Fairfax has flexed its legal muscle over an ALP radio advertisement
that it says relied on “an involuntary appropriation of our content”.

Eager to score political points against the Howard Government over this
week’s interest rate
rise, the ALP took a grab of economics columnist Ross Gittins
– who called the rise “damaging to John Howard’s credibility” – speaking on The Sydney Morning Herald website
as the basis for a radio ad.

Fairfax objected on two counts. The ad “violated our copyright”, Fairfax corporate affairs manager
Bruce Wolpe told the ABC. Further, it was “false and misleading by passing the comments of
one of our correspondents … as being an
endorsement of ALP policies”.

The ad – now off air following Fairfax’s legal threats – begins:
“Distinguished economics commentator Ross Gittins had this to say when
questioned on The Sydney Morning Herald
website
about the latest hike in interest rates”. Gittins then launches into a
damning critique of the Howard government’s defence of interest rate
hikes, most notably its claims that they’d be worse under a Labor
government: “Well, I think it would be
damaging to John Howard’s credibility and I think it should be.”

If people fell for Howard’s argument, “if people thought ‘Oh yes, John
Howard is
a man of his word, if he says lower interest rates, that’s exactly what
he means’, then they were rather foolish”, says Gittins. “And I imagine
they’re rather
angry.” The ad ends with a voiceover: “Don’t take it from us, take it
from the experts. Authorised by Tim Gartrell for the Australian Labor
Party.”

Fairfax’s objections to the ad are understandable. It doesn’t want
to be portrayed as an ALP lackey – and neither does Gittins. But were
the legal threats overblown?

No, says media lawyer Nic Pullen. Fairfax is “absolutely right”: the
use of Gittins’s words looks like a clear breach of copyright. In some
cases, if less than a “substantial part” of the text in question has
been used, then copyright isn’t breached. But even if that’s the case
here, it’s probably not a defence for the ALP – the “substantial part”
rule is overridden when an extract contains the essence of the work.
Not only that, but the ALP has used Gittins’s words for a “political
ad”, says Pullen, so the Copyright Act’s “fair review” defence which
exists for the
reporting of news is not available.

It’s true that Fairfax’s copyright is breached on a daily basis – when its reviews are
used by those spruiking movies, cars, restaurants, etc – but these breaches are “innocuous”, says Pullen. The ALP’s was not.

Even so, the ALP didn’t misrepresent Gittins’s views. Nor did it act as
if they had been made specifically for the ALP – the comments were
clearly sourced on the ad. And which party could resist the temptation
of lobbing a grenade when such strong material is up for grabs?

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Peter Fray
Peter Fray
Editor-in-chief of Crikey
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