Country of Origin and Internet Publication : Applying the Berne Convention in the Digital Age

Historically, determining the country of origin of a published work presented few challenges, because works were generally published physically – whether in print or otherwise – in a distinct location or few locations. However, publishing opportunities presented by new technologies mean that we now live in a world of simultaneous publication – works that are first published online are published simultaneously to every country in world in which there is Internet connectivity. While this is certainly advantageous for the dissemination and impact of information and creative works, it creates potential complications under the Berne Convention for the Protection of Literary and Artistic Works (“Berne Convention”), an international intellectual property agreement to which most countries in the world now subscribe. Under the Berne Convention’s national treatment provisions, rights accorded to foreign copyright works may not be subject to any formality, such as registration requirements (although member countries are free to impose formalities in relation to domestic copyright works). In Kernel Records Oy v. Timothy Mosley p/k/a Timbaland, et al. however, the Florida Southern District Court of the United States ruled that first publication of a work on the Internet via an Australian website constituted “simultaneous publication all over the world,” and therefore rendered the work a “United States work” under the definition in section 101 of the U.S. Copyright Act, subjecting the work to registration formality under section 411. This ruling is in sharp contrast with an earlier decision delivered by the Delaware District Court in Håkan Moberg v. 33T LLC, et al. which arrived at an opposite conclusion. The conflicting rulings of the U.S. courts reveal the problems posed by new forms of publishing online and demonstrate a compelling need for further harmonization between the Berne Convention, domestic laws and the practical realities of digital publishing. In this article, we argue that even if a work first published online can be considered to be simultaneously published all over the world it does not follow that any country can assert itself as the “country of origin” of the work for the purpose of imposing domestic copyright formalities. More specifically, we argue that the meaning of “United States work” under the U.S. Copyright Act should be interpreted in line with the presumption against extraterritorial application of domestic law to limit its application to only those works with a real and substantial connection to the United States. There are gaps in the Berne Convention’s articulation of “country of origin” which provide scope for judicial interpretation, at a national level, of the most pragmatic way forward in reconciling the goals of the Berne Convention with the practical requirements of domestic law. We believe that the uncertainties arising under the Berne Convention created by new forms of online publishing can be resolved at a national level by the sensible application of principles of statutory interpretation by the courts. While at the international level we may need a clearer consensus on what amounts to “simultaneous publication” in the digital age, state practice may mean that we do not yet need to explore textual changes to the Berne Convention.

Country of Origin and Internet Publication: Applying the Berne Convention in the Digital Age

Historically, determining the country of origin of a published work presented few challenges, because works were generally published physically – whether in print or otherwise – in a distinct location or few locations. However, publishing opportunities presented by new technologies mean that we now live in a world of simultaneous publication – works that are first published online are published simultaneously to every country in world in which there is Internet connectivity. While this is certainly advantageous for the dissemination and impact of information and creative works, it creates potential complications under the Berne Convention for the Protection of Literary and Artistic Works (“Berne Convention”), an international intellectual property agreement to which most countries in the world now subscribe. Under the Berne Convention’s national treatment provisions, rights accorded to foreign copyright works may not be subject to any formality, such as registration requirements (although member countries are free to impose formalities in relation to domestic copyright works). In Kernel Records Oy v. Timothy Mosley p/k/a Timbaland, et al. however, the Florida Southern District Court of the United States ruled that first publication of a work on the Internet via an Australian website constituted “simultaneous publication all over the world,” and therefore rendered the work a “United States work” under the definition in section 101 of the U.S. Copyright Act, subjecting the work to registration formality under section 411. This ruling is in sharp contrast with an earlier decision delivered by the Delaware District Court in Håkan Moberg v. 33T LLC, et al. which arrived at an opposite conclusion. The conflicting rulings of the U.S. courts reveal the problems posed by new forms of publishing online and demonstrate a compelling need for further harmonization between the Berne Convention, domestic laws and the practical realities of digital publishing. In this chapter, we argue that even if a work first published online can be considered to be simultaneously published all over the world it does not follow that any country can assert itself as the “country of origin” of the work for the purpose of imposing domestic copyright formalities. More specifically, we argue that the meaning of “United States work” under the U.S. Copyright Act should be interpreted in line with the presumption against extraterritorial application of domestic law to limit its application to only those works with a real and substantial connection to the United States. There are gaps in the Berne Convention’s articulation of “country of origin” which provide scope for judicial interpretation, at a national level, of the most pragmatic way forward in reconciling the goals of the Berne Convention with the practical requirements of domestic law. We believe that the uncertainties arising under the Berne Convention created by new forms of online publishing can be resolved at a national level by the sensible application of principles of statutory interpretation by the courts. While at the international level we may need a clearer consensus on what amounts to “simultaneous publication” in the digital age, state practice may mean that we do not yet need to explore textual changes to the Berne Convention.

Protection of Refugees and Displaced Persons in the Asia Pacific Region

The chapters in this book explore the impact of recent shifts in global and regional power and the subsequent development and enforcement of international refugee protection standards in the Asia Pacific region. Drawing on their expertise across a number of jurisdictions, the contributors assess the challenges confronting the implementation of international law in the region, as well as new opportunities for extending protection norms into national and regional dialogues. The case studies span key jurisdictions across the region and include a comparative analysis with China, Indonesia, Thailand, Myanmar, Malaysia, Bangladesh and Australia. This topical and important book raises critical questions for the Asia Pacific region and sheds light on the challenges confronting the protection of refugees and displaced persons in this area. Interdisciplinary in its approach, it will be of interest to academics, researchers, students and policy-makers concerned with the rights and protection of refugees.

Shifting Powers : Protection of Refugees and Displaced Persons in the Asia Pacific Region

The United Nations High Commissioner for Refugees' (UNHCR) 2011 statistics on refugee populations residing by region are a stark reminder of the challenge facing states and civil society in the Asia Pacific. In 2011, Africa hosted 2,149,000 refugees; the Americas, Europe, and Middle East and North Africa hosted 513 ,500, 1,605,500 and 1,889,900 respectively, while the Asia Pacific hosted a staggering 3,793,900. The fact that 35 per cent of the world's refugees reside in the Asia Pacific, coupled with the fact that 84 per cent of refugees displaced in Asia remain in the region,raises the questions why so few countries in the region are signatories to the Convention relating to the Status of Refugees ('Refugee Convention') or cognate rights instruments and why no formally binding regional agreement exists for the equitable sharing of responsibilities for refugees...

The concept of vulnerability and the protection of human subjects of research

This article provides an overview of the concept of vulnerability through the lens of the U.S. federal regulations for the protection of human subjects of research. General issues that emerge for nurse researchers working with regulated vulnerable populations are identified. Points of current controversy in the application of the regulations and current discourse about vulnerable groups are highlighted. Suggestions for negotiating the tension between federally regulated human subject requirements and the realities of research with vulnerable subjects are given. The limitations of the designation of vulnerable as a protection for human subjects will also be discussed.

Assessing the concordance of health and child protection data for 'maltreated' and 'unintentionally injured' children

Objectives: To quantify the concordance of hospital child maltreatment data with child protection service (CPS) records and identify factors associated with linkage. Methods: Multivariable logistic regression analysis was conducted following retrospective medical record review and database linkage of 884 child records from 20 hospitals and the CPS in Queensland, Australia. Results: Nearly all children with hospital assigned maltreatment codes (93.1%) had a CPS record. Of these, 85.1% had a recent notification. 29% of the linked maltreatment group (n=113) were not known to CPS prior to the hospital presentation. Almost 1/3 of children with unintentional injury hospital codes were known to CPS. Just over 24% of the linked unintentional injury group (n=34) were not known to CPS prior to the hospital presentation but became known during or after discharge from hospital. These estimates are higher than the 2006/07 annual rate of 2.39% of children being notified to CPS. Rural children were more likely to link to CPS, and children were over 3 times more likely to link if the index injury documentation included additional diagnoses or factors affecting their health. Conclusions: The system for referring maltreatment cases to CPS is generally efficient, although up to 1 in 15 children had codes for maltreatment but could not be linked to CPS data. The high proportion of children with unintentional injury codes who linked to CPS suggests clinicians and hospital-based child protection staff should be supported by further education and training to ensure children at risk are being detected by the child protection system.

Capacity-building workshops on the responsibility to protect (R2P) and the protection of civilians (POC) in armed conflict - Summary Report

In June 2011, a research project team from the Institute for Ethics, Governance and Law (IEGL), Queensland University of Technology, the United Nations University, and the Australian Government’s Asia Pacific Civil-Military Centre of Excellence (APCMCOE) held three Capacity-Building Workshops (the Workshops) on the Responsibility to Protect (R2P) and the Protection of Civilians (POC) in Armed Conflict in Manila, Kuala Lumpur, and Jakarta. The research project is funded by the Australian Responsibility to Protect Fund, with support from APCMCOE. Developments in Libya and Cote d’Ivoire and the actions of the United Nations Security Council have given new significance to the relationship between R2P and POC, providing impetus to the relevance and application of the POC principle recognised in numerous Security Council resolutions, and the R2P principle, which was recognised by the United Nations General Assembly in 2005 and, now, by the Security Council. The Workshops considered the relationship between R2P and POC. The project team presented the preliminary findings of their study and sought contributions and feedback from Workshop participants. Prior to the Workshops, members of the project team undertook interviews with UN offices and agencies, international organisations (IOs) and non-government organisations (NGOs) in Geneva and New York as part of the process of mapping the relationship between R2P and POC. Initial findings were considered at an Academic-Practitioner Workshop held at the University of Sydney in November 2010. In addition to an extensive literature review and a series of academic publications, the project team is preparing a practical guidance text (the Guide) on the relationship between R2P and POC to assist the United Nations, governments, regional bodies, IOs and NGOs in considering and applying appropriate protection strategies. It is intended that the Guide be presented to the United Nations Secretariat in New York in early 2012. The primary aim of the Workshops was to test the project’s initial findings among an audience of diplomats, military, police, civilian policy-makers, practitioners, researchers and experts from within the region. Through dialogue and discussion, the project team gathered feedback – comments, questions, critique and suggestions – to help shape the development of practical guidance about when, how and by whom R2P and POC might be implemented.

Does the protection of vulnerable children require a system of mandatory reporting of abuse and neglect? [An issues paper for the New Zealand Government Green Paper for vulnerable children]

In this Issues Paper, I raise some key points relevant for any government which is considering its child protection and family welfare policy. In particular, I will raise questions about whether a form of legislative reporting duty is required, and if so, what consequences this has for child protection. The context of child maltreatment - and each form of maltreatment: physical abuse, sexual abuse, psychological or emotional abuse, and neglect - is extremely complex, and the overarching question of how to deal with these phenomena involve challenging normative, economic and practical questions. There are no easy or perfect solutions. Nor, often, is there the amount and quality of evidence available on which public policy approaches should be devised. However, from the best evidence about the history of this context, from research conducted in this field, and from the best evidence available about the nature, incidence and effects of different subtypes of maltreatment, some observations can be made which may help to inform deliberations. I outline 10 key issues related to mandatory reporting legislation while being mindful of the New Zealand context. My view, based on both research evidence and a concern to protect and promote children’s interests, and society’s interests, is that reporting laws in some form are necessary and can contribute substantially to child protection and enhancing family and community health and wellbeing. However, they are only one necessary part of a sound child protection system, being a method of tertiary and secondary prevention, and primary prevention efforts must also be prioritised. Moreover, it is essential that if a legislative reporting duty is enacted, it must be designed carefully and implemented soundly, and it must be integrated within a properly resourced child protection and family welfare system.

The impact of police speed enforcement practices on self-reported speeding: An exploration of the effects of visibility and mobility

Research has highlighted the relationship between vehicle speed and increased crash risk and severity. Evidence suggests that police speed enforcement, in particular speed camera operations, can be an effective tool for reducing traffic crashes. A quantitative survey of Queensland drivers (n = 852) was conducted to investigate the impact of police speed enforcement methods on self-reported speeding behaviour. Results indicate that visible enforcement was associated with significantly greater self-reported compliance than covert operations irrespective of the mobility of the approach, and the effects on behaviour were longer lasting. The mobility of operations appeared to be moderated the visibility of the approach. Specifically, increased mobility was associated with increase reported compliant behaviour, but only for covert operations, and increased longevity of reported compliant behaviour, but only for overt operations. The perceived effectiveness of various speed enforcement approaches are also analysed across a range of driving scenarios. Results are discussed in light of the small effect sizes. Recommendations for policy and future research are presented.

The effect of monocular and binocular cataract blur on postural stability among older adults

Purpose: First-eye cataract surgery can reduce the rate of falls among older adults, yet the effect of second-eye surgery on the rate of falling remains unclear. The present study investigated the effect of monocular and binocular simulated cataract blur on postural stability among older adults. Methods: Postural stability was assessed on 34 healthy older adults (mean 68.2 years, SD 3.5) with normal vision, using a portable force platform (BT4, HUR Labs, Finland) which collected data on centre of pressure (COP) displacement. Stability was assessed on firm and foam surfaces under four binocular viewing conditions using Vistech filters to simulate cataract blur: [1] best-corrected vision both eyes; [2] blur over non-dominant eye, [3] blur over dominant eye and [4] blur over both eyes. Binocular logMAR visual acuity, Pelli-Robson contrast sensitivity and stereoacuity were also measured under these viewing conditions and ocular dominance measured using the hole-in-card test. Generalized estimating equations with an exchangeable correlation structure examined the effect of the surface and vision conditions on postural stability. Results: Visual acuity and contrast sensitivity were significantly reduced under monocular and binocular cataract blur compared to normal viewing. All blur conditions resulted in loss of stereoacuity. Binocular cataract blur significantly reduced postural stability compared to normal vision on the firm (COP path length; p=0.013) and foam surface (anterior-posterior COP RMS, COP path length and COP area; p<0.01). However, no significant differences in postural stability were found between the monocular blur conditions compared to normal vision, or between the dominant and non-dominant monocular blur conditions on either the firm or foam surfaces. Conclusions: Findings indicate that binocular blur significantly impairs postural stability, and suggests that improvements in postural stability may justify first-eye cataract surgery, particularly during somatosensory disruption. Postural stability was not significantly impaired in the monocular cataract blur conditions compared to the normal vision condition, nor was there any effect of ocular dominance on postural stability in the presence of monocular cataract blur.

In Bed with Autobiography: Unravelling the Fabric of Gender and Genre in Women’s Bed(room) Confessions

This thesis consists of a confessional narrative, What My Mother Doesn’t Know, and an accompanying exegesis, And Why I Should (Maybe) Tell Her. The creative piece employs the confessional mode as a subversive device in three separate narratives, each of which situates the bed as a site of resistance. The exegesis investigates how this self-disclosure in a domestic space flouts the governing rules of self-representation, specifically: telling the truth, respecting privacy and displaying normalcy. The female confession, I argue, creates an alternative space in women’s autobiography where notions of truth-telling can be undermined, the political dimensions of personal experience can be uncovered and the discourse of normality can be negotiated. In particular, women’s confessions told in, on or about the bed, dismantle the genre’s illusion of self and confirm the representative aspects of women’s experience. Framed within these parameters of power and powerlessness, the exegesis includes textual analyses of Charlotte Perkins Gilman’s The Yellow Wallpaper (1892), Tracey Emin’s My Bed (1999) and Lauren Slater’s Lying (2000), each of which exposes in a bedroom space, the author’s most obscure, intimate and traumatic experiences. Situated firmly within and against the genre’s traditional masculine domain, the exegesis also includes mediations on the creative work that validate the bed as my fabric for confession.