What the Kookaburra vs Down Under case reveals about copyright in Australia:
- Copyright terms are absurdly long;
- Copyright law is used to stifle creativity against the public interest;
- There’s presently insufficient protection for homages or references in music.
Regarding the first – this is a 2007 case about a 1981 song that referenced TWO BARS of a 1934 round. This is absurd. What possible commercial right should the publishers of a 1934 song have had in 2007? Why should Australian legislation, passed by Australian governments supposedly representing the public interest, grant a corporation a monopoly to control a popular folk song almost fifty years after it was written?
Secondly – if copyright law had been understood in 1981 to deprive an Australian artist of musically referencing part of our cultural heritage, then that simply wouldn’t have happened – they’d have left the reference out. How would that have been in anyone’s interest? Surely it’s better for Australia if our artists are free to reference other cultural works without punitive consequence. Why on Earth – apart from mainstream politicians’ cowardly and corrupt deference to the lobbying dollars of the content industry, obviously – would we pass laws to punish them for doing so?
Thirdly, it is clear that the reference was not a parasitical “copy”, it was an homage. It was two bars in a three minute song. It referred listeners to the other song, rather than taking an audience from it. It was exactly the sort of thing that is part of a healthy creative environment in any medium, from book to film to television to music; from literature to satire. I mean, seriously, how did Men At Work’s reference to the old song in any negative way impact on the right’s holder’s commercial rights under the monopoly that should have long since expired? If anything, the reference reminded contemporary listeners of the original material, and enhanced its standing and importance for a new audience.
As Colin Hay from Men At Work ,argued:
I believe what has won today is opportunistic greed, and what has suffered, is creative musical endeavor.
This decision is an indictment on the state of copyright law in Australia. If our politicians were in the slightest bit interested in preserving a thriving creative culture in this country, they’d be looking seriously at reforming it – at tidying up the parts that have been used to come to this absurd decision, and at significantly reducing the ludicrously extensive terms they’ve granted at the behest of corporate IP interests.
They won’t, of course, and we all know why.
