Deconstructing Dual Copyright in the Australian Music Industry

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Under Australian intellectual property law, the boundary separating unlawful musical appropriation from artistic influence remains unstable. This boundary is governed by section 14 of the Copyright Act 1968 (Cth), where ‘substantiality’ is the threshold used to determine whether copyright infringement has occurred, requiring proof that a defendant reproduced a significant part of a musical piece.[i] As affirmed by High Court cases, substantiality is primarily a qualitative measure of the originality and intellectual effort of the copyrighted portion.[ii] However, the incorporation of brief musical allusion later challenged this. Musicians face an unreasonable burden as fair dealing exceptions fail to protect the borrowing of musical phrases.[iii] As a result, this demands a safe harbour provision under the legislation to protect transformative musical quotations.

The Qualitative Substantiality Test

Australian courts define a ‘substantial part’ under section 14 of the Copyright Act 1968 (Cth) not by measuring the proportion of the initial work taken, but by assessing the originality of what was copied.[iv] The exclusive rights are extended under section 31(1)(a)(i) to materially reproducing portions, provided the part taken is qualitatively significant.[v] This qualitative approach was affirmed by the High Court in IceTV Pty Ltd v Nine Network Australia Pty Ltd.[vi] The Court unanimously held that IceTV's reproduction of programme time and title information did not amount to a substantial part of Nine's Weekly Schedule as the information taken lacked the originality of human expression required to constitute a substantial part.[vii] Larrikin Music Publishing v EMI Songs Australia exposed the severity of this test for musicians, where Justice Jacobson found that a two-bar flute riff, inserted into Men at Work's “Down Under” as an Australian iconic melody, reproduced a substantial part of “Kookaburra Sits in the Old Gum Tree” (“Kookaburra”).[viii] Although the musicologists agreed the opening two bars were the signature of Kookaburra, His Honour did not treat this alone as decisive.[ix] Instead, he relied on the defendant’s own admission that he sang the Kookaburra lyrics over the flute line in live performances at times, with a finding that approximately half the nursery rhyme had been reproduced in “Down Under”.[x] On appeal, the Court upheld this, confirming that the issue must focus on the borrowed riff itself rather than on “Down Under” as a whole, making any overall audible resemblance legally irrelevant.[xi]

Applying this qualitative standard strictly to musical compositions restricts legitimate creative borrowing of phrases and notes.[xii] Typically, melodic phrases are brief, recurring and drawn from a shared musical vocabulary. However, Larrikin established that even a two-bar riff can trigger a liability if it is decided that its ‘signature’ quality makes it a qualitatively substantial part of the original work. When a fragment in music is distinctive enough to be recognised, section 14 considers it as reproducing the entire work, regardless of the creative intentions to borrow.[xiii] The consequence is that an artist paying tribute to an earlier work faces the same exposure under section 31 as a comprehensive copyist.[xiv] Therefore, Australian law struggles to find the distinction between quotation and appropriation once the substantiality threshold is crossed.

The Fair Dealing Framework

Australia relies on a ‘fair dealing’ model, where unlicensed use of a copyright work, such as a substantial part of music, is excused if it falls within one of the enumerated statutory purposes.[xv] Under sections 40, 41, 41A and 42 of the Copyright Act 1968 (Cth), fair dealing is permitted only for research or study, criticism or review, parody or satire, and reporting news.[xvi] Unlike open-ended fair use models, Australian fair dealing exceptions apply only if the defendant's purpose can be characterised as fitting precisely within one of these named categories.[xvii] A use of excused copyright not placed on the listed purposes, even if reasonable, still receives no protection at all. The Australian Law Reform Commission recognised this flaw and recommended that fair dealing must be replaced with a fair use standard, as the current model is not capable of accommodating new or unanticipated forms of use.[xviii]

Introducing Statutory Safe Harbour

This structural rigidity leaves creative musical homage entirely unprotected. A brief melodic allusion rarely qualifies for fair dealing under sections 40 to 42, as it does not constitute research, criticism, or news reporting.[xix] Furthermore, section 41A is unavailable because courts construe the defence narrowly, requiring artists to prove a genuine purpose to critique the work rather than use it for stylistic referencing.[xx] The categories were never designed to excuse creative quotation or any tribute to an earlier work. Consequently, once a court finds that a ‘substantial part’ has been reproduced under section 14, Australian musicians do not have an affirmative statutory defence.[xxi] The structural rigidity of Australia's current fair dealing exceptions pushes Parliament to amend the Copyright Act 1968 (Cth), so a dedicated statutory safe harbour for brief musical quotations can be introduced. This must be modelled on the European Union's quotation exception in article 5(3)(d) of the Information Society Directive 2001/29/EC, which permits quotation according to fair practice.[xxii] Under this model, the quote must be brief, non-conflicting with the original work and clearly credit the rightholder whenever practical.[xxiii] Essentially, this would allow Australian courts to distinguish genuine creative allusion from extensive copying without requiring the replacement of the fair dealing regime.

The complexity of copyright infringement highlights the imbalance between protecting rights holders and enduring artistic innovation. Therefore, by using a new targeted statutory safe harbour for brief musical quotations, these rights will have a defence while providing space for transformative musical homage.

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References

[i] Copyright Act 1968 (Cth) s 14(1)(a).

[ii] IceTV Pty Ltd v Nine Network Australia Pty Ltd (2009) 239 CLR 458 ('IceTV') [33].

[iii] Copyright Act 1968 (Cth) ss 40, 41, 41A, 42.

[iv] Copyright Act 1968 (Cth) s 14(1)(a).

[v] Copyright Act 1968 (Cth) s 31(1)(a)(i).

[vi] IceTV (n 3).

[vii] Ibid [42].

[viii] Larrikin Music Publishing Pty Ltd v EMI Songs Australia Pty Ltd [2010] FCA 29 [2] ('Larrikin').

[ix] Ibid [13].

[x] Ibid [21], [118].

[xi] Ibid [242].

[xii] Phoebe Vertigan, 'EMI Songs Australia Pty Ltd v Larrikin Music Publishing Pty Ltd (2011) 191 FCR 444' (2011) 30(2) University of Tasmania Law Review 155 [11].

[xiii] Copyright Act 1968 (Cth) s 14(1)(a).

[xiv] Copyright Act 1968 (Cth) s 31(1).

[xv] Australian Law Reform Commission, Copyright and the Digital Economy (Report No 122, November 2013) ch 4 ('ALRC Report').

[xvi] Copyright Act 1968 (Cth) ss 40, 41, 41A, 42.

[xvii] ALRC Report (n 18) ch 4.

[xviii] ALRC Report (n 18) rec 4-1; Productivity Commission, Intellectual Property Arrangements (Inquiry Report No 78, 23 September 2016) rec 6.1.

[xix] Copyright Act 1968 (Cth) ss 40-42.

[xx] Ibid s 41A; Simon Holloway, Sam Fiddian and David Benson, 'When Is a Parody or Satire Also "Fair"? Section 41A of the Copyright Act 1968 (Cth) Explained' (Web Page, Clayton Utz, 5 August 2021) https://claytonutz.com/insights/2021/august/when-is-a-parody-or-satire-also-fair-section-41a-of-the-copyright-act-1968-cth-explained.

[xxi] Copyright Act 1968 (Cth) s 14(1)(a).

[xxii] Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the Harmonisation of Certain Aspects of Copyright and Related Rights in the Information Society [2001] OJ L 167/10, art 5(3)(d).

[xxiii] Ibid art 5(3)(d), 5(5).