Robbery under arms: Copyright law and the Australia-United States free trade agreement

TThis article considers the radical, sweeping changes to Australian copyright law wrought by the Australia–United States Free Trade Agreement 2004 (AUSFTA). It contends that the agreement will result in a “piracy of the public domain”. Under this new regime, copyright owners will be able to obtain greater monopoly profits at the expense of Australian consumers, libraries and research institutions, as well as intermediaries, such as Internet service providers. Part One observes that the copyright term extension in Australia to life of the author plus 70 years for works will have a negative economic and cultural impact — with Australia’s net royalty payments estimated to be up to $88 million higher per year. Part Two argues that the adoption of stronger protection of technological protection measures modelled upon the Digital Millennium Copyright Act 1998 (U.S.) will override domestic policy–making processes, such as the Phillips Fox Digital Agenda Review, and judicial pronouncements such as the Stevens v Sony litigation. Part Three questions whether the new safe harbours protection for Internet service providers will adversely affect the sale of Telstra. This article concludes that there is a need for judicial restraint in interpreting the AUSFTA. There is an urgent call for the Federal Government to pass ameliorating reforms — such as an open–ended defence of fair use and a mechanism for orphan works. There is a need for caution in negotiating future bilateral trade agreements — lest the multinational system for the protection of copyright law be undermined.

The dead poets society: The copyright term and the public domain

In a victory for corporate control of cultural heritage, the Supreme Court of the United States has rejected a constitutional challenge to the Sonny Bono Copyright Term Extension Act 1998 (U.S.) by a majority of seven to two. This paper evaluates the litigation in terms of policy debate in a number of discourses — history, intellectual property law, constitutional law and freedom of speech, cultural heritage, economics and competition policy, and international trade. It argues that the extension of the copyright term will inhibit the dissemination of cultural works through the use of new technologies — such as Eric Eldred's Eldritch Press and Project Gutenberg. It concludes that there is a need to resist the attempts of copyright owners to establish the Sonny Bono Copyright Term Extension Act 1998 (U.S.) as an international model for other jurisdictions — such as Australia.

The Demidenko affair: Copyright law, plagiarism and ridicule

This article provides an account of one of Australia's great literary hoaxes - the Demidenko affair. In particular, it focuses upon the accusations that Helen Darville plagiarised a number of historical and literary texts in her novel, The Hand That Signed The Paper. This article considers how the dispute was interpreted in three different contexts - the literary community, the legal system, and the media. Part 1 examines how writers, publishers, and editors understood the controversy in terms of the aesthetics and ethics of plagiarism. Part 2 details how lawyers framed the discussion in light of economic rights and moral rights under copyright law. Part 3 deals with the media attention upon the personalities and politics of the scandal. The conclusion charts the competition between these various communities over who should resolve the dispute.

Bloomsday: Copyright estates and cultural festivals

Copyright estates have been unduly empowered by the extension of the term of copyright protection in Europe, the United States, Australia and elsewhere. The Estate of the Irish novelist, James Joyce, has been particularly aggressive in policing his revived copyrights. The "keepers of the flame" have relied upon threats of legal action to discourage the production of derivative works based upon the canonical texts of the novelist. The Estate has also jealously guarded the reputation of the author by vetoing the use of his work in various scholarly productions. Most radically of all, the grandson Stephen Joyce threatened to take legal action to prevent the staging of "Rejoyce Dublin 2004", a festival celebrating the centenary of Bloomsday. In response, the Irish Parliament rushed through emergency legislation, entitled the Copyright and Related Rights (Amendment) Act 2004 (Ireland) to safeguard the celebrations. The legislation clarified that a person could place literary and artistic works on public exhibition, without breaching the copyright vested in such cultural texts. Arguably, though, the ad hoc legislation passed by the Irish Parliament is inadequate. The Estate of James Joyce remains free to exercise its suite of economic and moral rights to control the use and adaptation of works of the Irish novelist. It is contended that copyright law needs to be revised to promote the interests of libraries and other cultural institutions. Most notably, the defence of fair dealing should be expanded to allow for the transformative use of copyright works, particularly in respect of adaptations and derived works. There should be greater scope for compulsory licensing and crown acquisition of revived copyrights.

Creative adaptations: Integrating Feldenkrais principles in contemporary dance technique to facilitate the transition into tertiary dance education

As conservatoire-style dance teaching has traditionally utilised a hierarchical approach through which the student must conform to the ideal requirements of the conventional technique, current discourse is beginning to question how dance training can develop technical acuity without stifling students' ability to engage creatively. In recent years, there has been growing interest in the field of somatics and its relationship to tertiary dance training due to the understanding that this approach supports creative autonomy by radically repositioning the student's relationship to embodied learning, skill acquisition, enquiry and performance. This research addresses an observable disjuncture between the skills of dancers graduating from tertiary training and Australian dance industry needs, which increasingly demand the co-creative input of the dancer in choreographic practice. Drawing from Action Research, this paper will discuss a project which introduces somatic learning approaches, primarily from Feldenkrais Method and Hanna Somatics, to first-year dance students in their transition into tertiary education. This paper acknowledges previous research undertaken, most specifically the Somdance Manual by the University of Western Sydney, while directing focus to the first-year student transition from private dance studio training into the pre-professional arena.

The Down Under book and film remind us our copyright law’s still unfair for artists

Australian copyright law is broken, and the Australian Government isn’t moving quickly to fix it. Borrowing, quoting, and homage are fundamental to the creative process. This is how people are inspired to create. Under Australian law, though, most borrowing is copyright infringement, unless it is licensed or falls within particular, narrow categories. This year marks five years since the very real consequences of Australia’s restrictive copyright law for Australian artists were made clear in the controversial litigation over Men at Work’s 1981 hit Down Under. The band lost a court case in 2010 that found that the song’s iconic flute riff copied some of the 1934 children’s song Kookaburra Sits in the Old Gumtree. A new book and documentary tell us more about the story behind the anthem – and the court case. The book, Down Under by Trevor Conomy, and the documentary, You Better Take Cover by Harry Hayes, bring renewed interest and new perspectives on the tragic story.

Blurred Lines may be the biggest music copyright case of 2015

The year is still young, but this week a judgement was handed down in what may well be the biggest music case of 2015. Marvin Gaye’s children have won a copyright law suit against Robin Thicke (no stranger to controversy) and Pharrell Williams for the song Blurred Lines. The 2013 hit was found to have infringed Gaye’s musical copyright in Got To Give It Up. A jury in the US awarded damages of nearly US$7.4 million – nearly half of the song’s US$16.6 million takings to date.

Copyright and creativity: An ongoing debate in the creative industries

This paper critically analyzes the divergent perspectives on how copyright and intellectual property laws impact creativity, innovation, and the creative industries. One perspective defines the creative industries based on copyright as the means by which revenues are generated from innovation and the dissemination of new ideas. At the same time, it has been argued that copyright and intellectual property regimes fetter creativity and innovation, and that this has become even more marked in the context of digital media convergence and the networked global creative economy. These issues have resonated in debates around the creative industries, particularly since the initial DCMS mapping study in the UK in 1998 defined creative industries as combining individual creativity and exploitable forms of intellectual property. The issue of competing claims for the relationship between copyright and the creative industries has also arisen in Australia, with a report by the Australian Law Reform Commission entitled Copyright and the Digital Economy. This paper will consider the competing claims surrounding copyright and the creative industries, and the implications for policy-makers internationally.

Modulating power and 'new weapons': Taking aim at the education revolution

This paper looks at the emergent performative culture seducing education in the Australian context. It links this corporate discourse to Deleuzean theorising of control societies to postulate that what we are experiencing is a new form of power relations – that of the modulating mechanisms of power. These modulating mechanisms overlay disciplinary power such that the self is modulated through the amplification and frequencies of the instruments of modulation: the simulation, the categorical sorting and the sample. These instruments are increasingly utilised within the performative culture of the Australian Federal Government’s Education Revolution as examples of the performative ‘terror’ or the abstraction of the self from the terrain in which they move. Finally, some new weapons are suggested that may offer preliminary and tentative ‘movement’ in deterritorialising ways through the enclosed spaces of mass, compulsory school and the policy that shapes it.

No Right to Live? Malaysia’s Islam and Implications for Its Sexual Minority Storytellers

This chapter discusses the fast emerging challenges for Malay and Muslim sexual minority storytellers in the face of an aggressive state-sponsored Islamisation of a constitutionally secular Malaysia. I examine the case of Azwan Ismail, a gay Malay and Muslim Malaysian who took part in the local ‘It Gets Better’ project, and who suffered an onslaught of hostile comments from fellow Malay Muslims. Azwan’s experience makes one question how a message of discouraging suicidal tendencies among sexual minority youths can be so vehemently misperceived. Azwan’s existential challenges – stemming from the tension between his own constructions of self and those of others – (re)present a unique challenge in the long struggle for human rights. In my examination of the arising contradictions, I highlight the challenges for Azwan’s existential self – one who is deemed morally bankrupt by hostile audiences. The purist Sunni Islam agenda in a constitutionally secular Malaysia not only rejects the human rights of the sexual minorities in Malaysia but has also influenced, and is often a leading hostile voice in both regional and international blocs. This self-righteous, supremacist and authoritarian Islam discourages discourse and attacks all differing opinions. This resulting disabling environment for vulnerable, minority communities and their human rights manifests in State-endorsed discrimination, compulsory counselling, forced rehabilitation and criminalisation. It places the rights of the sexual minorities to live within such a society in doubt. In discussing the arising issues, I draw upon literature that investigates the way in which personal stories have traditionally been used to advance human rights. Included too, is the significance and implications of the work by social psychologists in explaining the loss of credibility of personal stories. I then advance an analytical framework that will allow storytelling as a very individual form of witnessing to reclaim and regain its ‘truth to power’.

Digital copyright and the consumer revolution: Hands off my iPod

This book documents and evaluates the growing consumer revolution against digital copyright law, and makes a unique theoretical contribution to the debate surrounding this issue. With a focus on recent US copyright law, the book charts the consumer rebellion against the Sonny Bono Copyright Term Extension Act 1998 (US) and the Digital Millennium Copyright Act 1998 (US). The author explores the significance of key judicial rulings and considers legal controversies over new technologies, such as the iPod, TiVo, Sony Playstation II, Google Book Search, and peer-to-peer networks. The book also highlights cultural developments, such as the emergence of digital sampling and mash-ups, the construction of the BBC Creative Archive, and the evolution of the Creative Commons. Digital Copyright and the Consumer Revolution will be of prime interest to academics, law students and lawyers interested in the ramifications of copyright law, as well as policymakers given its focus upon recent legislative developments and reform proposals. The book will also appeal to librarians, information managers, creative artists, consumers, technology developers, and other users of copyright material.

The Pirate Bazaar: The Social Life of Copyright Law

This thesis provides a cultural history of Australian copyright law and related artistic controversies. It examines a number of disputes over authorship, collaboration, and appropriation across a variety of cultural fields. It considers legal controversies over the plagiarism of texts, the defacing of paintings, the sampling of musical works, the ownership of plays, the co-operation between film-makers, the sharing of MP3 files on the Internet, and the appropriation of Indigenous culture. Such narratives and stories relate to a broad range of works and subject matter that are protected by copyright law. This study offers an archive of oral histories and narratives of artistic creators about copyright law. It is founded upon interviews with creative artists and activists who have been involved in copyright litigation and policy disputes. This dialogical research provides an insight into the material and social effects of copyright law. This thesis concludes that copyright law is not just a ‘creature of statute’, but it is also a social and imaginative construct. In the lived experience of the law, questions of aesthetics and ethics are extremely important. Industry agreements are quite influential. Contracts play an important part in the operation of copyright law. The media profile of personalities involved in litigation and policy debates is pertinent. This thesis claims that copyright law can be explained by a mix of social factors such as ethical standards, legal regulations, market forces, and computer code. It can also be understood in terms of the personal stories and narratives that people tell about litigation and copyright law reform. Table of Contents Prologue 1 Introduction A Creature of Statute: Copyright Law and Legal Formalism 6 Chapter One The Demidenko Affair: Copyright Law and Literary Works 33 Chapter Two Daubism: Copyright Law and Artistic Works 67 Chapter Three The ABCs of Anarchism: Copyright Law and Musical Works 105 Chapter Four Heretic: Copyright Law and Dramatic Works 146 Chapter Five Shine: Copyright Law and Film 186 Chapter Six Napster: Infinite Digital Jukebox or Pirate Bazaar? Copyright Law and Digital Works 232 Chapter Seven Bangarra Dance Theatre: Copyright Law and Indigenous Culture 275 Chapter Eight The Cathedral and the Bazaar: The Future of Copyright Law 319

‘Just choose the easy option’: Students talk about alcohol use and social influence

Previous research into young people’s drinking behaviour has studied how social practices influence their actions and how they negotiate drinking-related identities. Here, adopting the perspective of discursive psychology we examine how, for young people, social influences are bound up with issues of drinking and of identity. We conducted 19 focus groups with undergraduate students in Australia aged between 18 and 24 years. Thematic analysis of participants’ accounts for why they drink or do not drink was used to identify passages of talk that referred to social influence, paying particular attention to terms such as ‘pressure’ and ‘choice’. These passages were then analysed in fine-grained detail, using discourse analysis, to study how participants accounted for social influence. Participants treated their behaviour as accountable and produced three forms of account that: (1) minimised the choice available to them, (2) explained drinking as culture and (3) described resisting peer pressure. They also negotiated gendered social dynamics related to drinking. These forms of account allowed the participants to avoid individual responsibility for drinking or not drinking. These findings demonstrate that the effects of social influence on young people’s drinking behaviour cannot be assumed, as social influence itself becomes negotiable within local contexts of talk about drinking.

International copyright law: A book review

n his 1994 book, Copyright's Highway, Paul Goldstein made the telling prophecy: The celestial jukebox may also portend more revolutional changes in international copyright markets. As the celestial jukebox disseminates information and entertainment over the air and without regard for national boundaries, the importance of the nation-state as a traditional guarantor of copyright may be replaced by international institutions such as the newly established World Trade Organization. In retrospect, it was an accurate prediction. The celestial jukebox has shown little respect for national boundaries. In particular, ephemeral file-sharing programs such as Napster, Freenet and Filetopia have posed difficulties for copyright law. International treaties have taken on larger significance and international institutions such as the World Intellectual Property Organization and World Trade Organization have assumed a greater role in regulating international copyright markets.