This photo of my son & I was taken at our recent holiday on Hamilton Island. My son just got out of the pool, dried and got dressed while I was reading a book on my Kindle. So far so good.
Then it occurred to me that, when viewed at its original quality, this photo allows its viewers to read the text of the page of the book I was reading at the time. In other words, this photo may constitute a copyright infringement! And we know what the deal is with the scum that infringes on copyrights: They ruin our economy. They get honest people laid off. They are pedophile, murders and rapists combined!
I don’t want to be a pedophile raping murderer, so I sought the advice of the Australian Copyright Council on the matter. In particular, I wanted to check whether this photo of me reading a book constitutes a copyright infringement or whether it is considered to be fair use.
Unlike the USA, Australia does not have a “Fair Use” clause to its copyright legislation. What it does have are Fair Dealings allowances (refer to this Australian Copyright Council document here), and to the best of my understanding they come down to this: the use of copyrighted material may be considered a fair deal if it is for either research/study, criticism, parody, news reporting, or professional advice. Clearly, my photo above does not fall into any of these categories: it is simply a holiday picture.
I might find my break elsewhere, though. As the same document states, if I am using “less than a substantial part of the material” for my work [photo, in our case] then I do not need to bother with permissions and all; my photo would not be considered a copyright infringement. So I went looking to see what constitutes a “less than substantial part of the material” in the eyes of the Australian Copyright Council and found this document of theirs.
Common sense tells me my photo is completely meaningless, but that is not what the Australian Copyright Council is telling me. What it says is that, essentially,
The concept of a “substantial part” is judged by whether or not what you want to use is important, essential or distinctive.Alright then, how are we to make this judgement?
The quality of the part is more important than the quantity or proportion. The part may be a “substantial part” even if it is a small proportion of the whole work, particularly if it has resulted from a high degree of skill and labour.Ooh, now I need to judge the quality of the specific page my camera caught. It’s important for me to do so, too, as per this example:
There are many court cases about whether using part of a work infringed copyright, such as the case where the court held that reproducing 4 lines from a 32 line Kipling poem infringed copyright.In other words, a layman like me could have no real confidence here. Posting this photo might be completely innocent or it might turn me into a raping murderous pedophile, but unless I employ the services of an expert lawyer I will never know which of the two I am. The matter may only be settled at court, a place I do not seek to find myself at.
For added complexity, I will ask myself a question on which expert lawyer do I need. Do I need one specializing in Australian law, because I am an Australian and I manage my online presence from Australia? Or do I need an American one, because my domain is a .com one and the corporations hosting my material are American? People in the know might be able to answer this question, but regardless: the layman does not stand a chance. The result? Publishing your own content without a cartel to hold your hand in the process is a very risky affair.
Or maybe the actual case is that our copyright legislation is evidently and totally screwed up when an innocent family photo by the pool can be regarded as the cause of such mischief? Think about it.
Think of this, too. That page of the book is not the only object in the photo. I am wearing designer sunglasses, both my son and I wear designer shirts, we are sitting on a chair designed by someone, and I am reading an ebook off a very sophisticated device designed by a company called Amazon. In the background there may be a building designed by an architect. The inclusion of none of those would constitute a copyright violation; there would not be a photo that doesn't breach copyrights in the world if that wasn’t the case. So why is it, then, that the same cannot be applied to books, or for that matter music or film?
It is clear only very specific forms of creativity are recognized by law to have property like attributes. It is therefore this very specific focus that clarifies the whole affair reeks of artificiality.
P.S. I am under the assumption my quoting off the Australian Copyright Council’s forms constitutes a fair dealing since this post is all about criticizing it.
P.P.S. If you think this entire post is a frivolous act of hot air on my behalf, I recommend you read this bit of news, the essence of which is that none other than Sony is being sued for quoting nine words out of a book in its film Midnight in Paris. If Sony with its army of lawyers can be sued for nine words, what is to become of the rest of us?