Copyright infringement: Will American copyright laws “let it go”?
4 mins reading time
While not widely reported, a story circulated last month of police officers in Santa Ana, California, playing Disney tunes through their vehicle PA system.
This was not some kind of Blue Light disco though. Instead, the music was being played to prevent video footage of the incident from being uploaded to YouTube. When challenged over why he was playing Disney music, the police officer responded:
“Why? Because it will be copyright infringement for him,” pointing at the camera.
It’s not the first time that this type of tactic has been employed by some US police forces to try to inhibit public reporting and scrutiny of their work.
treatment under australian copyright law
So, from an Australian copyright perspective, would this work? Let’s unpack it.
Basics of copyright in music
Copyright in music is complex. The composition will be protected as a musical work, which protects the composition. If there are lyrics, those will be a separate literary work. Where a performance of those musical and literary works has been recorded, then that will constitute a sound recording which is also protected by copyright.
The owner of copyright in a musical work and literary work has the sole right (among other rights) to:
- reproduce the work in a material form; and
- communicate the work to the public.
Similarly, the owner of the copyright in the original sound recording has the sole right to:
- make a copy of that sound recording;
- to cause the recording to be heard in public; and
- communicate the recording to the public.
Barring any exceptions or defences, the filming of the incident and uploading of that footage to YouTube would infringe those rights. But incidentally, so would the police officer’s initial conduct in playing the Disney tunes through the police car’s PA system.
Exceptions and defences
Things get more interesting when we start looking at exceptions and defences. Under section 42 of the Copyright Act 1968 (Cth), copyright in a musical or literary work is not infringed through a fair dealing for the purpose of, or associated with, the reporting of news. There is a proviso: the musical work must form part of the news being reported. That is, it cannot have been added in later.
A similar exception exists in section 103B in relation to fair dealing with audio-visual items (eg Disney’s original recording of its song). Section 103B does not include an express proviso that the sound recording must form part of the news being reported.
With the increased scrutiny of police conduct that has arisen through the Black Lives Matter, combined with the prevalence of citizen journalism, it is likely that the filming of police operations for the purpose of uploading that footage to video sharing sites would constitute the reporting of news. If music happens to be an inherent part of the scene that is being filmed, rather than something that is added in later for dramatic effect, then its inclusion should be exempt from fair dealing.
The sole infringement arising from the whole scenario would be the police officer’s conduct, in broadcasting the music in the first place.
dealing with the youtube AI
Of course, this does not mean that YouTube’s AI might not flag the video as potentially infringing. It is the prerogative of private businesses providing video sharing services as to how risk averse they will be. More than 500 hours of video is uploaded to YouTube every minute, so human moderation of copyright issues is impossible, at least at the initial stage. So maybe the Santa Ana police officer’s tactic will work after all.
the take-away
Australia’s copyright exemptions fall into specific categories, unlike the US’s broader “fair use” exemption. They are best navigated with care to ensure that the conduct actually falls within their scope.
While Macpherson Kelley’s IP team can advise on copyright infringement, some team members may even be able to belt out their favourite Disney tune.
The information contained in this article is general in nature and cannot be relied on as legal advice nor does it create an engagement. Please contact one of our lawyers listed above for advice about your specific situation.
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Copyright infringement: Will American copyright laws “let it go”?
While not widely reported, a story circulated last month of police officers in Santa Ana, California, playing Disney tunes through their vehicle PA system.
This was not some kind of Blue Light disco though. Instead, the music was being played to prevent video footage of the incident from being uploaded to YouTube. When challenged over why he was playing Disney music, the police officer responded:
“Why? Because it will be copyright infringement for him,” pointing at the camera.
It’s not the first time that this type of tactic has been employed by some US police forces to try to inhibit public reporting and scrutiny of their work.
treatment under australian copyright law
So, from an Australian copyright perspective, would this work? Let’s unpack it.
Basics of copyright in music
Copyright in music is complex. The composition will be protected as a musical work, which protects the composition. If there are lyrics, those will be a separate literary work. Where a performance of those musical and literary works has been recorded, then that will constitute a sound recording which is also protected by copyright.
The owner of copyright in a musical work and literary work has the sole right (among other rights) to:
- reproduce the work in a material form; and
- communicate the work to the public.
Similarly, the owner of the copyright in the original sound recording has the sole right to:
- make a copy of that sound recording;
- to cause the recording to be heard in public; and
- communicate the recording to the public.
Barring any exceptions or defences, the filming of the incident and uploading of that footage to YouTube would infringe those rights. But incidentally, so would the police officer’s initial conduct in playing the Disney tunes through the police car’s PA system.
Exceptions and defences
Things get more interesting when we start looking at exceptions and defences. Under section 42 of the Copyright Act 1968 (Cth), copyright in a musical or literary work is not infringed through a fair dealing for the purpose of, or associated with, the reporting of news. There is a proviso: the musical work must form part of the news being reported. That is, it cannot have been added in later.
A similar exception exists in section 103B in relation to fair dealing with audio-visual items (eg Disney’s original recording of its song). Section 103B does not include an express proviso that the sound recording must form part of the news being reported.
With the increased scrutiny of police conduct that has arisen through the Black Lives Matter, combined with the prevalence of citizen journalism, it is likely that the filming of police operations for the purpose of uploading that footage to video sharing sites would constitute the reporting of news. If music happens to be an inherent part of the scene that is being filmed, rather than something that is added in later for dramatic effect, then its inclusion should be exempt from fair dealing.
The sole infringement arising from the whole scenario would be the police officer’s conduct, in broadcasting the music in the first place.
dealing with the youtube AI
Of course, this does not mean that YouTube’s AI might not flag the video as potentially infringing. It is the prerogative of private businesses providing video sharing services as to how risk averse they will be. More than 500 hours of video is uploaded to YouTube every minute, so human moderation of copyright issues is impossible, at least at the initial stage. So maybe the Santa Ana police officer’s tactic will work after all.
the take-away
Australia’s copyright exemptions fall into specific categories, unlike the US’s broader “fair use” exemption. They are best navigated with care to ensure that the conduct actually falls within their scope.
While Macpherson Kelley’s IP team can advise on copyright infringement, some team members may even be able to belt out their favourite Disney tune.