IN two separate rulings, the Federal Court proved this week that copyright law is dangerously out of step with the culture and technology of modern Australia. The decisions went in opposite directions, but highlighted the same point: government inaction has left the courts ill-equipped to deal with some of society's most pressing issues.
Many people have been left puzzled by the infringement ruling against the Men at Work song Down Under. The decision rests on the fact that a small section of the song is considered to be similar to Kookaburra Sits in the Old Gum Tree, a tune from the 1930s. To many, the similarity is vague. But even if the songs have a direct link, there is still a problem.
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The judge was required to apply a body of law that is blind to the fact that modern music routinely samples the work of others. And it's not just hip-hop: think of the trouble Ralph Vaughan Williams or Jean Sibelius would have faced if composers of treasured national folk tunes had had recourse to our courts. Clearly, culture has moved too fast for the law. That is the reason why the Federal Court penalised those behind what is virtually an alternative national anthem.
The argument in favour of modernising copyright law is even more pressing after the ruling that internet service provider iiNet had no responsibility to prevent illegal file-sharing of copyright movies. This decision, if not overturned on appeal, seems partly inconsistent with the federal government's plans. Communications Minister Stephen Conroy wants internet service providers to block illegal material, such as bestiality and child pornography. While the iiNet case concerned copyright, it makes no sense to block one category of illegal material while permitting the distribution of another.
But on the copyright issue, any move from Senator Conroy would need to take account of multilateral talks that aim to produce global standards for the enforcement of intellectual property.
To be effective, those standards will need to take account of the internet. And that means third parties such as internet service providers may eventually need to be held liable for copyright breaches.
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