that cases like these, “raised larger questions about copyright law, personal use, and cloud computing.”

The latter is the kind of processing that is used in search engines like Google, which are also affected by copyright law in Australia.

Google uses automated web crawlers to find and copy sites on the internet, essentially reproducing copies for indexing and storage in caches so users can more quickly access search results.

The same coding and caching that popular streaming services like Google Music, Apple’s iCloud and Amazon’s Cloud Drive use to deliver personal music libraries across the internet.

The ALRC’s paper says that the Copyright Act allows no exceptions for such standard internet procedures, so it “may infringe copyright” every time it displays search results to an everday user, as it is “communicating copyright material to the public,” a breach of the Act.

Dr Rebecca Giblin, a copyright law expert at Monash University, told The Age that “if Google had been started in Australia, it could well have been sued out of existence,” likening the current Copyright Act to a ”hostile regulatory regime.”

The ALRC is now seeking public submissions on its issues paper and inquiry into the copyright act, with views to handing a final report to the government in November, but Michael Speck, former head of Music Industry Piracy Investigations (MIPI), has criticised the body over the inquiry.

Speck calls the issues paper is providing ”yet another forum for the anti-copyright industry to trot out the same cliches”, adding that suing a search engine like Google (for instance) under Australian copyright law was unfounded and unlikely.

“I’m greatly concerned that the ALRC has set about giving academics with no skin in the game the opportunity to hypothesise about legislation that already works for consumers and creators,” Mr Speck said.

It’s an issue that British musicans have already taken to heart, with a supergroup of UK’s finest – including members of The Who, Queen and Led Zeppelin – attacking search engines like Google saying they make it easier for users to access pirated material; penning an open letter to British Prime Minister David Cameron, urging for government assistance on the issue.

Here’s hoping a potential reform of the Australian Copyright Act is more forgiving to musical and creative pursuits; and less like Japan’s recently reworked laws changing to severely punish individuals who breach copyright infringement.


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