In April 2010 we wrote to the Australian Minister for Tourism the Hon Martin Ferguson AM, MP, to complain about appalling terms and conditions in the There's Nothing Like Australia photography competition. The rules claimed the entrants copyright and that they were required to waive their moral rights throughout the world.
Due to the number of complaints received the Australian Government changed the rules but still claimed unlimited perpetual rights and waiving of moral rights.
Pro-Imaging again to the Australian Minister for Tourism to complain about the amended terms and conditions and to seek an explanation about why our recommendations had been ignored. Just over a month later we received a letter from the Minister which responded to one of the points raised in our letter and ignored the others. The Minister responded to our complaint about entrants having to waive moral rights by saying that waiving of moral rights is "appropriate".
The Minister said-
"The nothing like Australia promotion is about giving Australians the opportunity to be involved in telling potential travellers what is great about Australia. This is based on research that showed more than 80% of Australians wanted to get involved in promoting their country to the world..."
- and continued -
"I can advise that Tourism Australia decided against amending clause 12 on the basis that, any amendment would prevent practical modifications which might be be required to suit the purpose for which the entries were submitted."
- and continued -
"Research undertaken in the development of this campaign indicates that entrants understand and are supportive of any adaptions or modifications that take place in order to make a more effective campaign for international visitors. In this context, clause 12 of the competitions terms and conditions are appropriate."
This was a reply which indicated that the whole point of our complaint had been missed. We have written again to the Minister to press our concerns. We also urged the Australian Government to adopt the Bill of Rights as the standard to use when promoting competitions seeking creative submissions. Our email to the Australian Minister is published below.
Pro-Imaging Reply to the Australian Minister for Tourism
Dear Martin,
Thank you for your letter to us of 29 June 2010 concerning the Tourism Australia competition ‘There’s Nothing Like Australia.
We note that you say that more than 80% of Australians wanted to get involved in promoting their country to the world.
However, using that as a reason to grab unlimited intellectual property rights and to demand waiving of moral rights from competition entrants is a weak and invalid argument to justify such a practice. The vast majority of those entering this competition will not understand the value of IP rights. Nor will they understand that the primary purpose of the competition is for the Australian Government to obtain IP rights at minimal cost from its own citizens.
The next point made in justifying this competition is that you say “it is not a competition in the ordinary sense, but an avenue for Australians to share experiences.” We would certainly agree with you that it is not a competition in the ordinary sense, far from it, it is an exploitation. It is the case in all competitions of this type (i.e. rights grabbing) for the organisers to excuse their terms and conditions by saying “it is a way for people to have fun” or to “contribute“ to something. It is merely a way for the organiser to obtain intellectual property rights at least cost.
With regard to waiving of moral rights you say this is to enable Tourism Australia to make “practical modifications” to the entries to suit the purpose “for which the entries were submitted” and therefore “clause 12 of the competitions terms and conditions are appropriate.” Unfortunately this entirely misses the nub of our complaint; that entries should only be used to promote the competition, and no other purpose. Waiving of moral rights is never appropriate and in some countries is explicitly prohibited by the law. Your terms are likely to be invalid in such countries. They would certainly be viewed with concern by the World Intellectual Property Organisation – WIPO – an arm of the United Nations.
If Tourism Australia, or any other public or commercial organisation, wish to use submitted entries for any other purpose other than promoting the competition such use should be negotiated independently of the competition with the entrant. Obviously it is too late to change rules for this competition now that it is finished, but we urge yet again the Australian Government to adopt ethical terms and conditions for any future competitions they may organise. The Pro-Imaging Organisers Guide to the Bill of Rights will assist you in this regard. Pro-Imaging will be happy to discuss this with your representatives.
Finally, I return to the research you mentioned that shows 80% of Australians want to get involved in promoting their country to the world. We wish to examine whether the content of the research has anything to say about Australian citizens wishing to give up IP rights or waiving their moral rights to support the government. We believe such information will be of immense interest to Australia’s own creative industries and should be placed in the public domain.
Therefore we are making a request under the Australian Freedom of Information Acts to obtain a full copy of the research from which this statistic has been extracted, along with information setting out the primary reasons for conducting this research.
Please also supply the total number of photographs which were submitted to the ‘There’s Nothing Like Australia’ competition which closed for entries on 12 May 2010.
Your sincerely
PI Representative
Timescale for Response to FOI Request
This above email was sent on Friday 13 August 2010 and according to the Australian FOI act should be responded to within thirty days unless it falls within certain categories of information specified in paras 26A, 27, and 27A of the act, in which case the time may be extended up to 60 days. In Pro-Imaging's view the extension does not apply to our FOI request.
The Australian Government neither acknowledged or responded to our request.
