Pesky kookaburra drops one on the debate over copyright law

This was published 10 years ago

Pesky kookaburra drops one on the debate over copyright law

In case you'd forgotten the words, I'll reproduce in its entirety this charming ditty so that we sing along together, preferably in rounds:

Merry merry king of the bush is he

Laugh kookaburra, laugh kookaburra


Gay your life must be.

Quite so. This iconic four-bar slice of Australiana was composed in 1934 by Miss Marion Sinclair, who entered Kookaburra in a competition conducted by the Girl Guides Association of Victoria. Much later, Larrikin Music Publishing came to acquire the copyright in Miss Sinclair's musical work.

Countless people throughout the world studiously missed elements of Miss Sinclair's tiny masterpiece that turned up in Men At Work's much more ''layered'' pop song Down Under. In fact, nobody seemed to recognise that there was a flute riff, or hook, in Down Under that bore some similarity to two bars of Miss Sinclair's music. This might suggest that the objective similarity between the two pieces of music was remote. The first public outing of the connection came on the ABC's musical quiz show Spicks And Specks in 2007.

Even then, the panel of experts had some trouble making up their mind as to whether the similarities were sufficiently strong.

Not so, said Justice Peter Jacobson in the Federal Court yesterday. The Larrikin Music people brought proceedings against EMI Songs Australia, which holds the copyright in Down Under, and the two composers of the music and words, the former members of Men At Work Colin Hay and Ron Strykert.


Musicologists of the utmost fame were called to give evidence. In one corner, for Larrikin, was Dr Andrew Ford, a leading musical voice on the ABC. In the other corner was Martin Armiger, the head of screen composition at the Australian Film Television and Radio School. It was all highly technical stuff, but in the end largely a matter of interpretation.

Both pieces of music evoke quintessential Australianness. On the one hand gum trees, kookaburras and gayness. On the other Vegemite, ''fried out'' Kombis, koalas and beer. All that seems to be missing are corks on Akubras.

The truth is that all creative endeavour involves a degree of borrowing, lifting, and plundering. The artistic process is a constant process of altering, refining and reinterpreting something that someone else did first.

Where did Miss Sinclair's idea come from? Were bits subconsciously snaffled from other poets? It seems odd to suggest that something can be utterly original. Certainly Men At Work acknowledged that they drew inspiration from Barry Humphries's character Barry McKenzie and his stereotypical Aussieness.

Fortunately, there is growing awareness of the downside of an overly protective view of intellectual property and its ''locking up'' of ''original'' ideas and research. It has the potential to stifle much scientific and creative endeavour.

While one judge was squeezing tight the copyright regime, another judge of the same court on the same day was letting it all hang out.

Justice Dennis Cowdroy rejected claims by a huge global clutch of film and television studios that Australia's third-biggest internet service provider, iiNet, was infringing their copyright by allowing its customers to download movies from the internet.

As the judgment stands, this is a significant decision. The movie industry was anxiously hanging on the outcome; now it's back to the drawing boards and no doubt an appeal.

So ISPs are not obliged to police their customers' copyright infringements. This is the case even where the ISP has been notified of customers' alleged infringement and doesn't disconnect them.

Maybe the applicants were suing the wrong entity. The open source file-sharing software that allows this downloading, which is called BitTorrent, came in for a lot of discussion in the proceedings and it's clear that without BitTorrent none of this private extraction of movie titles would be possible.

What the applicants, led by an outfit known as the Australian Federation Against Copyright Theft, contended was that this was a big setback for the 50,000 or so people employed in the Australian film industry.

That sounds like an understandable bit of special pleading, but what it does suggest is that the movie industry has its finger in a very leaky dyke as it clings to the traditional distribution model.

In its heyday the movie studios, the distributors and exhibitors formed one of the most ruthless enforcers of a cartel structure that the world of anti-competitive conduct has seen.

Things have moved on a little bit since then and they have a long way to move still.

The movie industry is in the same position that the music people were in before they got into bed with iTunes and Apple.

All the great media industries will have to find ways to work with the new modes of distribution. To work against them ultimately will spell ruin. This applies not only to movies, but to books, newspapers and magazines. It doesn't necessarily mean an end to 50,000 jobs at all. It could mean selling titles more cheaply to more people in different ways that expand employment.


Of course, the lawyers won't be out of a job. There is the smell of appeal in the air, with ultimately the High Court having to grapple with the new, new world.

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