Down, Kookaburra, Down

By skepticlawyer

I learn via the Hoydens that the Federal Court (oh, the stupid, it burns) has decided that Men at Work’s Down Under infringed the copyright held by the owners of Kookaburra Sits Under the Old Gum Tree. Here are a few observations from a lawyer who has handled some small IP matters.

1. IP law is rapidly becoming a laughing-stock. IP ‘rights’ (choses in action par excellence) are intangible property rights typically conferred in the form of temporary monopolies. As any economist can tell you, monopolies — especially monopolies backed by the coercive power of the state — are pretty nasty creatures when it comes down to it. You don’t want them hanging around for too long. That’s why — depending on jurisdiction — patents and trademarks are either strongly time-limited (between 10 and 16 years for most patents) and subject to registration and set all about with fever trees (trademarks). IP law exists to facilitate innovation, to reward the clever scientist or gifted writer. Taken too far, however, IP protection stifles innovation — making it harder, not easier, to make new things — and becomes a cash cow for a certain type of lawyer and a certain type of IP owner. 

Copyright is the worst of the lot. It requires no registration and lasts for the life of the author plus 70 years. Yes, your grandchildren — if you do well with a novel or song — could be living high on the hog once you’ve popped your clogs. It used to be life plus 50 years, but of late, the IP types have become rather greedy.

2. Property law is only any good if it can protect the interest in question. As IP’s ability to protect intangible property rights has waned thanks to technological changes, IP owners have become increasingly silly about defending what they have. This has manifested itself in various nasty legal and economic ways. There’s Australia’s parallel importation rules on books, for example (which help only publishers, not authors). Unfortunately, explaining this basic fact to authors seems to fail on account of Australian authors’ widespread inability to do sums or to understand the concept of competition. Then, of course, there’s price discrimination, of which DVD regions are a prime example. Now we have a corporation suing in the name of a creator who died in 1988. That means Men at Work — if this decision stands — will be paying out until 2058.

In my view, copyright should expire with the author. This ‘life plus 70’ crap is an invitation to abuse and prevents the timely release of useful information and data into the public domain. It also encourages abuse in the opposite direction: witness the army of people out there who decide the whole thing isn’t worth their trouble and just partake in illegal downloading of all stripes.

A bit of basic lawyering for you:

A big part of compliance with the law is the respect of the citizenry for that law. This respect — call it morality — exists wholly outside the law and is independent of the law. The law against murder, for example, works largely because most people believe murder is wrong, not because of the law against it. In other words, law only works at the margins, which is exactly where you want law to work. If law has to do ‘moral work’ across the whole society, we’ll rapidly finish up with a ratio of one citizen to one policeman, with each cheerfully bribing the other non-stop. By engaging in such blatant gouging, IP regimes are rapidly losing the respect they require in order to operate. Eventually, the law of diminishing returns will come into play and the entire IP system — including the good bits, the bits that reward innovation — will go tits up in a big way. When it comes to music and movies, I suspect we’re not far away from that point.

The one sliver of silver lining in this matter is the fact that it’s single judge only. Let’s hope the full bench of the Federal Court rolls it on appeal.

UPDATE: Robert Merkel’s take, an interesting perspective from a scientist, not a lawyer.


  1. Posted February 5, 2010 at 8:14 am | Permalink

    Surely there has to be some time limit here???

    Does it make a difference that the claim is 30 years later?

    (Assuming they won’t appeal) What can Men At Work be expected to do? I think you could put forward a strong argument saying “Sorry, we didn’t think this was a breach. We’ll change it from now on. But we aren’t going to pay you any compensation – you should have raised this with us in 1980”

  2. Posted February 5, 2010 at 8:52 am | Permalink

    IP is a toss. The constant efforts to force feed us the utterly constructed link between the moral value we place on respecting people’s corporeal property and the preservation of monopolies on particular ideas is crude, even offensive.

    This case is grasping and offensive, larrikin records deserve some backlash.

    I just don’t get how that flute riff can be seen as theft of ‘the expression of the idea’ in KSITOGT. 10 notes are the same, but in the latter the melody is immediately repeated a major third below, the two lines working together to create the melodic effect, while in Down under it is the climax of a bridging riff that then resolves into an almost unrelated verse.

    But I’m sure the judge involved had as much of a musical ear as Barwick had an eye for art.

  3. Posted February 5, 2010 at 9:08 am | Permalink

    It does not help that there is no clearly determinative economic theory on this either. The problem being that before the fact we want to encourage people to create things, after the fact we want as much access as possible and access can be so easily and cheaply arranged without degrading the thing itself. Which is directly connected to the difficulty in matching legal property rights to economic property rights.

    Allowing anyone to use a farm that someone has cleared and made productive would clearly degrade the farm. Allowing anyone to play “Down Under” does not degrade the song. But putting fences around a farm (and enforcing them) is clearly lot easier than putting fences around “Down Under”.

    But this decision does seem to wander off into la la land since it is not even all that clear that the original song is being used in any meaningful sense anyway.

  4. John
    Posted February 5, 2010 at 9:42 am | Permalink

    My understanding is that recent extensions to the term of copyright have come out of the US-Aus free trade agreement. In the US, Mickey Mouse is protected by copyright (created by Walt Disney), and every time the term of the Mickey Mouse copyright is about to expire, the US congress extends it a bit more… Could be completely wrong, but interesting story if I’m not!

  5. Patrick
    Posted February 5, 2010 at 10:24 am | Permalink

    When it comes to music and movies, I suspect we’re not far away from that point.

    lol that’s just because you are old already skepticlawyer, we have definitely reached that point already.

  6. Posted February 5, 2010 at 11:23 am | Permalink

    John. There were copyright issues with the Oz-US free trade agreement. The US is big on IP in such agreements because things covered by IP (games, films and porn) are their biggest exports.

    And there is something to the Mickey Mouse story.

    Patrick: be nicer to your elders 🙂

    There are some fascinating twists in all this. Some artists (such as Prince) seem to understand the Internet is naturally a billboard. There was a fascinating case some time ago when Baen Books put On Basilisk Station up on their website as a free e-book and it promptly hit the NYT bestseller list: i.e. in versions people paid for.

  7. Posted February 5, 2010 at 11:27 am | Permalink

    we have definitely reached that point already

    Not while they can still pull stunts like this, alas.

    It really is poor.

    Brought across from LP: The idea, Darryl, is to make the system work as a defacto statute of limitations. It’s a long-standing equitable maxim — one that the common law has borrowed — that parties who sit on their rights lose them (it’s often referred to as laches in judgments, a lovely word that should be better known). Copyright allows people to navigate around this principle, to the detriment of the law generally.

    The virtue of either (a) a term limit or (b) expiration on death is simplicity. Both have disadvantages, but these are greatly outweighed by their advantages over the current system. The disadvantages of term limits have been raised by Fine in her comments. Chris has addressed the disadvantages of expiration on death. In terms of legal reform, some economic modelling is necessary in order to work out which law hurts the least. No law is perfect, and very often attempts to ameliorate minor harms can have the effect of undoing the positive benefits that accrue to developing a simple ‘bright line’ rule.

    Taking a preliminary view, I am more persuaded by Fine than by Chris. That is, I think that while the great author who writes something fabulous a year before his death loses out, the documentary film-maker who has another 30 years to live loses more, so I plumb for ‘expiration on death’. This is, of course, a preliminary view.

  8. conrad
    Posted February 5, 2010 at 11:43 am | Permalink

    Just out of interest, why is it that things like books and songs get these really long periods where people can’t copy them, but things like drugs don’t?

  9. Posted February 5, 2010 at 1:37 pm | Permalink

    Drugs are worse from what I know, they get exclusivity for a defined period under patent law. Maybe someone who knows what they’re babbling about can expand, but that’s my understanding. Hence the astronomical cost of new, sought after, drugs. Other companies can be kept out of the competition.

    By contrast with copyright it’s about paying royalties, others can release the product… (senses he’s swimming, waits for lifering).

  10. Nick Ferrett
    Posted February 5, 2010 at 5:01 pm | Permalink

    At least in the case of drugs there is some demonstrable benefit to the exclusivity which patent laws provide. It’s true to say that patent law keeps the cost of drugs high, but it’s justified by the fact that the drugs wouldn’t be invented at all if there was no capacity to recoup the cost of their development.

    With works of art (such as novels, music and movies), the demonstrable benefit is much harder to identify. There are plenty of people producing works of art who are paid little or nothing to do it. Think of all the painters, novelists and actors who work other jobs so they can do it. There is no real case to be made that our cultural life would be stunted but for copyright. Indeed, there is a strong body of art that economic deprivation of those artists is an important inspiration for their work. It might mean that we be without the Hollywood blockbusters (which, incidentally, I love), but it is hard to say that our cultural life would be the poorer for that; it would just be different.

    So the only justification for copyright where the artist is concerned is to ensure that the artist is able to exploit his/her work for economic gain. Perhaps on the margins it encourages innovation, but not of the kind which demonstrably improves society so as to justify the monopoly (as skepticlawyer correctly calls it). The artist has time to concentrate on his/her art and perhaps to produce more of it, but is there any evidence anywhere that wealthy artists innovate more than poor ones? My suspicion is that most of the innovation is around the margins rather than at the wealthy core.

    There is another incidental point to be made: Most artists never make it big. They see very little return from their efforts. Whilst it might be said that this is a function of the fact that most are not very good, this is an ultimately subjective judgment. And it’s one often made by studio and record execs who (assuming you’d trust their taste anyway) are motivated not by artistic merit but by their judgment as to what will make them money. Their judgment as to what will make money will, by definition, never be based on whether something is innovative, but by whether it has worked before. In other words, commercial success in those industries is driven by the very opposite of innovation – rehashing ideas which have previously yielded success.

    If a drug company conducts research and creates a new medicine which cures an ill, it demonstrably improves wealthy societies in the short term, and the lives of everyone over the longer term. If an electronics company invents a new appliance which makes people more productive at work, there is a demonstrable benefit. If a motor vehicle manufacturer invents a new manufacturing process which makes their cars safer or cheaper of more fuel efficient, there is a demonstrable benefit.

    If someone makes a new movie, or writes a new song, a lot of people will like it, it’s a lot harder to say that someone’s life is better as a result, particularly since poverty and lack of expectation of financial reward doesn’t obviously deter innovation in such fields.

    Of course, there is another side to this: would we have faster computers, faster internet, better TV’s and the like if there wasn’t some commercial motive such as delivery of content behind it. Have to think about that point before I develop it.

  11. Peter Patton
    Posted February 5, 2010 at 5:21 pm | Permalink


    In my wild ‘SE Asia on a Shoestring’ days, I hooked up with an American girl who was in between college and Chicago Law School. We got talking about the costs of US higher education, so I asked how she was affording the ‘folly’ of travel, with over $100,000 in fees on top of the 4 years she’d just spent at Stanford!

    She said the travel was free as she had just come into her great-grandfather’s “invention” trust-fund. His invention Snap buttons!

  12. Posted February 5, 2010 at 10:28 pm | Permalink

    To be fair, the snap buttons would have been protected by a patent or design regime (depending on a few legal factors, which I won’t go into here). Both patents and designs are quite seriously time-limited — between 10 and 16 years — and always have been.

    What her great-grandfather did was invest the money from his invention wisely, and thus provide for his family using the miracle of compound interest and the law of succession, which is what all holders of temporary IP monopolies ought to do, rather than simply using the legal instrument to gouge the rest of us on an ongoing basis.

  13. Peter Patton
    Posted February 6, 2010 at 6:45 am | Permalink

    SL. I hadn’t thought of it like that, thanks. Not they I held it against it for even a second. I just wondered how I might go about getting some copyright/patent! 🙂

    I like your point about copyright becoming a legal right to monopoly, but especially your broader jurisprudential point about laws needing the respect of the citizenry.

    This Kookaburra copyright fails your ‘respect of the citizenry’ test. As a non-lawyer, but somebody whose work involves making commercial deals and signing contracts, this story stinks to high heaven. Even we laypeople start shaking our heads, mumbling “it ain’t right” when we read this story.

    I can imagine twists on this case when I would have a lot more sympathy for the copyright holder. If, for example, some huge corporation used some of Keith Richard’s guitar riffs (Satisfaction, Sympathy For the Devil) in television commercials without paying a cent or even contacting Richards’ people, my visceral reaction would be that the corporation had committed some sort of wrong.

    Isn’t there some law against ‘unjust enrichment’? The current copyright owners – Larrikin Music – not only did not create the Kookaburra song, but paid only $6,000 for it, and even then only as recently as 1990. I also hope an appeal is successful.

  14. Posted February 6, 2010 at 7:58 am | Permalink

    Reminds me of the old joke about a musician who was caught counterfeiting banknotes. He claimed he wasn’t forging them, but “paying a tribute” to them ….

    They told it much better on Good News Week (ABC version) …..

  15. Nick Ferrett
    Posted February 6, 2010 at 9:17 am | Permalink

    A letter writer in the SMH this morning suggests that Men at Work re-record the song without the flute riff to raise money to pay the legal bills. I think that’s an excellent suggestion.

  16. Posted February 6, 2010 at 1:50 pm | Permalink

    It’s true to say that patent law keeps the cost of drugs high, but it’s justified by the fact that the drugs wouldn’t be invented at all if there was no capacity to recoup the cost of their development.

    Except that more of the profits from those drugs are spent on advertising them in the USA than on actually developing new ones.

  17. Posted February 6, 2010 at 1:57 pm | Permalink

    Both patents and designs are quite seriously time-limited — between 10 and 16 years — and always have been.

    As a software engineer, I do not see 10-16 years as being “seriously time-limited”. In my industry that’s a geological age.

    Copyrights are actually useful because we can generally show what was made by whom. It also forms the basis of free software, which uses copyright law as its legal foundation.

    But software patents are a vile abomination that have spawned nothing but wasteful arms races and patent trolls. If there was a button to abolish all of them immediately I would mash it with great enthusiasm.

  18. Nick Ferrett
    Posted February 6, 2010 at 2:14 pm | Permalink

    Jacques @ 17, you can’t recoup and make a profit if you don’t sell. The point of recouping is to cover past expense not to cover the cost of the next investment.

  19. Posted February 6, 2010 at 7:35 pm | Permalink

    Jacques, it gets worse than that. For a whole range of silly historical reasons that I can’t be bothered to go into here, computer programs fall under the same regime as songs, literature and art… that’s right, copyright. Which means life + 70 years.

  20. Posted February 6, 2010 at 8:59 pm | Permalink

    Software largely falls into two categories: bespoke and mass-market. Bespoke is generally never released and so copyright is irrelevant. Mass market has a half-life of profitability measured in years, not decades, so copyright is irrelevant.

    The main problem copyright poses in the software world is orphaning. Software companies routinely go broke; often their assets — which include the source code — get bought out during the receivership process and then vanish forever. Nerds find this utterly maddening. The classic example is the fate of BeOS.

  21. conrad
    Posted February 7, 2010 at 4:12 am | Permalink

    “For a really interesting look at the way in which music builds on what has gone before and the unfairness of the copyright regime, see RIP, a remix manifesto – a great documentary”

    I’ve seen Re-mix, and I can’t help feeling sympathy for some of the more modern artists, especially if the songs are getting resold (alternatively, I couldn’t care less about them doing it at dance parties). I think it must some sort of over-the-limit usage of sampling that does it — If you just play two songs on top of each other, they’re totally identifiable, and if you know both songs, I wouldn’t be surprised if your perception separates them. This to me is quite different to pinching a riff and changing it so that 99.9% of the population can’t identify it.

  22. Posted February 7, 2010 at 8:01 am | Permalink

    Hear hear well said. There seems to be a an opinion that copyright should extend further. Consider this together with tactics by which traditional remedies are then patented and the like and you’re witnessing a strategy whereby certain interests would own all intelectual property. And, as corporations are not mortal at least insofar as we are, you could witness cultural stagnation that’d make Imperial China look like 20th century New York
    Unfortunately, explaining this basic fact to authors seems to fail on account of Australian authors’ widespread inability to do sums or to understand the concept of competition.

  23. Caroline Storm
    Posted February 8, 2010 at 9:00 am | Permalink

    Wasn’t this settled millenia ago?

    When ‘Omer smote ‘is bloomin’ lyre,
    He’d ‘eard men sing by land and sea,
    And what ‘e thought ‘e might require,
    ‘E went and took–the same as me.

    They knew ‘e stole; ‘e knowed they knowed,
    They didn’t tell nor make a fuss
    But winked at “omer down the road,
    An’ ‘e winked back–the same as us.
    Rudyard Kipling

    Or, a little closer to us:

    Immature poets imitate; mature poets steal. T. S. Eliot

  24. Excaliburman
    Posted February 8, 2010 at 10:55 am | Permalink

    As another lawyer with some modest knowledge of IP law I broadly agree with Skepticlawyer that IP has gone too far. People have certainly lost all touch with its underpinning purpose being to encourage creativity.

    Whilst protecting IP is fudamentally imporant to ensuring creativity, too much unqualified protection appears to have the opposite effect, and it is not unknown for businesses to acquire competing IP and then bury it, thus effectively stamping out creativity. This is nuts.

    The present case, however, I think has been decided fairly to this point. The evidence was clear that the brief passage from Kookarra was deliberately and knowingly included as one of the many Australian iconic cliches included in Down Under. I can’t see how it can be described as unfair that it be acknowledged and its use properly rewarded. The question as to how much of Down Under’s success should be attributed to this modest copyright breach is another matter, but before people get up in arms about it, surely they should wait to see what the court finally decides. The judges comments on this aspect suggest any final award is likely to be relatively minor.

  25. Peter Patton
    Posted February 8, 2010 at 11:30 am | Permalink


    I’d be very interested in your take on what should happen to the copyright to JD Salinger’s Catcher in the Rye now that he is dead.

  26. Nick Ferrett
    Posted February 8, 2010 at 4:39 pm | Permalink

    I can’t agree that IP protection is fundamentally important to ensuring creativity. There were a lot of big ideas before IP protection came along.

    I think there is a fundamental difference between protection of works of art through copyright and protection of commercial innovations through patents etc.

    The former can really only be justified by saying that the creator deserves the capacity to be rewarded for the creation. Why that should be so without any demonstrable public benefit is not clear.

    The latter can more readily be justified on a public policy basis in that innovation tends, over the long run, to improve many lives (development of new drugs being the most obvious example). The granting of a monopoly is an incentive to provide a long term public benefit.

  27. Posted February 8, 2010 at 5:02 pm | Permalink

    In economic terms, it’s much harder to prove that there are positive neighbourhood effects (or ‘externalities’) from music or literature or corporate trademarks than there are from patents. A few thoughts (somewhat stray):

    1. Trademarks can be helpful when it comes to guaranteeing quality. Few people realise that — before trademarks became the norm — brands (or an equivalent) were used in various historical societies to show that product hadn’t been adulterated (milk or wine not watered in antiquity, cereals not mixed with sand etc). In Britain, this is one reason why Quakers were heavily involved in the development of brands and in early trademark law. The benefit of registered trademarks is that ‘harms’ accruing due to poor quality accrue in a nice direct way to the trademark holder, and thence influence other factors, like the share price.

    2. Patronage can be as effective in providing income to creative artists as copyright, and may actually generate more positive externalities. In some respects the blandness and constant rather twee attempts to shock in much modern art have come about because there is but a single patron for much modern artistic output (the state, in the form of grants to writers and artists etc).

    3. Some creative output is sensitive to economic incentives. I know I wouldn’t write if I didn’t think I could earn money from it. In Samuel Johnson’s words, ‘nobody but a fool writes, except for money’.

    4. Now that Salinger is dead, the copyright to Catcher should expire. I think there are good reasons to expend copyright on death (although there are also good arguments for term limits, too). I am very uncomfortable with the thought that family members can ‘inherit’ my IP. I wrote The Hand when I was 20, FFS, and I’m not exactly old and I’m working on something else now.

  28. Nick Ferrett
    Posted February 8, 2010 at 5:32 pm | Permalink

    SL, if you’re writing journal articles or textbooks, you’re providing a lawyer like me with something useful. You are saving me time by providing me with research which I would otherwise have to go off and collect for myself. It means that when I advise a client, I expend less effort and can charge my client less.

    Copyright over technical works is easily justified because it provides a demonstrable benefit other than to the author.

    I suppose you could analogise to say that music and other media content provide some demonstrable economic benefit because radio, tv and other media outlets require that content to attract listeners/viewers and they provide valuable services such as news and advertising, but that model has developed largely because of the monopolies. It wasn’t a reason for the monopolies. Radio and TV weren’t developed because people hoped to broadcast copyrighted content. Who is to say how radio and TV would have developed without the extent of protection provided by copyright?

    [ADMIN: Fixed]

  29. Posted February 8, 2010 at 5:45 pm | Permalink

    Radio and TV weren’t developed because people hoped to broadcast copyrighted content. Who is to say how radio and TV would have developed without the extent of protection provided by copyright?

    Now that is a fascinating $64,000 question…

  30. Nick Ferrett
    Posted February 8, 2010 at 6:17 pm | Permalink

    The other interesting aspect to this topic is the way that copyright is breaking down as a meaningful protection in the face of illegal downloading from the web. The acknowledged effect on the music industry is that whereas once bands went on tour to promote album sales, now they release albums as an excuse to go on tour. They make much more of their income from touring these days.

    At a visceral level, that strikes me as a good thing. They actually have to keep working to keep earning a living.

    The plunging revenues for CD sales are yet to demonstrate any particular downturn in the number of people gagging to be rockstars.

  31. Posted February 8, 2010 at 6:34 pm | Permalink

    Just thought of something evil, that would touch on competitive advantage of nations. A thought experiment.

    Imagine a politician comes up with a brilliant policy (yeah, hypothetical, vanishingly small chance of ever being realized sez me in more despairing mode), especially one that would work best if other nations did not apply the same policy.

    Could that policy, super-generalized the way other IP is often framed, be patented or whatever? If other governments ignore that IP (without paying a licence), then governments can happily ignore ANY IP… or strike down anything that lets such IP become prohibitive. (I’m thinking all the stupid IP on “business process” or “obvious algorithms” here).

  32. Patrick
    Posted February 9, 2010 at 5:45 am | Permalink

    That would be nice in principle, Dave, but in practice countries sign up to detailed and extensive multilateral (WTO, TRIPs) and bilateral (FTAs mainly) treaties which largely preclude that.

    But fear not, IIRC the US Supreme Court has a business process (and indeed I do recall correctly!).

    My completely uninformed and amateur reading is that the US SC is likely to be unimpressed, so you might be very happy. But I could easily be wrong (and you disappointed!).

  33. Miss Candy
    Posted February 9, 2010 at 7:33 am | Permalink

    I think you guys have really missed something here, which is the moral dimension of copyright law, as opposed to patent law.

    The – often true – assumption behind copyright law is that artistic works are an expression of a person’s identity. Thus copyright is about identity, and therefore control over how that work is used and its reflection of the author’s identity. See, for example, REM’s refusal to allow Microsoft to use “it’s the end of the world as we know it” for launching Windows 95. There have also been cases on “debasement” of works of an author, even where those rights have been transferred on, and moral rights were relatively recently introduced to bolster this view.

    Thus one theory could be that the extended time frame is to continue the reputation of an author after death. Not unlike certain property rights, like a trust that is set up to preserve someone’s grave is designed to last the lifetime of all who knew that person.

    The assumption, however, is that the author’s reputation or record or rights will continue to be exercising control, rather than be used for retrospective exploitation.

    Surely a better way of thinking about this would be to introduce or allow for the concept that a song has become “generic” after years of popular use without the author’s intervention, permission or assertion of rights.

  34. Posted February 9, 2010 at 2:11 pm | Permalink

    Okay I went and looked at the music, went over the tunes again. It is not the same melody. It just isn’t.
    Talking of which:

    The Stones took 100% of the royalties for The Verve’s hit, and then sold the song to be used on a commercial (which The Verve would not have agreed to). It was a cynical money making effort, not an effort to protect their moral integrity.
    Mmmph. F’kn greedy baby boomers.

  35. Posted February 9, 2010 at 4:51 pm | Permalink

    [email protected]…. Yeah, I had tongue in cheek.

    BTW: On IP, “The Economist” Tech.view column has an article “Patent Nonsense: An end to frivolous patents may be in sight”. Intellectual Property rules are a mess….

  36. Patrick
    Posted February 9, 2010 at 7:23 pm | Permalink

    Dave – they are talking about the same case. If this really interests you, the summary I linked to above is pretty good.

    And my comment above will make more sense if you insert a strategic ‘case’, oops.

  37. Posted February 11, 2010 at 3:01 pm | Permalink

    “In my view, copyright should expire with the author. This ‘life plus 70? crap is an invitation to abuse and prevents the timely release of useful information and data into the public domain. It also encourages abuse in the opposite direction: witness the army of people out there who decide the whole thing isn’t worth their trouble and just partake in illegal downloading of all stripes.”

    Couldn’t agree more.

  38. Miss Candy
    Posted February 14, 2010 at 9:55 am | Permalink

    Thanks LE – my point was probably that this is the source of the rules, rather than justifying how it’s applied. As we both know, making law is a tricky business balancing the ideal policy with the least worthy application. CR law has become distorted with advances in both technology and the pace of commerce, and “Kookaburra” is a good example. Computer programs is another example – does not “fit” with copyright law. But the original motivations behind the law need to be acknowledged and tackled – moral rights was one attempt at this.

    And I still think the “generic” argument should stand, not unlike trademark law.

  39. Posted February 14, 2010 at 12:44 pm | Permalink

    The words “interfering with creativity” in the title of this particular topic on Larvatus Prodeo appears to be, not only a role reversal between the “creator of an original work” (as the victim of a copyright infringement) and the “copyists” who had copied the said original work – but also a direct swap of the respective definitions pertaining to the words “creation” and “copy”. Surely a work which copies a previously released original work cannot possibly be considered to be an “original creation”.

    “Interference with creativity” therefore, would more likely exist when the person who is born with the artistic talent that is essential to create an original artistic work that is worth copying (and subsequently worth exploiting) to generate substantial financial earnings in the market place, ceases to create any new original works altogether. The cause for this would be : If only the copyists can legitimately reap a fortune from the creative talents of persons who are able to create extremely valuable original artistic works, leaving the original creator with only a pittance as a reward, there would no longer be any incentive for these real creative people to keep producing artistic works. The resulting “interference with creativity” would be the copyists finishing up with nothing to work on (or to copy). This reality, however, may not be as evident in the Australian Music Industry as it is in the Australian Film Industry.

    It is perfectly clear in the Kookaburra case that Marion Sinclair had created a very catchy tune, even for that particular period in time (1930’s) – which catchy tune subsequently became an iconic Australian song. So, when Men at Work copied the flute riffs contained in the original song, the emotional feelings that were still present (but in latent form) in the Australian psyche, were awaken when the media used the song “The Land of Plenty” to that effect, after the win of Australia II in the 1983 America’s cup. It is therefore very clear that the two major factors which made “The Land of Plenty” a financial success in Australia, were the catchy tune already contained in the original song “Kookaburra in the old gum tree” together with the ability of the same song, but re-mastered by Men at Work, to awaken the latent Australian spirit still present in the Australian psyche post 1983. The new technology that was used in 1978/1981 for creating the musical arrangements in “The Land of Plenty” song was to add cosmetic effects that were considered relatively attractive, as well as relevant to modern times. It needs to be remembered that this new technology neither existed nor was needed in the 1930’s to drive the original song created by Marion Sinclair to the status of “iconic Australian song”.

    Insofar as the substantial part of the original work that is said to have been copied for copyright laws to apply is concerned, the essential few bars that generated the musical succession of notes which, when joined to these initial few bars, made up the entire collective of tunes that constitute the whole entity of the song “The Land of Plenty”. It is said that a piece of music is similar to a mathematical formula, in the sense that the combination of musical notes in a piece of music is perfectly balanced (what goes up must come down and vice versa) to form a harmonious melody that is similar to the précised nature of a mathematical formula. Reference is made here to the works of Johann Sebastian Bach, who is widely considered to be the best composer of all times, on account of his perfectly balanced and therefore harmonious compositions. As an experiment, we could perhaps take, say, the first few introductory bars of Beethoven’s 5th Symphony and substitute the successive musical notes of this particular composition with the equivalent successive musical notes of, say, any of Vivaldi’s four seasons. Most people would agree that the end result would be an absolute cacophony made up of incompatible musical notes. It can be concluded, therefore, that the musical notes in any composition have to imperatively obey a strict sequential order of succession to produce a harmonious melody.

    Another issue that needs to be considered when measuring the just proportion of royalties owing to the current owners of the copyright in the song “Kookaburra sits in the old gum tree” is that the song “The Land of Plenty” dwarfs all other Men at Work “compositions” in terms of popularity – and when we ask ourselves why – it becomes evident that these other songs by Men at Work were neither intended (nor contained anything similar in nature in their lyrics or musical arrangements to those of “The Land of Plenty”) that had the same ability to arouse the same intensity of Australian emotional feelings in people. Why then did a song which so successfully aroused the Australian spirit in Australia, sell so well in countries other than Australia – we may ask ourselves – the answer is simply because its melody was considered to be very catchy regardless of the country in which it was played.

    What has been said in these comments is in no way an attempt to diminish Men at Work’s musical prowess, but it needs to be remembered that the skill needed by a musician to play a particular musical instrument must not be confused with the highly charged emotional feelings that only a handful of highly sensitive people possess and use (even if they are unable to read or write music) to compose a particular piece of music that arouses human emotional feelings to such elevated levels. E.G. Irvin Berlin.

    During the current trend of wall to wall socialism in existence right across Australia at the moment, it would be sacrilegious not to agree with popular belief that every man was created equal, even though it is so obvious that God has given outstanding artistic talents only to the chosen few. Surely God did not intend that this pseudo equality be artificially achieved by PLUNDERING somebody else’s original work. What is unjust in this case, however, is that the person who justifiably deserves to be recognised for the financial earnings initiated by her original iconic and catchy Australian tune, but realised at a different point in time … is no longer alive today.

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  1. By uberVU - social comments on February 6, 2010 at 2:03 pm

    Social comments and analytics for this post…

    This post was mentioned on Twitter by searchtempo: Down, Kookaburra, Down: I learn via the Hoydens that the Federal Court (oh, the stupid, it burns) has decided that…

  2. […] Skepticlawyer has posted on the case, as have Lauredhel and Robert Merkel.  However, no-one has so far attempted any serious analysis of the legal issues the case raises.  I was hoping the ozblogosphere’s resident IP law expert Kim Weatherall might have posted about last week’s judgment, but alas she seems to be MIA; no posts at her site since late November.  Consequently I thought I’d venture this post.  I’m by no means an IP law expert but I have a sufficient working grasp of it to at least outline for discussion some important legal and wider issues the case raises. […]

  3. […] Rob Merkel at Larvatus Prodeo and skepticlawyer’s take. Possibly related posts: (automatically generated)Copyright Myths RevealedSure enough.Song of the […]

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  5. By Skepticlawyer » Pennies from heaven on September 13, 2012 at 6:13 pm

    […] if you jump the shark too many times, people will stop believing in the utility of copyright law. I refer to and repeat SL’s comments on the infamous Kookaburra case: 1. IP law is rapidly becoming a laughing-stock. IP ‘rights’ […]

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