Would fair use mean less sport news in Oz?

There’s a lot of debate about whether to introduce a US-style “fair use” exception to Australian copyright law. Supporters argue that it will allow new free uses of copyright in the public interest. But if you read “public interest” as “the well known insatiable Aussie interest in sports news”, then maybe the answer is public interest, not so much.

The recommendations

The 2014 Australian Law Reform Commission Report 122 on Copyright and the Digital Economy and the April 2016 Productivity Commission draft Report on Intellectual Property Arrangements have both recommended the introduction of fair use as a way of increasing innovative and flexible new uses of copyright material in the public interest. They argue that some uses currently prohibited under Australian fair dealing exceptions, which are specifically designed to meet certain listed purposes, would be allowed under fair use.

Sports highlights under the Australian fair dealing regime

Australia currently has a generous fair dealing regime which allows free sampling of copyright sports broadcasts or feeds in any medium for the purposes of reporting the news, and criticism or review. Australian courts have tended to interpret these exceptions broadly, allowing use of copyright footage not only in “hard news” programs on linear broadcasts, but also in panel commentary shows and online news updates. A few years ago the Australian parliament also added a specific “parody or satire” provision to confirm that sports and other copyright material could be used for poking fun in more general entertainment formats.

The precedents established by these cases now support a robust sport reporting and commentary industry. Generally accepted reasonable guidelines of “fair” usage have been established. Recent years has seen very little actual litigation (as opposed to the routine reminders and occasional threats circulated by rights-holders during events). This relatively settled environment has endured despite the seismic shifts brought by digital and social media forms of content delivery.

Sports highlights under US fair use 

This could all change if a new general “fair use” provision replaces our existing fair dealing exceptions. Here are two reasons why.

Reason one: It will be back to square one in court.  As any lawyer knows, if a body of established case law has developed around a particular set of words in a statute, it is generally rendered redundant as binding precedent if the words are changed. So even if “reporting the news” and “criticism or review” are retained in a new statutory fair use provision as “examples” of fair use, as they are in the US fair use provision, there is no guarantee that the old Australian fair dealing cases will be relevant. This has happened recently in the UK, where fair dealing cases decided before the introduction of EU law are now to be “regarded with a degree of caution”.

Get ready for rounds of new litigation by rights-holders with very little to lose.

Reason two: US fair use law tends against fair use of sports highlights. One of the most elusive questions about grafting a fair use provision into Australian law is how Australian courts would interpret it. US cases would only be persuasive, not binding. And given our legal system lacks a First Amendment guarantee of free speech, it’s anyone’s guess as to how fair use might develop here. But if US fair use cases on sports highlights are cited, the outlook for use by non-rights-holders is not great. In a leading US case, New Boston Television v ESPN Inc (215 USPQ 755, D Mass. 1981) the court held that reporting the news could be done by reading out the scores or describing the play. There was no intrinsic need to actually show the footage. In contrast, in the Australian case of Telstra Corp v Premier Media Group, Telstra lost an injunction seeking to restrict third party online news reports using video highlights of NRL matches. To cite the judge in that case:

“Modern news journalism relies upon adequate visual images. Common sense allows me to draw the conclusion that this is not only a commercial attribute of news journalism, but is something the viewing public have come to expect.”

Meanwhile, the US approach is particularly restrictive in relation to “non-hard news” such as sports commentary and analysis shows. It is also susceptible to arguments that the non-rightsholder could have entered into a licence. According to the Australian Law Reform Commission in its analysis of fair use, if sports highlights are easy to licence from the rights-holder, then fair use is less likely to be found by a court. In Australia the availability of a licence is not fatal to fair dealing with sports highlights.

Ironically, US law might be more generous in relation to promotional sports “montages” where the use is highly “transformative”. As US sports reporters know, fair use is not really clear, particularly in the digital context.

Conclusion – an uncertain and expensive future for everyone

From a rights-holder’s perspective one might think fair use might present a welcome opportunity to narrow unlicensed use. However, to get there rights-holders will need to engage in a long period of expensive litigation with the notorious uncertainty of the appeals process. Even if they get a decision they like, the “one size fits all” nature of a general fair use provision means that other subsequent fair use cases in other areas of copyright may change the rules, as can happen in the US when the Supreme Court reviews a case.

From a non-rights-holder perspective (which every news outlet is at least some of the time) the introduction of fair use is pretty much all downside. If the ALRC is right, producers will have to licence sports highlights,  risk being sued, or simply do less highlights coverage.

And that means that, from a sports fan’s perspective, fair use may be an own goal.

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