In a recent post, Matthew Francis said:
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In an ideal world writers would make a living
without copyright and everyone would cannibalize everyone else's work, which
I think would be more conducive to creativity. But as it is, we need it. I
don't know exactly what the legal definition of fair use is, but in a public
forum like this it seems an infringement of Muldoon's rights to quote the
whole of one of his works. I know I would be annoyed if someone did this to
one of my poems without my permission.
On the other hand, I agree that the issue sometimes gets taken too far the
other way. Today I gave a lecture on contemporary poetry and was not allowed
to give out photocopies of the poems to my students. I can't see why this
should apply in a limited group for educational purposes.
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The answer is because when you multiply this one instance by the fifty
thousand or so instances that occur every year in Australia alone, you are
depriving many poets of thousand of dollars of income overall from book
sales. Educational sales have traditionally been a large proportion of
poetry book sales; the spread of cheap photocopying equipment in schools
and universities is gutting that market.
The Copyright Agency Limited, a non-profit organisation which collects fees
for photocopying in Australia, is mounting a case to obtain fair
remuneration from this widespread form of piracy this week in an Australian
Federal court. Here's what they have to say (courtesy Melissa Willan, CAL):
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Owners of copyright in works have the exclusive right to do certain things
with their material, including:
*reproduce the work (including by photocopying, scanning and hand copying);
*make the work public for the first time; and
*make an adaptation of the work.
This means that anyone who wants to use copyright material in any of these
ways needs the copyright owner's permission.
The Australian Copyright Act (the Act) has a number of fair dealing
exceptions to these exclusive rights. They are fair dealing for the purpose
of research and study, criticism or review, reporting the news, judicial
proceedings and legal advice. Copying in reliance upon these exceptions is
permitted without payment of any fee.
The Act also creates compulsory licences in favour of several categories of
organisations, including educational institutions. Compulsory licences are
a compulsory acquisition from the copyright owner of any one or all of the
above exclusive rights. In the case of the educational statutory licence, it
is a compulsory acquisition on behalf of educational institutions of the
right to reproduction. A compulsory licence is subject to the payment of a
royalty, described as "equitable remuneration" in the Act, and to certain
other conditions.
The rationale of the Australian government in creating a compulsory
copyright licensing system is to draw a legislative balance between the
rights of the copyright owner and the interests of the public. The
educational statutory licence seeks to balance the desire of educational
institutions to access copyright material for instructional use and the
right of the copyright owner to equitable remuneration.
The educational statutory licence allows copying of "reasonable portions" of
a work for educational purposes, subject to payment of equitable
remuneration to the copyright owner.
The copying limits of the licence are set out in the Act and are expressed
in quantitative terms. A "reasonable portion" of a work, published in an
edition of more than 10 pages, is 10% of the number of pages in the edition
containing the work; or a chapter, where the work is divided into chapters.
The extent of permitted copying also varies depending on the market
availability of the work. Thus, an entire work may be copied if:
*It is an article in a periodical such as a journal, newspaper or magazine;
*It is a work fewer than 15 pages published in an anthology ("anthology
provision");
*It is not separately published; or
*The person making the copy is satisfied, after reasonable investigation,
that a copy of the work is not available within a reasonable time at an
ordinary commercial price.
The majority of poems are under 15 pages and therefore may be copied under
the anthology provision. It should be noted that the anthology provision
works side by side with the reasonable portion test, thus allowing
educational institutions to copy 10% of a poetry anthology. This could lead
to an educational institution copying a significant corpus of a poet's
works.
In 1985 the Copyright Tribunal (Tribunal) set the per page rate of 2 cents
for the copying of works by educational institutions under the educational
statutory licence. This rate did not cover poetry copying, as the anthology
provision outlined above did not become law until 1990.
The Copyright Agency Limited (CAL), the collecting society declared by the
Attorney General for the copying of works by educational institutions, has
applied to the Tribunal to set a rate for educational copying under the
statutory licence, including differential rates for some types of copying
(such as poetry copying). The Tribunal is currently hearing this matter.
It is CAL's submission that the rate of equitable remuneration for poetry
should be higher than that for general copying. The copying of poetry
results in a useable copy of a whole work which severely restricts the
market for purchase of copies of the work. Poetry is particularly
susceptible to copying, and that copies of whole poems (often several on a
single page) are used to great educative effect.
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from John Tranter
Editor, Jacket magazine: http://www.jacket.zip.com.au/
- new John Tranter homepage - poetry, reviews, articles, at:
http://www.austlit.com/johntranter/
- ancient history - the late sixties - at:
http://setis.library.usyd.edu.au/tranter/index.html
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39 Short Street, Balmain NSW 2041, Sydney, Australia
tel (+612) 9555 8502 fax (+612) 9818 8569
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