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Copyright, Copyleft: The Use and Reuse of Media
Substantive Law| What area(s) of law does this episode consider? | Developments in copyright law, including the evolution and proliferation of copyleft. |
| Why is this topic relevant? | Copyright law has to continuously evolve to keep up with the ever evolving proliferation of original content creators and new media types. Newer mediums such as open source software provide a challenge to traditional concepts of copyright, importing into the law their own ideas of rights and ownership – such as the now infamous copyleft slogan “all wrongs reserved”. |
| What legislation is considered in this episode? | Copyright Act 1968 (Cth) |
| What cases are considered in this episode? | Temple Island Collections Ltd v New English Teas Ltd & Anor [2012] EWPCC 1 (BAILII link)
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| What are the main points? |
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| What are the practical takeaways? |
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| David Turner:
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2:00 | Hello and welcome back to Hearsay the Legal Podcast, a professional development podcast for Australian lawyers and anyone else who’s interested in Australian law. I’m your host, David Turner. Hearsay the Legal Podcast is brought to you by Lext Australia. Lext is on a mission to improve the experience of getting legal advice and practising the law and Hearsay the Legal Podcast is improving your experience of CPD. Now for some of us, our only experience of copyright might be the firm admonition not to copy more than 10% of a copyrighted work, plastered on the wall above the photocopier in the University library. Or it might be through media reports we’ve read of older works entering the public domain, works like A. A. Milne’s Original Winnie the Pooh, which entered the public domain for the first time ever this year in 2022 but what exactly does it mean for a work to be subject to copyright or in the public domain and why should we care? With the proliferation of original content creators across a variety of media and evermore complex original works, these questions are far from academic. Copyright touches literary fiction and oil on canvas, all the way through the software code and works tokenized through NFTs or Non-Fungible Tokens. And what about open source licences to copyrighted material and more dramatically, the anti copyright movement, named tongue firmly in cheek, ‘copyleft’, a movement birthed in software anarchism by the hacktivist tech pioneers of the 1970s in binary opposition to the concept of copyright. In rejecting proprietary software, Li-Chen Wang birthed the now infamous movement with the words ‘@COPYLEFT ALL WRONGS RESERVED’. Today, open source and copyleft ethos are issues that commercial lawyers have to grapple with as traditional notions of copyright are challenged by the open source culture of modern software development. Now, our guests today on Hearsay the Legal Podcast are Michael Green, SC and Wen Wu, barristers at Level 22 Chambers here in Sydney. Michael is an expert commercial barrister specialising in intellectual property and Wen is a barrister specialising in copyright law and intellectual property with several postgraduate qualifications in the area. Michael and Wen, thank you so much for joining me today on Hearsay. |
| Michael Green: | Thanks very much. It’s great to be here, David. |
| DT: | Now if you could, Michael perhaps I’ll start with you, step us through the kind of copyright related work that you see in your practise at the bar. Has there been a really standout copyright case that you’ve worked on recently? |
| MG:
3:00 | There are many, many cases on copyright that are always interesting and every case is different. There are sort of two categories of case, one is the case where it’s selling products, for example, parallel importation and the like where you’re just simply looking at the straight out infringement or counterfeiting and there are other cases that require a little bit more delving into the copyright works, so house plan cases are an example, cases to do with computer software and the like where you need to think about the concept of originality and Wen and I had a very interesting case which ended up settling but had to do with whether or not the photographer of birds, particularly budgerigars, could claim copyright in the arrangement of the budgerigar photograph. |
| DT: | I remember we spoke about this one before the episode and now, to be clear, this is a different bird, but arranged in a very similar way. |
| MG: | That’s right, well, maybe Wen can talk about it because Wen went out and found every book there was that depicted photographs of budgerigars as part of our profession. |
| Wen Wu:
4:00 | So, our client’s a budding photographer trying to get into more professional photography and he received an allegation of infringement from one established photographer and both of these photographers were shooting birds, particularly budgerigars, and both, I guess, had a similar style in the sense that they were close ups of birds framed in a particular way that is the birds were sort of from the top of their heads to their chest area, but they were different photographs, different birds, and posed slightly differently. So the question there was whether our client infringed anyway, the copyright of this other photographer. One of the interesting tasks was trying to find different examples of bird photography out there and different examples of budgerigar photography and because people who breed birds and particularly budgerigars tend to be quite enthusiastic, there is surprisingly more than a dozen books about budgerigars out there in the Australian market. |
| MG: | And like one has with horses and with cattle, there’s a study guide about how to judge budgerigars, which gave you how to evaluate different kinds of bloom and what the plume meant and how to evaluate them. There was a standard breed guide, so if you want to know where you had a pedigree budgerigar, that was a book to turn to, which set out really what makes a budgerigar so attractive, which is the plume, the plumage. |
| DT: 5:00 | There’s really no limit. There’s an infinite number of things one can occupy one’s time with in the world, isn’t there? There’s so many different forms of media that copyright touches on, and I suppose you’ve mentioned a few of those more exotic forms a little bit earlier, like house layout plans and software and things like that. Now even a neophyte would probably know that our copyright laws are found in the Copyright Act 1968, that’s a Commonwealth act. What type of works under that legislation does copyright attach to and how and when does it attach? |
| MG:
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13:00 | Well, it attaches to artistic works, literary works, musical works, dramatic works, they all have different definitions, and adaptations, which are an interesting category. A lot of the meaning of adaptation has been changed by the definition of the Act that extends adaptation to mean, in the case of computer software, versions in different languages or versions in machine language into source code and vice versa. So there are different ways that the Act has been extended over time by deeming things. So, one of the most difficult areas is that computer programs are deemed to be literary works. So, when one comes to evaluate software, one treats it to some extent as the same as a novel or the same as email or any other kind of literary work. So it becomes quite a challenge to fit certain categories together and over time the Copyright Act has evolved to reflect different competing economic interests and different compromises between different rights holders and different interest holders. And that itself is a whole podcast about how that happened and people still debate that TIP: So, we know that copyright extends to a whole range of different kinds of works – the law in this area is constantly changing and evolving to keep up with technological and social advancements and software as copyright is just one such example. Now, at the time of the passing of the Copyright Act in 1968, I’m sure you can imagine that computer programming was, at best, a pretty nascent industry, if it was an industry at all. You know, another thing that really placed a lot of strain on copyright regimes across the globe was the globalisation of markets around the world. Let’s hear from Michael now about how copyright operates across modern borders. The other thing that you need to know about copyright is that copyright works on the principle of what’s known as national treatment. So there is a global system of copyright which is implemented through a series of treaties. The Berne Convention for the Protection of Literary and Artistic Works, and there are other treaties for phonogram records and the like, but what all of those treaties say is that it’s a matter for each of the member states, each of the signatories to it, and Australia, is a signatory to it, to implement those obligations in their national laws, and that’s the principle of national treatment and what happens in national treatment, is that the obligation of the member state, this case Australia, is to treat everyone equally under the law that’s of another member’s state. So if you happen to be a national of the country that is a member of the Berne Convention, for example, you’re entitled the same treatment as if you’re an Australian citizen or an Australian resident and then the other thing that you need to know about that is that there are certain caveats. There’s an ability of each state to create exceptions and a lot of the hard fought debates about copyright policy of late has been about both what exceptions should apply? Should we copy from the US, copy from elsewhere? Should we implement similar schemes of exemptions or exceptions? And also how do we describe them? So, we can describe the same idea using different language. That’s one of the exciting things about being a lawyer, often debating about that, but really the interesting problem is should we use, rather than fair dealing, fair treatment or what do we do about that kind of terminology. Should we make those changes? Your introduction, of course, mentioned about the 10% idea, which is of course often misnomer. If you take 10%, you’re OK or take a chapter, you’re OK. Well, of course, that’s not the case. TIP: Ok, so, copyright obviously exists to protect the copyright owner by ensuring that their rights are protected when their original work is used or replicated. Now, we’re often told that replicating 10% of an original work is fine, but don’t go higher than 10%. And you often see that “rule” – quote unquote rule – replicated in university settings or sometimes offices. Now, as Michael says, this 10% figure isn’t really the whole story. The Copyright Act creates certain carve outs for the use of original works in educational settings and in places like libraries and archives – you can find the specifics of those carve outs for such uses in Part IVA of the Act. Michael will touch on statutory remuneration for those uses in a moment. So what is this 10% rule then that we’ve all heard? Well, often this 10% rule is actually a rule imposed by an institution, like a university for example, to try and prevent plagiarism or fraud. One of the interesting developments in the technological responses and the social responses or the legislative responses to copyright protection is to facilitate the use of works but while still giving the copyright owner some degree of remuneration through what are known as statutory schemes. So in Australia we have educational statutory exemptions, educational copying, we have government statutory schemes, we have off-air copying schemes for educational purposes, and they’re all important because they facilitate what was seen by the legislature to be market failures. So seen by the legislature to be something that is worthwhile that students and educators had access to the widest possible material but at the same time, there was a need, rather than freeform copying without any remuneration, there was a need to put in place a remuneration scheme and entities like the Copyright Agency, Audiovisual Copyright Society, also known as Screenrights, and other entities all provide remuneration schemes to really create opportunities where the users of copyright material can pay a fair amount and the owners of copyright material, including, of course, the authors and those that other publishers, can obtain a benefit as well and the idea being that that encourages those participants to continue to create and to be able to earn a living from what is a fairly small market, particularly educational sphere. So there are those sorts of interesting things. TIP: Now, attribution of a work to its original creator can be a nightmare – especially with something like photographs. The proliferation of smartphones has also resulted in the proliferation of photography, and of very, very similar photos of the same subject or event. Now, without going too deep into the issue of metadata, the author – or creator – of, say, a photograph taken on an iPhone and uploaded to the internet is usually not credited with creation of that photograph. That makes tracking down the originator of a photographic idea or concept a pretty difficult task. Now, another issue with photographs, as Michael discussed in the budgerigar example, is that it can be difficult to determine if someone is actually attempting to reproduce someone else’s work. Wen and Michael are about to give us a really good example of this issue in a moment using the example of a photograph of the Sydney Harbour fireworks on New Years Eve. If I may just return for a moment, David, to photographs because they’re quite an interesting area of copyright law. So the first owner of copyright in a photograph, putting aside wedding photographers and people making portraits but just recreational photographers, if you go out into the field say you go down to the water and take a photo of the sunset, the person that presses the button on the camera is the author. That’s thanks to the definitions in the Copyright Act. Maybe it’ll be intuitive that they’re the author, but of course there’s an issue about what is the authorial contribution. So the pressing of the button. And one of the problems about photographs, let’s take the recent fireworks on New Year’s Eve. Imagine there were twenty people standing side by side, each taking a photograph of the same thing that they saw, and just for the sake of this example, they’re able to all stand immediately behind one another and they’re all able to press the camera button at exactly the same moment so that each of those images look exactly the same. They’re all separate works. Each of those photographers are authors of each of those works and there’s been no active copying from the Copyright Act which makes it a fascinating problem. If you saw that image of the sunset or the image of the exploding fireworks, and you then try to recreate that knowing that you’d seen that and say you went to your backyard and tried to grab your own fireworks explosion to try to capture that moment, on one view, you might infringe copyright because you had access to that material and you set out to try to copy it, and there’s a famous case in the UK which Wen can tell you about. |
| DT: | And that’s fascinating. I didn’t actually appreciate the level of intentionality that’s relevant to a copyright infringement. Wen, tell us a little bit about that case. |
| WW: 14:00 | The case Michael’s referring to is the Temple Island Collections case, which is coming up to about 10 years old now. You might recall the famous London Bridge and the Red Routemaster buses that roll along London and one company that made souvenirs, sued another company over a similar image, wasn’t the same image. It was based on a photograph, so the image had been taken from a photograph and then subsequently there was some digital manipulation, so we’re talking about the interaction between photographic works and other kinds of artistic works, and it wasn’t the same photograph, but it was at a similar angle and it had similar elements and similar configurations, so the angle of the bus where the bridge was, the Big Ben in the background, and in that case it was found to be reproduction infringement. |
| DT: | Sounds a little bit like your budgerigar win. |
| WW: 15:00
16:00 | Yeah it is, and it raises interesting questions as to how and in what circumstances, a person might infringe copyright in a photograph. The simple example is, well, if you put it in a photocopying machine, you infringe the copyright, but what about other circumstances where you go about setting out to create a similar photograph? And whether if you didn’t have access to the original photograph at all, whether you might still infringe copyright, because, for example, although you haven’t mechanically copied it, you’ve gone about in a way to create a similar result having seen the first work. TIP: Now, the full name of that is Temple Island Collections Ltd v New English Teas Ltd & Anor [2012] EWPCC 1. That’s what it was called in 2012, it’s now called the Intellectual Property Enterprise Court today. Now, ultimately, the Court found that the photo did in fact copy a substantial part of the original image and thus infringed the original owner’s copyright. The judge found obvious similarities between the two images – like the bright red bus driving from left to right, the rest of the image being black and white, and the inclusion of the same buildings and a blank white sky. We’ll put a link to the case on the summary page for this episode if you want to learn more. The decision contains the two images as an annex so you can take a look, compare and make up your own mind. |
| DT: | And with the proliferation of amateur photography over the last 20 years, I imagine there’s a great number of intentional and unintentional reconstructions of photographs that might be commercially valuable to their original creators it’s really fascinating because the public policy purpose is to protect the creator’s commercial interest in the dissemination and use of the work. It’s interesting that with that proliferation of works that might look very similar, or that might be engineered to look similar, but that maybe not, maybe they just look similar by happenstance, it’s interesting that so much of that then turns on intention. |
| MG: 17:00
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19:00 | One of the really interesting things is a lot of the debates about copyright infringement is a question of framing. So going back to the budgerigar, if you’re trying to defend infringement, you look at what Wen and I have called the authorial contribution. What is it that’s original? Take an exploding firework in a common place setting that happens every year, or several times a year at times, and a photograph’s taken of it. It’s a commonplace scene. The bus and the bridge is another example of maybe less common-place. So what is the authorial contribution? Take the budgerigars. Is it the selection of a particular budgerigar, or is it the expression of the idea in the juxtaposition of the budgerigar in a large format? You know, they’re all different ways that you can frame the problem and frame the authorial contributions which can lead to very different answers, and so going back to your point, David, if you take what comes up a lot in musical infringement now, the thing about music infringement and it’s true of every case, as you well know from your diverse experience, is that most things don’t go to court. So a lot of the times, very clear cases or even difficult cases don’t find their way into the case law. But what happens a lot in music copying is, of course, in session music or the creation of theme music and advertising and often the brief to the incoming musician is ‘I’d like something to sound like this’ or ‘I like the idea of this’ and there’s no doubt the success of the incoming composer is to create a work that’s not too close, but not too far away from the other work to try to create that feel, you know, suspense music or something else, and there’s a question whether or not the person in creating the new work has just drawn from a common heritage or has transgressed the line, and they’re all difficult questions that require quite a fair amount of debate and framing becomes a difficult question, so there are a lot of really interesting questions that come up in copyright. Unfortunately, not everything goes to court, not everything is the subject of reasoning in court, but you know from the music copyright cases that they’re taking a substantial part need only be a fairly small part of the overall work as a whole for that to be taken, so true in other areas, but they’re all value of judgments that require evidence and require a process of reasoning. The case law at the moment is never quite on all fours with the particular question, so it’s a really exciting area of practise in a really exciting area of law to do that. |
| DT: | Now, copyright protection doesn’t last forever, and we talked a little bit at the top of the episode about older works entering the public domain – characters like Mickey Mouse or Winnie the Pooh, for example. When does a work enter the public domain and for how long does the work enjoy the protection of copyright? |
| MG: | I love that question because there’s copyright day. There’s one day of the year in which all works that expire suddenly come into the public domain |
| DT: | Really? |
| MG:
20:00 | In my lifetime, the period of copyright has gone from, relevantly for most kinds of copyright material, 50 years after the death of the author in the case of copyright works, subject matter is slightly different and unpublished works have a slightly different treatment, it went for 50 years and it’s now 70 years. There’s a proposal for it to be even longer. TIP: On the 1st of January, 2005 the US Free Trade Agreement Implementation Act 2004 (Cth) came into force, extending the copyright term for text, images and music to 70 years after the original author has passed away. This Act was passed into law to fulfil Australia’s obligations under the Australia-United States Free Trade Agreement. So, with things like computer software, that’s as long as you’d ever need. |
| DT: | Yeah, that’s as good as indefinite. |
| MG:
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22:00 | Well, I mean, if a user makes the work in their 20s or some child prodigy in their 15s and say they lived to 90, or if people get older and older and they can live to 100, then that’s a very long period of protection for a piece of software. So, practically speaking, for most purposes it’s that the question of copyright term or protection doesn’t come up. Where it does come up is in things known as evergreening, where there are attempts to extend term if need be and there are some works, in the UK, for example, Peter Pan being one of them, that is protected indefinitely by a part of their Copyright Act. It doesn’t apply, of course, here, it comes back to the point of national treatment, but really, that’s not a huge issue. Although for publishers of works there’s a lot of work that’s done working out when works were first published and then also, if they were published, then working out when the 70 year period or the 50 year period then became the 70 year period, came up and that changed from 50 to 70 years led to some quite interesting conundrums in terms of period of protection but I won’t go into the details of that because that would require me to reveal some confidential material about some cases I’ve had settled, but it’s an interesting problem about protection, but I think practically speaking, copyright protection periods are very long and the many academics have riled against them as being perpetual, which they’ve got a point and then there are other questions like works such as databases or works such as compilations and tables when they’re first made. You can of course continue to create those so one could take that work just before I went out of copyright and recompile it and create a new work and the question then is whether there’s a new original work, and whether that goes on and on. |
| DT: | Is there a persuasive argument for a reduced scope of copyright protection, particularly given that at least so far as the entertainment application of copyright is concerned, more and more works are aggregates or amalgams of samples from other works, drawing inspiration, as you say, from influential artists in that genre. Do you think there will be a turning point at which copyright protection is constrained? |
| WW:
23:00 | I don’t think we will have any substantive reduction to the copyright term. The reason being that these sort of things are embedded in multilateral treaties around the world. So unless major creative economies are willing to reduce their monopolies, which is unlikely, like for example, the US is a major producer of creative works. They are unlikely to want to reduce those monopolies and are unlikely to allow their trading partners to reduce those minimal please. So I don’t think we will see in the medium or even long term any reduction in the copyright term. |
| DT: | I can’t imagine it’s an attractive proposition to Disney. |
| WW: | No, not at all, and actually over the Christmas break I saw a Disney exhibition at the ACMI Museum in Melbourne and the first slide that you see is a drawing from Steamboat Willie, I think back in the 20s or so. I think that that particular film, that particular cartoon is out of copyright here and elsewhere but coming back to Michael’s point about evergreening, because Mickey Mouse has been used again and again in subsequent cartoons and other films, the character itself you can say continues to be in copyright because of those later films and works. |
| DT: 24:00 | Tell us a little bit about the protection of characters. This is something that’s always been interesting to me, because again, Michael this is perhaps a misnomer, but something that I had always understood to be the case about copyright was that perhaps glibly it protects the expression of an idea, but not necessarily the idea in the abstract characters are, it seems to me, a little bit closer to an idea than an expression of it. Tell us a little bit about the protection of literary or fictional characters. |
| MG: | It’s easy to talk about this at the high level, and of course it’s the detail that frames the whole response but taking your point David, there’s always this continuum between the abstract idea and the expression of it, and one of the great disservices, I think, of copyright law and also one of the most challenging things is to try to navigate the very abstract concept of idea expression or the idea expression dichotomy. In practice, at least every time that anyone utters it, you realise that it’s a frame of reference completely devoid of any assistance to any kind of resolution of issues because necessarily we communicate in language, so every kind of idea is always reduced to some kind of writing. |
| DT: 25:00 | As Marshall McLuhan said, “the medium is the message.” |
| MG:
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27:00 | Well, that’s a good way of putting it, and certainly when one comes to characters, there are features of characters. For example, if you’re talking about a character that is a cartoon character or drawn character, or a character that finds a way into artistic expression necessarily, the idea of that character, say if it’s Road Runner, there are plenty of competing Road Runner versions. The Simpsons made humour of that, and so too did others, that there are all sorts of things you can do to make Road Runner not look like Road Runner and therefore arguably not be an infringement but have you gone too far? It’s always that question of degree and it’s always a question of fact and circumstances. The simple answer is of course copying goes on and has gone on for a very long period of time and there is a cost benefit analysis about whether or not it’s worthwhile for an infringed owner, the person whose work has been infringed that has a right to bring proceedings, there are many unpursued cases because the cost of pursuing it versus the person that stands behind the person doing the work makes it often uneconomic plus the cost of proceedings and the like. So there’s a real problem in how one vindicates rights in relation to copyright infringement. On the other hand, there’s a whole lot of philosophy, so a lot of artists these days have an open copying idea. They actually encourage mashups and copying as a way of actually making themselves more scarce and more popular through imitation. So there’s a really interesting development in the multimedia world, when it’s so easy to make derivative works when I say derivative works, I don’t use that in the American sense, but works that borrow from in whole or in part, or mashup other works and the attitude of the artist is an interesting thing I mean, for example, in the simplest form that bootleg recordings of performances of concept is one of the most frequent examples. That has actually improved, one argues, I don’t know if there’s any support for this, but certainly the people arguing that have said, for many years, that that improves the standing of artists and improves the desirability. Banksy is another one. The self destroying work. Other examples where what happens about copyright works that are fleeting and what is the role of art. That gets into some really interesting philosophical debates about the nature of art, the nature of expression, whether a copyright is the right method, whether it’s right to protect those works by copyright and can artists, or can creators opt out, that’s your copyleft point. |
| DT:
28:00 | I don’t think we have time to talk about NFTs in this podcast. It’s probably a far larger topic than we can cover in the time we have available, but I remember listening to another podcast which framed the argument about the concept of ownership of an artistic work through an NFT. ‘Well, how can you own it? If sure you have this token that says you own it, but any person can copy the JPEG that they find on a Google image search at the same level of resolution and clarity and enjoy the work as if they owned the digital piece’ and the advocate for the tokenization of digital art, said, ‘well, the many many posters and photographs of the Mona Lisa don’t reduce its value.’ So it’s an interesting idea. This idea that the scarcity of access isn’t necessarily tantamount to value. I’m really glad you mentioned the idea of copying, using and disseminating works, and encouraging others to do that because what I really want to talk about now is open source licences which are kind of an example of a non-artistic situation or example of the encouragement of that. Now, open source licences are ways that software or designs can be shared, used, modified by their recipients. Essentially they are a licence that permits some modification, use, or dissemination without royalty. What are the different kinds of open source licences and when we say open source licence are we talking about one and the same thing all the time? |
| MG: 29:00
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31:00 | I’ll just give two examples that are more interesting. Obviously there’s one large group called Creative Commons that for some years has created quite a useful scheme to allow the owner of copyright to licence their work in quite specific ways, including non-commercially and the like. So some of those are absolute, some of those are conditional upon meeting preconditions, Creative Commons. They’re used a lot in government settings where government makes available legislation and other materials and publications like online, in Australia at least, instead of doing what is available in the United States where there’s no copyright protection for government works, in Australia there is, and so governments have latched on to Creative Commons as a way of signalling the kind of users that can be made commercial, non-commercial and the like. In my experience, firstly, when one comes to open source use, if one’s evaluating, it’s usually in the context of the use of those components in bigger works. So one’s doing due diligence process or one’s trying to advise a client or one’s trying to work out what is the contribution of that client or the work that’s been allegedly infringed or has been used or what are the rights that the client can grant to others to use the work. What are the conditions? So some open source licences require you to include in the work itself or in any documentation or any manuals, a statement of the licence in relation to the work and those entities with good compliance, you’ll see that, for example, if you look at, say Spotify and look at the about page on Spotify, you’ll see the list of all of the open source components that are included in Spotify and to the extent to which Spotify is required to include licence terms, the licence terms. The point I raise Spotify is not to say Spotify is any worse than anyone else is actually better, but it does illustrate that a lot of these very commonly used online programmes, used by millions of people around the world contain a large amount of open source components so that really everyone is building these snowball systems based upon a lot of open source software with different licence terms and the like. So some lawyer that’s involved in those projects has to evaluate a licence to see that their compatible, see that they can do what they need to do, and then in some cases, and famously the FreeBSD movement, changed the compilers they used to compile FreeBSD because they wanted to have a different underlying licence scheme. The point being that in the case of FreeBSD, if FreeBSD was made using different compilers, FreeBSD would in turn have to disclose a lot of the work that we’re doing and make those works subject to the same licence. So it’s easy, again, to describe these open source or open source licences but the devil, as with any legal issue, is in the detail. |
| WW:
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33:00 | It will be interesting, and I haven’t checked this yet, on what terms the Commonwealth government will licence the Aboriginal flag that it recently acquired from Mr Thomas because previously, as you might know, David, the issue was whether the Aboriginal flag could be reproduced in flags and also in clothing with the AFL. TIP: In 1971, First Nations artist Harold Thomas designed what we now know as the Aboriginal flag as a symbol of the Aboriginal land rights movement. Thomas then gave the exclusive right to use the flag on clothing to a company called WAM Clothing. This meant that any other companies that wanted to make clothing with the Aboriginal flag on it couldn’t do so. On the 25th of January 2022, the Federal Government completed negotiations with Mr Thomas, purchasing the rights to the flag for about $20 million. The government press release said that it would be free to use for everyone to put anywhere they’d like, without fear of infringing copyright. The other thing that Michael just said reminded me of is that even though a software system might include open source components, other components may not be open source. So if you’re a software developer or software publishing company and you’re thinking about using open source components and you’re concerned about whether licence terms of those components means that you need to licence derivative works also on the same terms, you should also know that you can compartmentalise it, so you can cut the cake in multiple ways. There might be bits you own and there might be bits that are able to be licensed by other people. |
| DT: | And that more radical version of the licence that requires the derivative work to be similarly made available on a very liberal open source licence is what we refer to as a copyleft licence, correct? |
| MG:
34:00 | That’s the idea. That’s an example of one, yes, but there are others that are not necessarily as liberal, but still have the same consequence. So for example, Elasticsearch is a good example recently. Elasticsearch changed its licence terms because the Elasticsearch development team was upset with what was thought to be the free riding by others, particularly a well known cloud platform provider, AWS and others, in using Elasticsearch and not contributing back to the value of the development community and this is a good example where there are legal responses and there are commercial responses. The commercial response of AWS was to fork the software because it was an open source software project and then create a version that reflected that use and make that available back to the community. So there are difficult issues, but yes, there’s always that tussle and it comes down to question of community. In the case of open source where there are a large network or large community contributors, what they wish to have happened with the governance of the software projects and the openness of the software and the philosophy underlying it. |
| DT:
35:00 | It is fascinating how this area is really guided by the ethos of the development community. It’s an example of the legal profession really having to grapple with a philosophical approach to copyright that has become very commercially relevant. One common reason for merger and acquisition activity is to acquire technology innovations, R&D initiatives, and it’s often a question in current due diligence checklists is any of the product that we’re interested in acquiring – the platform, the software, whatever it is that you’ve developed that we’re interested in – is any part of it built using open source code and perhaps there’s a lagging sort of scepticism on the part of deals lawyers to overestimate the consequences of the use of some open source packets or open source components in what’s otherwise an innovative and proprietary work. Wen, maybe you can tell us a little bit about some of the practical consequences, though if one were to develop proprietary software using a licence that require that derivative work to be made available non-commercially. |
| WW:
36:00
37:00 | In response to your general comment, David, I haven’t had a specific experience in my years as a solicitor in IP departments where clients or our M & A colleagues express caution or scepticism over open source licences. My experience in that regard has been noting the existence of those licences, but not, maybe because the due diligence was limited, drilling down into well, what’s the practical effect for one party or the other but coming back to your question, which was what happens if you’re trying to create proprietary software but using open source components? Then, I think we need to come back to what I said earlier, which is, is there a way to divide up what you contribute which may continue to be proprietary versus what is open source? Now I’ll give an example. If, for example, the software system you create is made out of. 4 components, A, B, C, D and because you want to save development effort for component D you use an open source equivalent. Then you’d look at the terms of component D and see if they bind your components A, B and C and if it does, work out a way so that you can modularise or separate the development of A, B and C, so that while you can use component D licence restrictions on component D, don’t attach to A, B and C. Thinking as a lawyer, as a commercial person, how do I take advantage of the availability of open source component D but also create something of value that I can claim ownership over and is not automatically given back to the community. |
| MG:
38:00
39:00
40:00 | And one of the things practically that I’d say to programmers, particularly those that are working on projects I’ve been part of, is to make sure that you always take a copy of the open source software that you’ve used so exactly as you received it, and also to take a copy of the licence terms. The other thing that I’ve noticed is in practise, and this is something that we do, at Barnet we’ve encouraged all developers to freely give back to the open source community. So, if we use open source software as we do in a lot of our work, we make it a point that if we find a bug or if we find an enhancement or make enhancements, we expect our developers to contribute back to the community and they do that. That’s a requirement, really, a longstanding requirement, since the very early days of Barnet and certainly it leads into what we do at Jade. So while we save a lot of time in using open source software to solve tasks, you use the example that Wen gave, getting component D for the software at the same time discoverers because we push things to the limits. We discover areas and it’s only ethically right that we give that back to the community. Whatever the open source software terms are, we just simply do that as part of the good netizen approach, and I think that’s a really important aspect and it is something that trained programmers at university, I think, are taught a little bit about, perhaps not enough about the ethics of communally built software, and often the ability to get these amazing results you see in the online world now is the result of tens of thousands or hundreds of thousands of hours of work all around the world in a whole lot of different products and then products within products. For example, the Log4j issue that plagued a whole lot of software recently, the shortcomings in the logs and the way the logs can be addressed, is reflective of how diversely used that software is in a whole lot of different applications, how embedded open source software is and software within software. So in many cases that was a component of a component in different software systems and so as the world scrambled to work out whether systems were affected, we relied upon other entities around the world saying, ‘well, log4j happens to be embedded in this software, which happens to use it,’ and you wouldn’t know from the software itself that happened. So it’s a really interesting question about does copyright have any role whatsoever to play in there or is there an overriding ethical obligation? So have you made improvements? Sure, but if you’ve made improvements that reflect the fact that you’ve had to work around a bug in the source code, is that an improvement that you should be able to claim or not? There are interesting problems about that, and interesting problems about taking open source software private, which is the bugbear of many developer communities where people create these commercial versions of open source software. What is the appropriate role? So I think, the question about open source licensing, I think there’s a long way to go in standing back from the open source licences exist to think again, about how open source licenses might work in different subject domains. One of the most interesting things recently was the so called bug found in Creative Commons, and the question is or what should happen if there was a prescience in the Creative Commons community that you’d be obliged to upgrade your Creative Commons licence from version 2 or version 1 to version 4 or 5 or 6 or whatever it is now, that problem might go away but given that the licenses created stands as that original license, what should happen? |
| DT: 41:00 | I should say for any listeners who haven’t used Creative Commons licences, to me they struck me a little bit like Incoterms. They’re very user friendly, they’re very concise licences. Anyone who’s worked with open source code before has seen, as Michael recommends to his clients, the .txt copy of the licence in the archive folder and they are, although numerous, very user friendly and a great example of demystifying and making more open and available to non-lawyers, I think. Well, we’ve had a quite wide ranging discussion today from the basics of copyright protection, when it ends and a really fruitful discussion, I think, about open source licences.I dabble with them a little bit in my corporate advisory work, but I feel like I’ve learned a lot today. Michael, if there was one thing that you wanted our listeners to take away today about copyright law or even open source licences more specifically, what would that be? |
| MG:
42:00
43:00 | I think it is, to be an effective corporate lawyer you need to have a degree of technical understanding of the subject matter domain. So if you want to practise the area of artistic copyright, you need to know something about art. If you’re doing music, you need to know something about music. That doesn’t mean you can’t pick those things up as you go, that’s one of the benefits of being a lawyer that you can discover whole new realms, but I think it’s important to start with the idea that copyright, in relation to particular types of copyright subject matter, it serves a balance between the rights and the needs and the interests of each of the participants in each of those markets. So it’s important to understand that. In the case of copyright in relation to computer software, it’s a very complex area because of the many moving parts, and it often requires an ability to get on top of expert evidence, get on top of other material to hone it in the effect otherwise, is that resolution of those disputes becomes very complex and expensive, and it can be often quite difficult. And of course there will always be the debate about originality. So, for example, a piece of software routine written in a particular functional way to achieve a particular end, there’s a debate whether or not that could be an infringement if expressed in a different form. So to wrap up is there’s the whole of unanswered questions in computer software and copyright that are quite interesting, but they’re very technical and there’s a whole lot of areas where the Copyright Act says certain things, but the application that by courts reflects the changing understanding of, to use Wen’s phrase earlier, what the authorial contribution is, and the High Court helped a lot I think in that debate by refocusing idea that at the root of copyright protection is the intellectual contribution of a human author. So the debates that we’ve had in other areas of IP law at the moment about whether robots can be named as inventer, to paraphrase, and whether that will ever come here. Most famous example in the copyright space is the chimpanzee or the orangutan that took a photo with the camera. Who owns the photo, you know, should animals have authorial rights or not, which is interesting problem, but that’s a topic for another day, I think. |
| DT:
44:00 | I think as you say, it is interesting to come back to that essential question, what is the authorial contribution but as you say in all of these different fields of artistic and creative work, you really need to understand that field of technical endeavour to understand the authorial contribution. Wen, what would your takeaway be? |
| WW: | If I was telling my younger self, how do I become better as a copyright lawyer? I think, get some experience in one of these domains. So if you’re going to advise music and entertainment clients, maybe a sucombment to a record company might be helpful or a film company. If you’re going to advise software clients, maybe spending some time at a software company would be useful and don’t just talk to other lawyers. It’s good to actually turn to the people who create these things and ask them ‘I want to know more about what you do’ because that sort of input helps you then reframe what they do into copyright terms, which is your job as a lawyer and be able to then identify what copyright assets might there be and how do I best protect them using my legal skills. |
| DT: 45:00 | Don’t just talk to lawyers, is probably good advice socially as well as professionally. Although, I have very much enjoyed this conversation with both of you lawyers. So, Michael and Wen, thanks so much for joining me today on Hearsay. |
| MG: | Thanks very much, David. |
| WW: | Thanks very much. |
| DT:
46:00 | You’ve been listening to another episode of Hearsay the Legal Podcast. I’d like to thank my guests today, Michael Green and Wen Wu from level 22 Chambers, for coming on the show. Now in today’s episode we talked about a whole range of copyright issues. Intellectual property issues can be really important for early stage companies and startups. You know, for those businesses, their original creation might be all that they have. If you want to know more about patents, trademarks and copyright, especially in that startup context, give episode 23, ‘In Search of the Unicorn’ with Richard Prangell, a listen. If you’re an Australian legal practitioner, you can claim one Continuing Professional Development point for listening to this episode. Whether an activity entitles you to claim a CPD unit is self assessed, but we suggest this episode entitles you to claim a substantive law point. More information on claiming and tracking your points on Hearsay can be found on our website. Now, even though there are less than three weeks left to go to get your CPD points, I know that you’re going to be OK. After all, you’ve got your Hearsay subscription to get all of those points whenever you like but, you know, not everyone’s so lucky. You probably work with or know a lot of lawyers who are still sitting through seminars, reading bullet points off PowerPoint slides. Give them the code ‘referee2022’, that’s ‘referee2022’ to enter at the hearsay checkout and they’ll get 25% off a new subscription. Hearsay the Legal Podcast is brought to you by Lext Australia, a legal innovation company that’s out to change how you experience the law and legal services, including CPD. Now before we go, I’d like to ask you a favour, listeners, if you like Hearsay, please leave us a Google review. It helps other listeners find us and that keeps us in business. Thanks for listening and I’ll see you on the next episode of Hearsay.
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