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

Rio+ 20: Who owns the green economy?

The Rio+20 summit has raised a number of difficult questions about law and technology: what is the relationship between intellectual property and the environment? What role does intellectual property play in sustainable development? Who will own and control the Green Economy? What is the best way to encourage the transfer of environmentally sound technologies? Should intellectual property provide incentives for fossil fuels? What are the respective roles of the public sector and the private sector in green innovation? How should biodiversity, traditional knowledge and Indigenous intellectual property be protected?

Four stories about copyright law and appropriation art

This article considers copyright law and the art of appropriation in an Australian context. It tells four stories about Australian artists - Imants Tillers, Gordon Bennett, Juan Davila and Tracey Moffatt. The stories examine the postmodern critique of copyright law, indigenous copyright and self-determination, the introduction of moral rights, and copyright, photography and film. The article concludes that the work of such contemporary artists has practical implications for the reform of copyright law.

Legislating on biopiracy in Europe: too little, too late?

This Handbook considers the international struggle to provide for proper and just protection of Indigenous intellectual property. Leading scholars consider legal and policy controversies over Indigenous knowledge in the fields of international law, copyright law, trademark law, patent law, trade secrets law, and cultural heritage. This collection examines national developments in Indigenous intellectual property from around the world. As well as examining the historical origins of conflicts over Indigenous knowledge, the volume examines new challenges to Indigenous intellectual property from emerging developments in information technology, biotechnology, and climate change.

A right of resale? Indigenous art under the hammer

This week, Sotheby's sold the late Clifford Possum Tjapaltjarri's painting, Warlugulong. The auction-house's spokesman, Tim Klingender, was enthusiastic about the high price commanded by the art work: "The painting was a really great painting and it deserved to make a really fantastic price, and it made that price."

The White Possessive : Property, Power and Indigenous Sovereignty

The White Possessive explores the links between race, sovereignty, and possession through themes of property: owning property, being property, and becoming propertyless. Focusing on the Australian Aboriginal context, Aileen Moreton-Robinson questions current race theory in the first world and its preoccupation with foregrounding slavery and migration. The nation, she argues, is socially and culturally constructed as a white possession. Moreton-Robinson reveals how the core values of Australian national identity continue to have roots in Britishness and colonization, built on the disavowal of Indigenous sovereignty. Whiteness studies are central to Moreton-Robinson’s reasoning, and she shows how blackness works as a white epistemological tool that bolsters the social production of whiteness—displacing Indigenous sovereignties and rendering them invisible in a civil rights discourse, sidestepping issues of settler colonialism. Throughout this critical examination Moreton-Robinson proposes a bold new agenda for critical Indigenous studies, one that involves deeper analysis of the prerogatives of white possession within the role of disciplines.

Use of Property Rights Registers for sustainability : a Queensland Case Study

Sustainable natural resource management has been a concern of governments and legislators for the last 20 years. A key aspect of an effective management framework is easy access to information about rights and obligations in land and the natural resources in, on or below the land. Information about legal interests in land is managed through a Torrens register in each Australian State. These registers are primarily focused on the registration of a narrow group of legal interests in the land, and rights or obligations that fall outside of these recognised interests are not capable of registration. Practices have developed however for the recording of property rights in natural resources either on separate registers, with no link to the Torrens register or on a separate register managed by the Registrar of Titles but having no legal effect on the title to the land. This paper will discuss and analyse the various ways in which registers have been used in Queensland to provide access to information about rights in natural resources, and provide examples as to how this approach has impacted on the desire for sustainable management. It will also provide a critique of the Queensland model, and call for reform of the present system.

Behavioural biases and information disclosure laws relating to residential property sales : narrowing the gap between existing laws and calls for future reforms

Market failures involving the sale of complex merchandise, such as residential property, financial products and credit, have principally been attributed to information asymmetries. Existing legislative and regulatory responses were developed having regard to consumer protection policies based on traditional economic theories that focus on the notion of the ‘rational consumer’. Governmental responses therefore seek to impose disclosure obligations on sellers of complex goods or products to ensure that consumers have sufficient information upon which to make a decision. Emergent research, based on behavioural economics, challenges traditional ideas and instead focuses on the actual behaviour of consumers. This approach suggests that consumers as a whole do not necessarily benefit from mandatory disclosure because some, if not most, consumers do not pay attention to the disclosed information before they make a decision to purchase. The need for consumer policies to take consumer characteristics and behaviour into account is being increasingly recognised by governments, and most recently in the policy framework suggested by the Australian Productivity Commission

Global knowledge cultures

Knowledge is about cultural power. Considering that it is both resource and product within the brave new world of fast capitalism, this collection argues for knowledge cultures that are mutually engaged and hence more culturally inclusive and socially productive. Globalized intellectual property regimes, the privatization of information, and their counterpoint, the information and creative commons movements, constitute productive sites for the exploration of epistemologies that talk with each other rather than at and past each other. Global Knowledge Cultures provides a collection of accessible essays by some of the world’s leading legal scholars, new media analysts, techno activists, library professionals, educators and philosophers. Issues canvassed by the authors include the ownership of knowledge, open content licensing, knowledge policy, the common-wealth of learning, transnational cultural governance, and information futures. Together, they call for sustained intercultural dialogue for more ethical knowledge cultures within contexts of fast knowledge capitalism.

Copyright future copyright freedom

If copyright law does not liberate us from restrictions on the dissemination of knowledge, if it does not encourage expressive freedom, what is its purpose? This volume offers the thinking and suggestions of some of the finest minds grappling with the future of copyright regulation. The Copyright Future Copyright Freedom conference held in 2009 at Old Parliament House Canberra brought together Lawrence Lessig, Julie Cohen, Leslie Zines, Adrian Sterling, Sam Ricketson, Graham Greenleaf, Anne Fitzgerald, Susy Frankel, John Gilchrist, Michael Kirby and others to share the rich fruits of their experience and analysis. Zines, Sterling and Gilchrist outline their roles in the genesis and early growth of Australian copyright legislation, enriching the knowledge of anyone asking urgent questions about the future of information regulation.

Property Agents and Motor Dealers Act : strike three

The Tourism, Racing and Fair Trading (Miscellaneous Provisions) Act 2002 (“the Act”) which was passed on 18 April 2002 contains a number of significant amendments relevant to the operation of the Property Agents and Motor Dealers Act 2000. The main changes relevant to property transactions are: (i) Changes to the process for appointment of a real estate agent and consolidation of the appointment forms; (ii) Additions to the disclosure obligation of agents and property developers; (iii) Simplification of the process for commencing the cooling off period; (iv) Alteration of the common law position concerning when the parties are bound by a contract; (v) Removal of the requirement for a seller’s signature on the warning statement to be witnessed; (vi) Retrospective amendment of s 170 of the Body Corporate and Community Management Act 1997; (vii) Inclusion of a new power to allow inspectors to enter the place of business of a licensee or a marketeer without consent and without a warrant; and (viii) Inclusion of a new power for inspectors to require documents to be produced by marketeers. The majority of the amendments are effective from the date of assent, 24 April 2002, however, some of the amendments do not commence until a date fixed by proclamation. No proclamation has been made at the time of writing (2 May 2002). Where the amendments have not commenced this will be noted in the article. Before providing clients with advice, practitioners should carefully check proclamation details.

Property Agents and Motor Dealers Act : take two

The Property Agents and Motor Dealers Act 2000 commenced on 1 July 2001. Significant changes have now been made to the Act by the Property Agents and Motor Dealers Amendment Act 2001 (“the amending Act”). The amending Act contains two distinct parts. First, ss 11-19 of the amending Act provide for increased disclosure obligations on real estate agents, property developers and lawyers together with an extension of the 5 business day cooling-off period imposed by the original Act to all residential property (other than contracts formed on a sale by auction). These provisions commenced on 29 October 2001. The remaining provisions of the amending Act provide for increased jurisdiction and powers to the Property Agents and Motor Dealers Tribunal (“the Tribunal”) enabling the Tribunal to deal with claims against marketeers. These provisions commenced on the date of assent, 21 September 2001.

Causing economic harm to property developers : damages for starting an incurably bad appeal?

A recent decision of the Queensland Court of Appeal involved an unusual statement of claim made on behalf of the developer of a proposed resort in Port Douglas. The decision is The Beach Club Port Douglas Pty Ltd v Page [2005] QCA 475. The issue The defendant had objected to a development application of the plaintiff developer and lodged an appeal in the Planning and Environment Court against the council decision granting a development permit. The main issue in the Planning and Environment Court was whether the site coverage of the proposed resort was excessive. In a separate action (the subject matter of the present appeal), the plaintiff developer claimed damages for ‘negligence’ alleging that the defendant had breached a duty of care not to appeal without properly or reasonably assessing whether the development qualified for a permit given that the resort qualified for the maximum allowable site coverage. It was alleged that the appeal lodged by the defendant in the Planning and Environment Court had no reasonable prospects of success and that any reasonable person properly advised would know, or ought reasonably to have known, that to be so. The defendant had been “put on notice” that the plaintiff would incur loss of $10,000 for every day there was a delay in starting construction of the resort. The claim made by the developer required the court to consider those circumstances where a person may lawfully and deliberately cause economic harm to another. Was a duty of care owed by the defendant for negligent conduct of litigation that caused economic loss to the plaintiff?

Waiver of statutory requirements : Property Agents and Motor Dealers Act 2000 (Qld)

One of the many difficulties associated with the drafting of the Property Agents and Motor Dealers Act 2000 (Qld) (‘the Act’) is the operation of s 365. If the requirements imposed by this section concerning the return of the executed contract are not complied with, the buyer and the seller will not be bound by the relevant contract and the cooling-off period will not commence. In these circumstances, it is clear that a buyer’s offer may be withdrawn. However, the drafting of the Act creates a difficulty in that the ability of the seller to withdraw from the transaction prior to the parties being bound by the contract is not expressly provided by s 365. On one view, if the buyer is able to withdraw an offer at any time before receiving the prescribed contract documentation the seller also should not be bound by the contract until this time, notwithstanding that the seller may have been bound at common law. However, an alternative analysis is that the legislative omission to provide the seller with a right of withdrawal may be deliberate given the statutory focus on buyer protection. If this analysis were correct the seller would be denied the right to withdraw from the transaction after the contract was formed at common law (that is, after the seller had signed and the fact of signing had been communicated to the buyer).