Our gaming lawyer explains why proposed changes to fair use laws are important for anybody who wants to share a video or screenshot.
By Patrick Vuleta on June 19, 2014 at 11:34 am
Here’s a thing: Australia does not allow fair use of copyrighted materials. Sure, we have “fair dealing”, but it’s not the same. Not at all. Fair dealing is extremely restricted, and many activities you might think are OK, are actually illegal — such as creating gameplay movies and sharing screenshots, for example.
This year the Australian Law Reform Commission recommended that we switch to allowing fair use of copyrighted material. This would simply be a test asking if the use is fair, and whether it has any material impact on the copyright holder. However, Attorney-General George Brandis isn’t convinced, saying that it would possibly take income away from content creators (…like Fox News). This adds to his already questionable stance on piracy.
As with all piracy matters, it’s important to be informed on copyright, so today we’ll look at how fair use differs from fair dealing, and why gamers need fair use.
What are our current laws of fair dealing?
Australia uses a restrictive approach to determine what is fair dealing. Your use must fall into one of several narrow categories. These categories are:
- Research and study
- Review and criticism
- News reporting
- Legal advice
- Parody and satire
- Personal use of audio visual material (timeshifting and format shifting—like recording a TV show, or changing a format from .wav to .MP3)
- A few other things, mostly irrelevant (like special exemptions for schools)
Unfortunately, these are as restrictive as they sound. Many common gaming activities will not fit into a category. Just say you want to video a boss fight in your favourite MMO so fellow players can learn the mechanics. Under Australian copyright law, what you just did is illegal… unless, halfway through, you launched into an expletive-ridden tirade against the developer’s decision to not have Australian servers. Then it would fall under criticism and be fine.
The example is more than a joke. Publishers do make a bit of money from releasing official strategy guides. The growth of Youtube has—possibly—reduced the profits from these written guides. But at the same time, user-created guides enhance the community aspect of MMOs, which is what also keeps people playing (and paying). No publisher in their right mind is going to claim community-created resources are infringements.
Sensible categories promote respect for law
Naturally, there’s a difference between you publishing a gameplay video, and a company making money off eSport competitions without paying the publisher of the game used. In Korea, where eSport broadcasting is actually A Thing, this is a real issue. Blizzard has licensing agreements for the broadcasting of StarCraft 2. But by far the majority of copyright infringement is benign. This creates two problems.
First, there is a danger that any proposed “three strikes” rule, such as the one our Attorney-General wants, could trip up innocent bystanders, like those who create gameplay videos. There are currently no safeguards in place to ensure this will not happen. Copyright infringement is copyright infringement, making the three strikes proposals extremely far reaching when combined with our limited fair dealing.
Second, laws that don’t keep up with technology are at risk for being disrespected and ignored. If people are trained to laugh at copyright infringement because what they do (like creating gameplay videos) does not have any impact on the original rights holder, this tends to dull the laws when they should actually count. If you want someone to stop downloading pirated games, you need them to respect copyright law, and not have the view that it is OK to strike back because it’s too far reaching in the first place. This can only happen by treating people with respect and recognising that not everyone is out to rip off creators.
Arguments against fair use are scaremongering
Of course, not everyone agrees with me. The opposing views usually take the form of worries that it would hurt content creators and create legal uncertainty. The argument goes that because it takes about a million dollars to even respond to copyright litigation, replacing the defined categories with fair use would hurt those who want to enforce their rights.
However, defined categories hardly help certainty or reduce legal costs. With technology rapidly evolving, courts and legislators have to constantly ask themselves whether new uses are covered by the existing categories, or whether they need to create yet another new category. Legal costs will never be low however you go—litigating most piracy is extremely unprofitable for content creators. That’s why DRM is so widespread—prevention is better than cure.
The direction of our copyright laws is a worry. Not only are they dragging behind most of the world, but our legislators seem focused on red herrings and use weak excuses to avoid rectifying the situation. Most fair use of content would not make publishers any money—that’s why we don’t see most publishers monetize YouTube gameplay videos. They would if it were profitable, but they don’t. It’s perhaps the best illustration that our copyright laws, which have the sole objective of allowing monetisation of content, are too narrow. Where no monetisation exists, copyright use should be fair.
As a final note, this will be my last Legal Opinion here, at least for the foreseeable future. Market forces have me focusing on other business. It’s been fun, and I’ll be sure to rant on the forums should BioWare write out Leliana from Dragon Age: Inquisition.