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.”
So the short answer is yes- Wikileaks is breaching copyright.
Yes, what is the answer to the question posed in the headline? Apart from some waffle about the definition of fair use in Australia, which is clearly not relevant.
Can you ask Professor Fraser if Section 101 of the United States Copyright Law applies?
“Copyright protection under this title is not available for any work of the United States Government, but the United States Government is not precluded from receiving and holding copyrights transferred to it by assignment, bequest, or otherwise.
“A ‘work of the United States Government’ is a work prepared by an officer or employee of the United States Government as part of that person’s official duties.”
Tom Cowie and
David Hand (3.35pm). [So the short answer is yes- Wikileaks is breaching copyright.]
Groan, NO. First there is simply not even the question of copyright violation re Australia since it is American cables that have been published, nothing of Australian creation (even if it concerns Australian subject matter).
Second, Ajlum at 4.26pm has it right: the New York Times reported on legal experts whose opinion was absolutely clear on this issue of copyright (in the context of US law, the only law that can matter):
[Intellectual property law criminalizes the unauthorized reproduction of certain kinds of commercial information, like trade secrets or copyrighted music, films and software files. But those categories do not appear to cover government documents, which by law cannot be copyrighted and for which there is no ordinary commercial market.]
My personal view is that Assange has not violated copyright law but the commentary here, including Michael James’ post, is that he may technically have done so. This is bacause of the qualifying words “opinion” “do not appear to cover”.
The original article says, in my view, “He may have violated copyright but it would be unfair to procecute.”
This indicates that should the US government ever get Assange onto US soil, they may have a legal tool to get him.