Jobs. Brought to you by mining.
A cleaner future. Brought to you by mining.
Life. Brought to you by mining.
This was the message of the public relations campaign launched by the NSW Minerals Council (NSWMC), disseminated across Sydney, Newcastle, the Hunter Valley and online, on the website nswmining.com.au in February this year.
Or at least, that was the message until a small Newcastle-based climate change activist group called Rising Tide decided to give it a bit of a tweak, setting up their own website and launching their own counter-campaign. Suddenly, it was ‘rising sea levels’, ‘destruction’ and ‘propaganda’ that were brought to you by mining.
The prank sparked a legal stoush, with repercussions reaching as far as the Australia-US Free Trade Agreement (AUSFTA). It also had Australia’s top copyright lawyers watching eagerly for what could have been the country’s first test case of artists’ rights to satire and parody.
The NSWMC declined to comment for this story, however it is clear from the number of legal letters sent to Rising Tide that they took the prank site very seriously. The original incarnation of the Rising Tide site did indeed ‘copy’ the NSWMC’s site. In fact, Rising Tide simply downloaded the Minerals Council’s website, changed the text, and uploaded it back onto the internet.
Within 24 hours, the Minerals Council contacted the group’s web host and forced them to take the site down for breach of copyright. Rising Tide decided to reload the site, this time using only images they had permission to use. Again, the Minerals Council contacted the host within 24 hours and requested that it be taken down.
This time the NSWMC went further, claiming that Rising Tide had also breached the NSW Fair Trading Act because of its use of the ‘Brought to you by mining’ tag. They maintained:
We have developed a reputation in the above slogan through our extensive public awareness campaign. Any unauthorised use of this slogan is likely to mislead the public into believing that the material containing the slogan has been produced or authorised by NSWMC.
Rising Tide rejected the Minerals Council’s claims, but was forced to place the site on an overseas host in order to prevent it from being taken down again.
Rising Tide spokesperson Steve Phillips says his group couldn’t resist the opportunity to parody the Mineral’s Council’s campaign. ‘It’s a pretty ludicrous suggestion, that "life" is brought to us by the coal mining industry,’ he says. The group saw parody as the perfect way to both draw attention to the real impacts of coal mining, as well as to ‘take the piss’.
Phillips says he was shocked by the Minerals Council’s response. ‘They probably thought that we’d get a letter from their lawyers and just give up.’ But Rising Tide refused to give in, claiming that the Minerals Council was abusing the NSW legal system in their attempts to shut down the site.
Phillips argues that the Minerals Council knew that Rising Tide hadn’t breached copyright, but that ‘there’s this clause in the act which allows them to have our site removed anyway. So that’s what they did.’
Katherine Giles, a solicitor at the Arts Law Centre of Australia, explained that, following the AUSFTA, a ‘safe harbour’ provision was put into the Copyright Act that protected Internet Service Providers (ISP) from being liable for copyright infringements on the websites they host. However, if they are given notice that a website is breaching copyright, they must take it down, regardless of whether the website is actually in breach. Giles believes that ‘Rising Tide could make a good argument that their website is fair,’ but because of the provision in the Act, the ISP was still obliged to take the site down.
But there was another interesting change in the copyright laws in December of last year. With great fanfare, the Attorney-General, Philip Ruddock, introduced legislation that specifically protected the right of artists to use copyrighted material for the purpose of parody and satire. Ruddock claimed that without such protection cricket groups such as The Fanatics would not be able to parody famous songs in response to the Barmy Army, saying:
The Government has ensured that the use of copyright material for the purposes of parody or satire will be protected. To retain the law in its current form just wouldn’t be cricket.
Which means that even though Rising Tide used the Minerals Council’s images, this may still be legal if the court considered it fair use for parody. But the provision is so new that it has not yet been tested in court.
Kate Crawford, a Media and Communications lecturer at the University of Sydney, says that copying a website entirely but changing the text is ‘a classic trick’, made notorious in 1999 when two activists who called themselves the ‘Yes Men’ set up the website Gatt.org, a parody of the official site of the World Trade Organisation (WTO).
‘Not only did they set up this fake WTO site, but it also had all of the "contact us here" and email addresses and so forth associated with a real site. And people actually did start trying to contact them, thinking that they were dealing with the WTO,’ says Crawford. ‘Then they started turning up to events they’d been invited to as representatives of the WTO. They would deliver presentations that were pretty close to the real thing, but would just have a couple of weird little details that would throw people.’
This kind of online parody is called ‘culture jamming’.
These days, Crawford says, internet culture jamming has become increasingly sophisticated. Rather than simply taking an image or an idea and slightly modifying it, jammers are developing their own ideas. Crawford cites the website Donkey John, which reinvents the 1980s video game ‘Donkey Kong’ with John Howard as the ape, throwing barrels of oil at Xanana Gusmao. In doing so, it comments on Australia’s policies on oil and East Timor. Crawford explains:
You could quite easily play the game and not be aware of its political subtext, but it is there with you. It’s a very clever way of getting those ideas out there to an audience who might not necessarily see themselves as political activists.
While culture jamming has traditionally been the domain of the Left, it is now seen as an incredibly powerful tool, and is being used more and more by conservative and Right-wing groups. Crawford points to the recent elections in the USA in which a jam of an Apple commercial was used by both the Democrats and the Republicans.
So what of Rising Tide’s culture jam? The NSWMC has dropped their claim of copyright infringement but not without creating a significant amount of trouble for the Newcastle activists.
Nonetheless, Giles remains hopeful that the ‘fair dealing for purposes of parody’ section of the Copyright Act, once tested, will give artists and other culture jammers much more freedom to push the boundaries with their art.
Crawford too hopes that culture jammers will only become more innovative, developing their art in different directions, taking it, ‘somewhere more interesting not just pranks but creating more evolved political and artistic statements’.
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