Any copyright action leveled against WikiLeaks for the release of a quarter of a million secret United States government cables would be a “grotesque misuse” of copyright law, says an expert in intellectual property.

WikiLeaks have come under intense scrutiny in the past fortnight for their planned release of an enormous cache of cables sent from US embassies around the world.

While the whistleblower website has released just 1344 out of 251,287 cables so far, there have been calls from politicians around the world for founder Julian Assange to be prosecuted for breaching an assortment of laws — including espionage, terrorism and copyright.

But Professor Michael Fraser, professor of law and director of the Communications Law Centre at the University of Technology, says that a copyright finding is unlikely and any potential prosecution under that law would be a desperate attempt to stymie the further release of the cables.

Under section 107 of the United States Code, which is based around the first constitutional amendment of free speech, fair use of copyrighted work for the use of news reporting is not a breach of copyright. Fraser said that, given the very strong first amendment basis in the constitution for freedom of expression, fair use could be used as a defence by WikiLeaks.

“It would be a grotesque misuse of legitimate copyright laws, which are not meant to shut down whistle-blowers,” Fraser said. “I’m somebody who is in favour of the legitimate and proper use of copyright to protect creators’ livelihood and to protect freedom of expression. This would be a sad misuse of those kind of laws and it wouldn’t be doing anybody any favours.”

Fraser said that while Australian government documents are the subject of copyright, the Australian Copyright Act (1968) also allows a person or organisation to use copyright material without permission if it is for a “fair dealing” for the purpose of reporting the news.

“It could be argued that releasing a quarter of a million documents is beyond the bounds of fair dealing in the reporting of the news,” Fraser said. “But the Australian law doesn’t law apply here, it’s the American law that applies.”

Some US politicians have also called Assange to be prosecuted under the Espionage Act, which prohibits the release of sensitive government information which could be used to the detriment of the US government or to the advantage of any foreign nation.

“It [action against WikiLeaks] is clearly not about copyright,” Fraser said. “It would be a misuse of copyright law to deal with this problem, when obviously from the point of view of the government their concern is not a copyright issue.”

Fraser said that the real debate should centre around the public’s right to know, in contrast with the confidentiality that governments rely on to operate effectively.

“While the government has abused the public’s trust by keeping too many secrets, publication is not its own justification and something of this kind could result in more secrecy. So perhaps not all 250,000 documents are in the public interest, but certainly some of them are.”

Peter Fray

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