#Copywrong – social media, transformative use and copyright reform

by Leanne O'Donnell
January 17, 2017

“You can watch a clip on YouTube, but you can’t include it in a presentation to colleagues at work, or for a conference.”

“A comedian can remix content for parody or satire, but an artist can’t remix the same content for any other artistic purpose.”

Are you surprised by these copyright facts?

Earlier this month, the Australian Digital Alliance launched a new micro-site highlighting how Australia’s copyright law is not keeping up with the digital world.  Discussion on Twitter about these issues has been lively using the #copywrong hashtag.

This is a very timely campaign. The Australian Law Reform Commission (the ALRC) is currently holding an Inquiry into Copyright and the Digital Economy (on Twitter #copyrev).

In early June, the ALRC released its Discussion Paper. It’s a very lengthy document, being over 380 pages, so don’t just hit the print button!

However, the central proposal is the introduction of a:

“broad, flexible exception for fair use of copyright material and the consequent repeal of many of the current exceptions in the Copyright Act, so that the copyright regime becomes more flexible and adaptable.”

Unlike the US, Australia’s copyright law does not have a general ‘fair use’ defence.

Instead, our Copyright Act has limited “fair dealing” exceptions that only apply to certain specified purposes:

Even in these specified cases, the use of the copyright work still has to be “fair” which will depend on the circumstances.

One issue discussed by the ALRC that should be of interest to those actively engaged in social media, is the topic of transformative uses.  Transformative uses cover, for example, sampling, mash-ups or remixes, that is where pre-existing works are used to create something new.  While some of these creative acts may be permitted by existing fair dealing exceptions such as parody or satire, many would not. An everyday example is using a song covered by copyright in a home video.

One prominent example cited in the Australian Digital Alliance’s submission is Somebodies: A YouTube Orchestra, created by Gotye, which samples and remixes YouTube covers and parodies of his hit single Somebody I Used to Know.

Another high profile example is EMI Songs Australia Pty Ltd v Larrikin Music Publishing Pty Ltd  where EMI’s recordings of the iconic Men at Work song ‘Down Under’ were found to have infringed the copyright in the song ‘Kookaburra Sits in the Old Gum Tree’, composed and written by Marion Sinclair in 1934.

In contrast, a fair use exception would be expected to allow individuals to use copyright materials more freely in transformative uses.  Indeed, one of the ALRC’s proposals is that the fair use exception should be applied when determining whether a ‘transformative use’ infringes copyright.

We’ll discuss in a future post the options to use content legally and reduce your risk of copyright infringement under Australia’s existing copyright laws.

The good news.

You can also have your say on how the law can be reshaped to fit the digital world.  As Australian Digital Alliance highlighted in their submission, under Australian copyright law, Pinterest ‘fans’ who follow pinboards and share and disseminate, for example, a photographer’s work, could be considered copyright infringers. In contrast, its users in the US are arguably entitled to claim that sharing via these sites is fair use under US copyright law.

If you are interested in these issues you can provide your views to the ALRC.  Submissions in response to the Discussion Paper close on 31 July 2013 and members of the public are strongly encouraged to make their views heard. You don’t need legal qualifications, and your submission need not be formal.

The ALRC is due to provide their final report by 30 November 2013.


  • This information is provided as a general overview of copyright issues and is not intended to be legal advice. You should seek independent legal advice before relying on the information provided.

  • I am a member of the Australian Digital Alliance and assisted iiNet in preparing a submission to the Australian Law Reform Commission’s Copyright & the Digital Economy Inquiry.