"Don't Be Afraid" ' It's Only A Protest Song

• Published date: 29 November 2021
• Law Firm: Davies Collison Cave
• Author: Miriam Zanker

Australian band and environmental activists Midnight Oil recently released their latest climate protest song, Rising Seas, timed to coincide with the opening of the COP26 (26^th Conference of Parties) climate change conference. The band has publicly stated that the song is a protest against the Australian government's current stance on climate protections and emissions targets.

Protest songs and public commentary are not new. Public criticism is not always comfortable to hear by those who are within its cross-hairs, and over the years there have been many attempts to suppress this discourse.

But in recent times, the focus in Australia has turned to intellectual property law, to test whether trade mark and copyright law can be used as a defacto means of suppressing public commentary. Several recent Australian court decisions involving politicians, public companies and protest groups, have answered that question with a resounding "We shall not be moved".¹

"Do you hear the people sing?"²

Most of us will be familiar with protest songs spanning many decades and musical genres, including songs on:

• the environment (Radiohead's Idioteque, Joni Mitchell's Big Yellow Taxi);
• war (John Lennon's Give Peace a Chance U2's Sunday Bloody Sunday);
• politics (Pink's Dear Mr President);
• gender equality (Helen Reddy's I am Woman);
• Black Lives Matter and civil rights (Childish Gambino's This is America, Bob Dylan's Blowin' in the Wind, Sam Cooke's A Change is Gonna Come); and
• indigenous land rights (Yothu Yindi's Treaty Paul Kelly & The Messengers' From Little Things Big Things Grow, Midnight Oils' Beds Are Burning) .

..... to name just a few. Even the stage musical Les Misérables features a well-known protest song calling for rebellion on the streets of Paris.

Despite the popularity and prevalence of protest songs, under Australian law there is no constitutional right to freedom of speech, and accordingly any public protest (including in the form of song or placard) carries a risk that it could be susceptible to attack on various fronts.

"The times they are a-changin'"³

The recent cases of NRMA v CFMEU,⁴ AGL v Greenpeace⁵ and Universal Music Publishing v Palmer⁶ have tested the boundaries of Australian intellectual property laws in the context of political commentary.

Recent attempts to apply intellectual property protections within the realm of public controversy have demonstrated that political intentions are largely irrelevant to copyright and trade mark law, as long as the commentary does not overstep the boundary between appropriate public commentary, and misrepresentation or misappropriation. The cases have highlighted that the primary purpose of intellectual property protections is to protect creativity, not to prevent public discourse of opinions.

"Well I heard it on the radio, and I saw it on the television"⁷

No protest sign is complete...