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BCM113

Authors forced to choose between Freedom and Law

An explanation of Freedom & Copyright in Australia 

“Nothing can be more properly described as a man’s property than the products of his mind, and over the years a system of law has been established to protect the ideas”

BananaIP Reporter, 2018, ‘Copyright Limitations on Media Freedom’, web post, 27 November

In a world where 2.2 million books are published worldwide each year, the topic of copyright and freedom within writing naturally arises. Is there enough freedom within copyright today? What are the risks people are willing to take? Is it even relevant? The case of ‘The Little Homie’ v Shawn Carter (commonly known as Jay-Z for those less musically inclined) is a prime case that we, as copyright investigators, can use to pick apart standards and laws in Australia. 

Why Does Copyright Matter Anyway?

Copyright is defined as “a bunch of rights in certain creative works” (SmartCopy). These rights are granted exclusively to the copyright owner, who can prevent others from reproducing their work without their permission. 

When discussing Australian law, it is vital that we understand both the rights one has as well as the responsibility to publish ethically. The Copyright Act 1968 is Australia’s main legislation.

Copyright governs around 11 categories, including literature, music, sound and TV.

If You’re Having Legal Problems I Feel Bad For You Son

The Little Homie’ is an Australian retailer, created to “make learning cool for biggies and smalls” (The Little Homie, 2020). Jessica Chiha, the company founder, is “obsessed with hip-hop” (The Little Homie, 2020) and created the brand as a way of incorporating her love of R’n’B into her work.

Whilst the retailers popularity has not wavered within the past year, averaging 720 web page visits a month, the issue begins with Chiha’s use of Jay-Z’s name and lyrics within her kiddy creations.

According to a report in the Sydney Morning Herald, Chiha infringed intellectual property, “injuring the reputation and goodwill of Mr Carter”, by profiting off of his name and printing his lyrics to rap song ’99 Problems’ throughout her book. The lyric in question is ‘If you’re having alphabet problems I feel bad for you son, I got 99 problems but my ABC’s ain’t one!”. Carter owns the trademark to the name “Jay-Z” in Australia and argues that Chiha has infringed upon it. The company rejected this, claiming that the use of artists’ names does “not constitute or imply the endorsement, recommendation or approval of those persons”.

Creators must understand these issues as they influence the way authors and the training media are publishing their work. It may spark cautiousness and awareness into the legal implications of using someone elses trademark without permission.

“Licensing is a legal authorisation from you to another party that permits them to use some (or all) of your copyrighted works”

Business and IP Centre, ‘Three Reasons For Copyright Protection’, British Library, 2020, p1

How free are we really?

Freedom of speech isn’t expressly written in Australian constitution but it’s implied by the UNs Declaration of Human Rights. So why would Jay-Z be going to court over his name and some lyrics? It’s because copyright is antithetical to freedom of speech.

Whilst the internet, e-books and fan fiction open up a new world for creators, it is easy to discount copyright as a legitimate legal matter. As the Special Rapporteur acknowledges, “like all technological inventions, the internet can be misused to cause harm to others”.

Let’s focus in on our case…

As the case at hand is still ongoing, is it vital to clarify that no ruling has been made in favour of either parties, however, as we are educating and explaining, it is vital to draw educated conclusions from the Australian law we have provided to us.

Chiha claims not to have broken any standards of laws and her freedom to use a popular figures name and lyrics has thus created a challenging legal case. Adversely, if we were to argue that there is not enough freedom implied in the Copyright Act 1968, we may also say that Carter has gained international fame and therefore may be automatically utilised as a means for other platforms of entertainment. 

In the case of ‘The Little Homie v Shawn Carter’, we can already see that song lyrics and graphics are protected under the Australian legalisation, however, ideas or someone’s reputation is not.

Jay-Z is filing under the grounds that the Australian retailer is attempting to “use his intellectual property for their own commercial gain” (Bussel, 2019). So are these claims worthy under Australian copyright codes? Australian Standards of Practice- Statement of General Principles: August 2014 states that:

  • Where material refers adversely to a person, a fair opportunity is given for subsequent publication of a reply if that is reasonably necessary to address a possible breach.
  • Work must be original and the result of the author’s skill and effort

As the childrens book does indeed reference Carter by name and utilises his lyrics, one may say that this is a breach of copyright in terms of the above standards.

What are our rights as publishers?

Australian law states that we must “avoid publishing material which has been gathered by deceptive or unfair means, unless doing so is sufficiently in the public interest”.

Whilst Carter claims that the company copied his lyrics in a “glaring and flagrant way” Chiha rebuts this with her disclaimer: “any reference contained in this book to musical artists or their works does not constitute or imply the endorsement, recommendation or approval of those artists.” So can we use this as a defence for copyright in the Australian court of law? This is where our rights and responsibilites enter the chat.

What are ‘Performers Rights’?

Performers Rights basically state that the internet streaming of live performances and unauthorised use of physical work must not be copied, which therefore limits the freedom of authors but protects the artist at hand. It also vital that consent and integrity of the original work remains in tact, which one may argue is not the case with ‘The Little Homie’. E.g. Carter’s lyrics originally being “girl problems” and “99 problems but a b**** ain’t one” altered to “alphabet problems”.

We must understand that whilst there is a disclaimer on the companies site, there is something to be said about the lack of copyright protocol in terms of reproducing someone’s original physical work and utilising this for financial benefit. 

Oh no! I’ve broken copyright law! What now?

In accordance with Australian infringements, actions and remedies:

A court case or ‘civil remedy‘ may occur with outcomes ranging from the payment of damages, the delivery of infringing articles or an injunction prohibiting the further damaging of the plaintiff.

or

An individual who is guilty may be fined up to 550 penalty units or imprisoned for up to 5 years, or both. 

Are we being hindered by the laws surrounding copyright? We must ponder whether artists and writers, such as Jessica Chiha, are being wrongly affected by copyright laws, or whether their employment in Australian media is doing more bad than good.

Whilst many say that media platforms are at threat due to copyright laws, it is vital to remain true, authoritative and law-abiding in the publishing of works. It is also important that individuals have equal access to information that hasn’t been tampered with but must handle it respectfully. One may state that freedom of media and publication has been hindered by the challenging of Chiha’s use of lyrics, however, we must align with the law and the federal courts of Australia to completely ensure that no copyright infringements have occurred in order to halt any disregard or hypocrisy to the copyright laws of Australia. 

Aligning with standards and codes is the only way to avoid a copyright case and the above penalties.

How can I do my part to publish responsibly?

Now the distinction between law and ethics needs to be established. Ethics are the principles and guidelines one uses to guide themselves through what is right and wrong while, adversly, law is a systematic regulation governed by an authority such as government.

Whilst Chiha may not be found guilty for copyright against Carter, it could be seen as morally and ethically wrong to use someone’s name and lyrics without their written permission for monetary gain. As previously stated, ethics and law must be distinguished, however there is a clear interplay and interaction between the two. 

So why do some reporters and columnists seem ready to steal the words of others? Why do those same people take umbrage at others lifting their work? Is it an easy way out of the hard-wrok that comes with respected reporting? The answers to these quesitons lie within a lack of ethical guidance and the true lack of care for the reprecussions of copyright infringement. The same could be said for aspects of the case study we’ve looked at. The most important advice to take away from this explainer is that by following the guidelines and laws provided by our Australian acts and standards, you can produce strong, truthful and respected works with a greater understanding of your rights and responsibilties in the publishing world.

Plagiarism offends the values of honesty, fairness, independence and respect for the rights of others

Pearson & Polden, 2015 ‘The Journalist’s Guide to Media Law, 6th Edition’, Queensland, p 407

References

Pearson & Polden, 2015, ‘The Journalist’s Guide to Media Law, 6th Edition‘, Queensland, p407, viewed 20th April 2020

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