By Professor Patricia Aufderheide
- A filmmaker who teaches told me that he was acutely aware of copyright law, when he brought in excerpts of movies to show in class—work that he had, illegally, copied and assembled into a form that was usable in a classroom setting. (DVDs and streaming media alike create delays and uncertainties for teachers.) But he did it, because that was what he had to do, to teach. Furthermore, he sometimes showed work that was unavailable yet in his library. “It’s very frustrating to have to violate the law in order to do a good job teaching,” he said. “And I do it every day.”
- A visual artist who teaches on an academic campus I visited recently was outraged at the idea that copyright law in Australia could tell him how to make art. “Appropriation is one of the time-honored techniques of visual art,” he said. “Nothing is going to stop artists from doing that.” He was proud that his audio-visual collage was part of a large installation he displayed at a major arts event, seen by tens of thousands. But asked if he would show it or something like it online, for instance as a demonstration of his work, he demurred. Potentially too risky. Re-using existing copyright work without licensing it is illegal in making new visual art in Australia. He’d also heard that the National Gallery of Victoria doesn’t collect appropriation art, so he doesn’t count on his kind of work entering some major collections.
- A writer who also teaches fiction writing wistfully recalled an early version of a novel, in which one of her characters used phrases and lines from lyrics of a popular song of the era in her conversation. It had helped locate and define the character. But then she found out what it would cost to license those words, and gave up. Her character doesn’t say that anymore.
These are a few of the stories we are hearing, as we conduct a study (involving a survey, interviews and workshops) at Queensland University of Technology. And they’re helping us answer a question that apparently has never been asked in 20 years of hot policy debate in Australia about copyright reform:
What conditions does Australian copyright law today impose on the making of creative work?
Australia has one of the most restrictive copyright regimes in the world. Australian creators have fewer ways to access unlicensed copyright material than almost anywhere else. This means it is more expensive for Australian creators to make work that uses any third-party material than their colleagues in countries that have the U.S.-style copyright exception of fair use or many Commonwealth countries that have more flexible fair dealing clauses (like Canada). It also means that it is harder than in other regimes to teach future creators how to practice their craft.
Digital technology has made it easier than ever to re-use existing work in creative ways, to search broad bodies of data for unsuspected trends, to teach reaching students virtually as well as in classrooms, to access research materials in distant areas. Both as creators and as teachers, we can see the enormous possibilities. In countries that have more flexible exceptions—including the U.S., where fair use is a broad and general exception, and Canada, where fair dealing has been stretched to look more like fair use—it’s possible to do searches of entire bodies of material for trends, facts and patterns. And to use excerpts of copyright material in a classroom, without having to cue up a DVD. We can bring students into a gallery exhibition online. We can write an academic article that includes relevant unlicensed illustrations and quotations, make a historical documentary without licensing every piece of footage, create a piece of music that quotes from earlier work without licensing it.
Australian artists and creative arts professors can’t.
So far, as recent research we conducted demonstrated, no one has explored with Australian creators what consequences that has. Furthermore, the organizations speaking for creators, led by the collecting societies, have erroneously argued that expanding exceptions would imperil future royalties for creators. They’re wrong, because our best information so far shows that the bulk of permissions for third-party (that is, copyright) work used in teaching, creative work and data analysis goes offshore, while almost all revenues deriving from copyright for Australian creators come from licenses for their work as it was intended to be used.
We are still collecting information, via both a survey and interviews. But analysis of the interim data suggest that Australian creators pay a price that creators in many other countries don’t. They pay in dollars; a third of our respondents so far say that licenses account for either an important part or almost all the budget for their work. They pay in time; a third also say that licensing added at least three months to their creative process. And they pay in failure to create or sometimes even to imagine a creation: Almost 2/3 are telling us that recently they either avoided or abandoned a project for copyright reasons.
Although educators and creators have been portrayed as opposed in their interests in the Australian copyright debate, we find that many of the issues they face are the same, especially in the arts. Creators and people teaching creative practice need to make work; their students need to make work; teachers’ own work as teachers features creative practice.
Could final results of our study differ? Possibly. We would love to hear from creators and instructors in creative practice about how they negotiate Australian copyright in their creative practice. You can offer your thoughts entirely anonymously through our survey. We can also promise you anonymity if you’d like to be interviewed (contact me at pat.aufderheide [at] gmail dot com). We will share our results with all the participants of previous governmental inquiries, and with policymakers.
It is time for creators and the leaders of tomorrow’s creators to enter the discussion of what it takes to shape and make tomorrow’s Australian culture. The first step is to answer the most basic question that has gone unasked until now: What conditions does Australian copyright law today impose on the making of creative work, within and beyond tertiary education? QUT’s research is the first step, but only the first step, to doing so. At QUT, we would welcome your good thoughts on where to explore this question, with the baseline research we’re collecting as a starter. Here’s the link, if you want to share it with friends: http://tinyurl.com/gwbwof5.
Patricia Aufderheide, a 2017 Fulbright Scholar at Queensland University of Technology, is University Professor of Communication Studies in the School of Communication at American University in Washington, D.C. She founded the School's Center for Media & Social Impact, where she continues as Senior Research Fellow. Her books include Reclaiming Fair Use: How to Put Balance Back in Copyright (University of Chicago), with Peter Jaszi; Documentary: A Very Short Introduction (Oxford), The Daily Planet (University of Minnesota Press), and Communications Policy in the Public Interest (Guilford Press). She has been a John Simon Guggenheim fellow and has served as a juror at the Sundance Film Festival. Aufderheide has received numerous journalism and scholarly awards, including the George Stoney award for service to documentary from the University Film and Video Association in 2015, a social-impact research award from the International Communication Association in 2011, Woman of Vision award from Women in Film and Video (DC) in 2010, a career achievement award in 2008 from the International Digital Media and Arts Association and the Scholarship and Preservation Award in 2006 from the International Documentary Association.