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The Down Under book and film remind us our copyright law's still unfair for artists

Nicolas Suzor, Queensland University of Technology and Rachel Choi, Queensland University of Technology
Australian copyright law is broken, and the Australian Government isn’t moving quickly to fix it.
Borrowing, quoting, and homage are fundamental to the creative process. This is how people are inspired to create. Under Australian law, though, most borrowing is copyright infringement, unless it is licensed or falls within particular, narrow categories.
This year marks five years since the very real consequences of Australia’s restrictive copyright law for Australian artists were made clear in the controversial litigation over Men at Work’s 1981 hit Down Under. The band lost a court case in 2010 that found that the song’s iconic flute riff copied some of the 1934 children’s song Kookaburra Sits in the Old Gumtree.

Men At Work – Down Under (1981)

A new book and documentary tell us more about the story behind the anthem – and the court case. The book, Down Under by Trevor Conomy, and the documentary, You Better Take Cover by Harry Hayes, bring renewed interest and new perspectives on the tragic story.

Why so note-worthy?

Kookaburra is a simple, four-bar tune. Men at Work were found liable for copying two of these bars. The Court found that this copying was sufficient to award Larrikin Music Publishing – the current owners of Kookaburra Sits in the Old Gumtree - 5% of Down Under’s royalties from 2002 onwards.

A comparison of Down Under (1981) and Kookaburra Sits in the Old Gum Tree (1934)

According to Conomy and Hayes, this decision has been heavily criticised by Australian artists. Copyright is designed to promote creativity, but this is a clear case where it punishes artists for drawing from the culture around them. In Hayes' documentary, cartoonist Michael Leunig says:

A quotation or a tribute or a homage if you like, where you quote from the culture you grew up on, is entirely natural and spontaneous and proper. It reinforces and celebrates culture. It’s culture making. And I grew up on that song. I mean at school we sang that song day and night. It just goes into you – it belonged to us all.

Crucially, Conomy and Hayes both point out that the people who sued Men at Work didn’t even write Kookaburra Sits in the Old Gumtree. Poet and composer Marion Sinclair penned the song for a Girl Guides competition in 1934, and later assigned her copyright in the work to Larrikin.
The association between the two songs wasn’t brought to Larrikin’s attention until almost 30 years after the release of the 1979 and 1981 recordings of Down Under, following an episode of the ABC television program Spicks and Specks.
Hayes' documentary points out that Sinclair would likely have heard the song Down Under at some point during the last years of her life. Presumably, she either didn’t recognise the Kookaburra Sits in the Old Gumtree tune or didn’t care. Many of the subjects in the documentary describe how she had a generosity of spirit with respect to sharing her song and connecting communities in a way that Larrikin evidently didn’t.

The ongoing problem with copyright

Recent controversies like the Blurred Lines case show that there is an ongoing problem with copyright. It seems clear from these cases that copyright is not serving its original purpose.

Men at Work in 1983. From top to bottom: Warren Trout, Jerry Speiser, Ron Strykert, Colin Hay, Greg Ham. MTV/Wikimedia

Ideally, we don’t want our artists to feel the need to “take cover” – they should be encouraged to make and produce new works, as copyright was originally intended.
What makes the story of Men at Work’s greatest single so striking – and worthy fodder for a book and documentary – is the inadvertent way that the copyright infringement was discovered and the tragic aftermath of the court decision.
On 19 April 2012, Men at Work’s flautist Greg Ham was found dead in his home. In Hayes’ documentary, Men at Work’s drummer Jerry Speiser describes the case as being “just another nail in Greg’s coffin.” He said, “I wouldn’t say it was the cause of his death but it certainly contributed".
While copyright law is not fully responsible for Ham’s tragic death, it is not difficult to see how such a finding of copying would devastate any artist and undermine their integrity as a creative professional.

A fairer copyright law

In an exhaustive report released in February 2014, the Australian Law Reform Commission recommended that Australia should introduce more flexibility into our copyright law.
The key recommendation was to create a new “fair use” exception that would allow artists more creative freedom in borrowing and quoting from existing works.
Currently, copying without permission is only permitted if it falls under a prescribed purpose – such as for research or study, criticism or review, parody or satire, and reporting the news. There is no exception that allows artists to quote and rework the material that inspires them.
Fair use allows courts to excuse copying that isn’t harmful. Greg Ham’s flute riff is exactly the kind of tribute that imposes no costs on the original creator. Both the documentary and the book point out that, in fact, this is not just harmless copying of copyright expression – it’s exactly the kind of creativity that Australian copyright law should encourage.
So far, the Australian Government has not taken up the ALRC’s recommendations. Reform in this area is much needed and urgent – if we had had a fair use exception before 2010, the outcome of the Down Under case could have been very different. Certainly, it would have been much fairer.
Down Under by Trevor Conomy is published by Affirm Press on August 1. Watch the trailer for the documentary You Better Take Cover by Harry Hayes here.

Nicolas Suzor is Senior Lecturer, Faculty of Law at Queensland University of Technology.
Rachel Choi is Research Assistant, Faculty of Law at Queensland University of Technology.
This article was originally published on The Conversation. Read the original article.

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Only bravery can save artists from Australia’s elite arts ‘clubhouse’

By David Pledger, RMIT University
Our major performing arts organisations are Australian culture’s country clubs.
Sponsored by a matrix of old money and old-school networks and infused with the new managerialism, the majors currently enjoy the protection of Australia’s conservative government. Inured from funding cuts by the Australia Council where arms-length funding has been cut to the shoulder, the majors sit on high as the small to medium and independent sectors carry the costs of cuts and of pet projects such as the Prime Minister’s Book Council of Australia.
Last November, the Australia Council’s CEO produced a Yes Minister moment at the Senate Estimates Hearing when asked to explain the cancellation of six-year funding for 14 small-to-medium companies.
He couldn’t and there was nary a whimper from the majors nor their peak body. Question is: should we expect there to be?
In the 2014 Philip Parsons Memorial Lecture, the outgoing artistic director of Sydney’s Belvoir Street Theatre, Ralph Myers, took to his constituency with a critical eye.
He was the second artistic director to do so last year: the Queensland Theatre Company’s artistic director Wesley Enoch had a go at arts leaders in July.
Expanding on a theme expounded by this author – the managerialisation of the performings arts sector – Myers’ focus was the substantive issue of artistic directorships in the major organisations and festivals going to administrators and managers. While much of what Myers says is admirable it was interesting to observe the “radicals” he was proposing to these positions. A bunch of good, young theatre directors they may be. Radicals they are not.
Such self-examination is welcome, but it exposes the insularity of the sector. The majors do not see themselves as part of a broader cultural program – which is why they don’t stand up for other sectors when they’re under threat.
Compound this insularity with the alchemy of class, education and wealth that Tim Winton spoke to in a 2013 article for The Monthly, Some Thoughts About Class in Australia:

Ask any director at a major theatre company in this country how many of their actors were educated in public schools. They’ll have to have a good hard think.

I suspect Winton’s profile of education and class (and logically, wealth) would also apply to the artistic executive, senior management and boards of the major organisations.
On numbers alone, the vast majority of Australian artists do not work for the 28 major organisations who receive the vast majority of Australian government arts funding. And over the last decade, government investment in infrastructure has forsaken artists and artistic creation for management.
All these factors serve to embed a country club mentality with artists on the wrong side of the membership profile.
This development is hardly surprising given the prosecution of conservative values by successive governments, their implementation by the Australia Council and their embrace by the majors. This process is reflected across society in which the haves have more – and the have-nots have significantly less.
For our artistic and cultural production, this growing divide is problematic in terms of diversity, quality, content and access. It already manifests as a collision of values when independent artists and small-to-medium companies are inadvertently coerced by government policy into working with the majors.
As the division grows, we will become a one-note culture telling stories and celebrating artists that uphold an official agenda tacitly agreed upon by government, its agencies and an industry elite.
So, short of burning down the clubhouse, what can we do about it?
Belgian political theorist Chantal Mouffe is especially interested in the cultural sector as a field of exploration. Briefly, her assertion is that adversarial activism can play a productive role in nurturing a healthy democracy. She outlines two modes of activism: individuals working within institutions or outside them.
A successful example of the first strategy is Lisa Havilah’s transformation of Sydney’s Carriageworks, as director, from white elephant to roaring lion. Her vision for a difficult space and place with a conflicted programming past has balanced content and form with an architecturally prescriptive venue. In comparison to many arts centres, Carriageworks is a dynamic, forceful and uncompromising concern.
Leading by example may positively re-configure the Australian cultural sector but can it save from itself?
Enter David Walsh, a real and present danger to the clubhouse. MONA – the private museum funded by Walsh in Tasmania - is a provocation that sits outside the norm, a brilliant mongrel of an idea that blindsided the establishment.
I’ve not encountered a cultural enterprise that solicits such positive response from as broad a demographic as MONA.
And artists love it. Why? Because in Walsh’s various guises as working-class hero, gambler, builder, curator and cultural operator, he embodies their ideal self. He’s bold, risky, teeters on the edge, uses language like a larrikin, and is uncharacteristically frank. He rapidly absorbs criticism he finds useful and just as rapidly excretes the extraneous. For Australian artists tamed by the system, Walsh represents the prospect that courage will offer greater return than timidity.
And it’s a lesson that translates widely because MONA morphed into a new entity that resembles some of the “architecture” that characterises an arts institution.
For artists who do not stand up for fear of losing what little agency they possess and for institutions terrified they will be punished for criticising government, the lesson is simple: courage is a process, risk is a friend.
Thinking and acting bravely outside the institutional square is the only thing that can save artists from the clubhouse, and the clubhouse from the doghouse.

This article was originally published on The Conversation. Read the original article.