The Saga Continues · 1 June 2007
Yesterday I posted about Bill Leak’s on-going legal battle with the Herge Foundation’s company, Moulinsart SA, which controls the rights to the works of Tintin’s Belgian creator, Georges Remi, who worked under the pseudonym Herge.
Leak has been accused of a copyright breach for using Tintin to represent the current opposition leader, Kevin Rudd.
Now, the only problem with this is that he hasn’t technically breached copyright – in Australia at least.
Last night I attended a seminar put on by the Copyright Agency Limited where I raised the matter with them. They seemed curious as to what breach of copyright the Belgian company were actually going to charge Leak with, since the breach – if indeed it is a breach – would be in reference to the publishing of the cartoon online.
The reason for this is that back on 11th December last year *(2006) the Copyright Council of Australia brought in some very important amendments to the Australian Copyright Act.
The one that was in my particular interest, and that of my fellow editorial cartoonists, was an amendment to the ‘Fair Dealings’ clause.
“Fair Dealings”, are clauses whereby copyright restrictions do not apply – ie. You can get away with using the material if it is for one of the four reasons below. The amendments state:
The present exceptions and statutory licenses that allow copyright material to be used for specific purposes benefiting the wider public interest will be strengthened. The Government has agreed to include a new flexible dealing exception that will allow for:
- non-commercial uses by libraries, museums and archives (eg. this may allow a museum to includes extracts of historical documents in materials for visitors);
- non-commercial uses by educational institutions for the purpose of teaching (eg. this may allow a school to put an out-of-date VHS documentary onto DVD);
- non-commercial uses for the benefit of people with disabilities (eg. this may allow a person with a print disability to convert a book they own into accessible text); and
- parody and satire.
To avoid confusion, the new extended dealing exception will not apply to uses where an existing exception or statutory license already operates. Any new use falling within this exception must comply with the standards in Australia’s international treaty obligations.
But according to the Law Centre solicitor Katherine Giles, “Belgium may not have the exception and perhaps the copyright owners in this case don’t know the exception exists.”
There’s a follow-up to the original article from the Australian that I posted yesterday that quotes Leak as saying “There’s a suggestion I’m parodying Tintin, but it’s the Leader of the Opposition I’m parodying,” Leak says. “It’s complimentary, not denigrating Tintin.”
And he’s right. He’s not parodying Tintin – he’s parodying Rudd.
Ian McDonald, senior legal officer with the Australian Copyright Council, agrees that the Belgians “might be pushing it a bit” if they hope to stop a cartoonist using a famous character for the purpose of political satire.
McDonald distinguishes between the parody, which aims at the work itself or the creator of the work, and satire, which “is to do with the follies of society or, in this case, politicians”. He calls the original work, in this instance, “collateral damage”, not the target of the attack.
It will be interesting to see how this pans out. According to the people I spoke to at CAL, the Belgians are known for their vicious pursuit over litigious matters such as this.
They wouldn’t be able to charge him here in Australia. That’s a fact. But they could pursue it over there, although it would be very expensive, and what they could get for damages wouldn’t be much.
Watch this space…
