Moments of flux in intermediary liability for copyright infringement

This chapter provides an overview of a recent shift in regulatory strategies to address copyright infringement toward enlisting the assistance of general purpose Internet Service Providers. In Australia, the High Court held in 2012 that iiNet, a general purpose ISP, had no legal duty to police what its subscribers did with their internet connections. We provide an overview of three recent developments in Australian copyright law since that decision that demonstrate an emerging shift in the way that obligations are imposed on ISPs to govern the actions of their users without relying on secondary liability. The first is a new privately negotiated industry code that introduces a 'graduated response' system that requires ISPs to pass on warnings to subscribers who receive allegations of infringement. The second involves a recent series of Federal Court cases where rightsholders made a partially successful application to require ISPs to hand over the identifying details of subscribers whose households are alleged to have infringed copyright. The third is a new legislative scheme that will require ISPs to block access to foreign websites that 'facilitate' infringement. We argue that these shifts represent a greater sophistication in approaches to enrolling general purpose intermediaries in the regulatory project. We also suggest that these shifts represent a potentially disturbing trend towards enforcement of copyright law in a way that does not provide strong safeguards for the legitimate constitutional due process interests of users. We conclude with a call for greater attention and research to better understand how intermediaries make decisions when governing the conduct of users, how those decisions may be influenced by both state and non-state actors, and how the rights of individuals to due process can be adequately protected.

Copyright, fair use and the Australian Constitution

There has been much debate over recent years about whether Australian copyright law should adopt a fair use doctrine. In this chapter we argue by pointing to the historical record that the incorporation of the term 'copyrights' in the Australian Constitution embeds a notion of balance and fair use in Australian law and that this should be taken into account when interpreting the Australian Copyright Act 1968. English case law in the 18th and 19th centuries developed a principle that copyright infringement did not occur where a person had made a fair use of a work. Fair use was generally established where the defendant had made a productive use that did more than alter the original work for the purpose of evading liability, and where the defendant had made an original contribution to the resulting work. Additionally, fairness was shown by a use that did not supersede or prejudice the market for the original work. At the time of including the copyright power in the Constitution, the UK Parliament’s understanding of “copyrights” included the notion of fair use as it had been developed in U.K. precedent. In this chapter we argue that the work “copyrights” in the Australia Constitution takes its definition from copyright in 1900 and as it has evolved since. Importantly, the word “copyrights” is infused with a particular meaning that incorporates the principle of copyright balance. The constitutional notion of copyright, therefore, is not that of an unlimited power to prevent all copying. Rather, copyright distinguishes between infringing copying and non-infringing copying and grants to the copyright owner only the power to control the former. Non-infringing copying includes well-accepted limitations on the copyright owner’s rights, including the copying of ideas, the copying of public domain works and the copying of insubstantial parts of copyrighted works. In this chapter we argue that non-infringing copying also includes copying to make a fair use of a work. The sections that distinguish infringing copying from non-infringing copying in the Copyright Act 1968 are sections 36(1) and 101(1), which define infringement as the doing, without licence, of an “act comprised in the copyright”. An infringing copy is an act comprised the copyright, whereas a non-infringing copy is not. We argue that space for fair uses of copyrighted works is built into the Copyright Act 1968 through these sections, because a fair use will not produce an infringing copy and so is not an act comprised in the copyright.

Duty and Control in Intermediary Copyright Liability: An Australian Perspective

In the internet age, copyright owners are increasingly looking to online intermediaries to take steps to prevent copyright infringement. Sometimes these intermediaries are closely tied to the acts of infringement; sometimes – as in the case of ISPs – they are not. In 2012, the Australian High Court decided the Roadshow Films v iiNet case, in which it held that an Australian ISP was not liable under copyright’s authorization doctrine, which asks whether the intermediary has sanctioned, approved or countenanced the infringement. The Australian Copyright Act 1968 directs a court to consider, in these situations, whether the intermediary had the power to prevent the infringement and whether it took any reasonable steps to prevent or avoid the infringement. It is generally not difficult for a court to find the power to prevent infringement – power to prevent can include an unrefined technical ability to disconnect users from the copyright source, such as an ISP terminating users’ internet accounts. In the iiNet case, the High Court eschewed this broad approach in favor of focusing on a notion of control that was influenced by principles of tort law. In tort, when a plaintiff asserts that a defendant should be liable for failing to act to prevent harm caused to the plaintiff by a third party, there is a heavy burden on the plaintiff to show that the defendant had a duty to act. The duty must be clear and specific, and will often hinge on the degree of control that the defendant was able to exercise over the third party. Control in these circumstances relates directly to control over the third party’s actions in inflicting the harm. Thus, in iiNet’s case, the control would need to be directed to the third party’s infringing use of BitTorrent; control over a person’s ability to access the internet is too imprecise. Further, when considering omissions to act, tort law differentiates between the ability to control and the ability to hinder. The ability to control may establish a duty to act, and the court will then look to small measures taken to prevent the harm to determine whether these satisfy the duty. But the ability to hinder will not suffice to establish liability in the absence of control. This chapter argues that an inquiry grounded in control as defined in tort law would provide a more principled framework for assessing the liability of passive intermediaries in copyright. In particular, it would set a higher, more stable benchmark for determining the copyright liability of passive intermediaries, based on the degree of actual, direct control that the intermediary can exercise over the infringing actions of its users. This approach would provide greater clarity and consistency than has existed to date in this area of copyright law in Australia.

High frequency fire alters C:N:P stoichiometry in forest litter

Fire is a major driver of ecosystem change and can disproportionately affect the cycling of different nutrients. Thus, a stoichiometric approach to investigate the relationships between nutrient availability and microbial resource use during decomposition is likely to provide insight into the effects of fire on ecosystem functioning. We conducted a field litter bag experiment to investigate the long-term impact of repeated fire on the stoichiometry of leaf litter C, N and P pools, and nutrient-acquiring enzyme activities during decomposition in a wet sclerophyll eucalypt forest in Queensland, Australia. Fire frequency treatments have been maintained since 1972, including burning every two years (2yrB), burning every four years (4yrB) and no burning (NB). C:N ratios in freshly fallen litter were 29-42% higher and C:P ratios were 6-25% lower for 2yrB than NB during decomposition, with correspondingly lower 2yrB N:P ratios (27-32) than for NB (34-49). Trends in litter soluble and microbial N:P ratios were similar to the overall litter N:P ratios across fire treatments. Consistent with these, the ratio of activities for N-acquiring to P-acquiring enzymes in litter was higher for 2yrB than NB while 4yrB was generally intermediate between 2yrB and NB. Decomposition rates of freshly fallen litter were significantly lower for 2yrB (72±2% mass remaining at the end of experiment) than for 4yrB (59±3%) and NB (62±3%), a difference that may be related to effects of N limitation, lower moisture content, and/or litter C quality. Results for older mixed-age litter were similar to those for freshly fallen litter although treatment differences were less pronounced. Overall, these findings show that frequent fire (2yrB) decoupled N and P cycling, as manifested in litter C:N:P stoichiometry and in microbial biomass N:P ratio and enzymatic activities. These data indicate that fire induced a transient shift to N-limited ecosystem conditions during the post-fire recovery phase. This article is protected by copyright. All rights reserved.

Promoting innovation and development by rethinking the role of copyright limitations and exceptions in Vietnam

This thesis examines how Vietnamese copyright law should develop to promote innovation and development in the digital age. It focuses on the important role of limitations and exceptions to copyright in encouraging access to and reuse of copyright material. This research provide important recommendations for how the scope of copyright limitations and exceptions might be expanded by adopting fair use in order to embrace new opportunities provided by the digital economy. Furthermore, it suggests that Vietnam should extend the scope of some important provisions that provide privileges for education, libraries and people with disabilities.

Exploiting the beta distribution-based reputation model in recommender system

Reputation systems are employed to measure the quality of items on the Web. Incorporating accurate reputation scores in recommender systems is useful to provide more accurate recommendations as recommenders are agnostic to reputation. The ratings aggregation process is a vital component of a reputation system. Reputation models available do not consider statistical data in the rating aggregation process. This limitation can reduce the accuracy of generated reputation scores. In this paper, we propose a new reputation model that considers previously ignored statistical data. We compare our proposed model against state-of the-art models using top-N recommender system experiment.

The Trans-Pacific Partnership, Copyright Law and Education

There is much concern across the Pacific rim about the impact of the Trans-Pacific Partnership (TPP) upon public education. The secretive trade agreement involves a dozen nations across the Pacific, including Australia, New Zealand, Canada and the United States, and Indonesia may soon join. Although the text was finalised at the Atlanta talks in October 2015, the Agreement has not yet been made public. (The NTEU has joined with other unions and civil society organisations in calling for the agreement to be revealed to facilitate public debate before any decisions are made by Parliament.) So whilst we cannot examine all the text that may impact on public educations, WikiLeaks has published the final version of the Intellectual Property Chapter of the TPP. The Intellectual Property Chapter of the TPP alone, with its copyright term extension, limits on copyright exceptions, and enforcement measures, will have a significant impact for educators and public education.

'SABAM v scarlet: Evidence of an emerging backlash against corporate copyright lobbies in Europe?

The symbols, signs, and traces of copyright and related intellectual property laws that appear on everyday texts, objects, and artifacts have multiplied exponentially over the past 15 years. Digital spaces have revolutionized access to content and transformed the ways in which content is porous and malleable. In this volume, contributors focus on copyright as it relates to culture. The editors argue that what «counts» as property must be understood as shifting terrain deeply influenced by historical, economic, cultural, religious, and digital perspectives. Key themes addressed include issues of how: • Culture is framed, defined, and/or identified in conversations about intellectual property; • The humanities and other related disciplines are implicated in intellectual property issues; • The humanities will continue to rub up against copyright (e.g., issues of authorship, authorial agency, ownership of texts); • Different cultures and bodies of literature approach intellectual property, and how competing dynasties and marginalized voices exist beyond the dominant U.S. copyright paradigm. Offering a transnational and interdisciplinary perspective, Cultures of Copyright offers readers – scholars, researchers, practitioners, theorists, and others – key considerations to contemplate in terms of how we understand copyright’s past and how we chart its futures.

Pollinator limitation and the effect of breeding systems on plant reproduction in forest fragments

Reproduction of plants in fragmented habitats may be limited because of lower diversity or abundance of pollinators, and/or variation in local plant density. We assessed natural fruit set and pollinator limitation in ten species of woody plants in natural and restored fragments in the Pondicherry region of southern India, to see whether breeding system of plants (self-compatible and self-incompatible) affected fruit set. We tested whether the number of flowering individuals in the fragments affected the fruit set and further examined the adult and sapling densities of self-compatible (SC) and self-incompatible (SI) species. We measured the natural level of fruit set and pollinator limitation (calculated as the difference in fruit set between hand cross-pollinated and naturally pollinated flowers). Our results demonstrate that there was a higher level of pollinator limitation and hence lower levels of natural fruit set in self-incompatible species as compared to self-compatible species. However, the hand cross-pollinated flowers in SC and SI species produced similar levels of fruit set,further indicating that lower fruit set was due to pollinator limitation and not due to lack of cross-compatible individuals in the fragments. There was no significant relation between number of flowering individuals and the levels of natural fruit set, except for two species Derris ovalifolia, Ixora pavetta. In these species the natural fruit set decreased with increasing population size, again indicating pollinator limitation. The adult and sapling densities in self-compatible species were significantly higher than inself-incompatible species. These findings indicate that the low reproductive output in self-incompatible species may eventually lead to lower population sizes. Restoration of pollinator services along with plant species in fragmented habitats is important for the long-term conservation of biodiversity. (C) 2009 Elsevier Masson SAS. All rights reserved.

Simulation design in information systems research: example of studying it value cocreation with NK model

As an emerging research method that has showed promising potential in several research disciplines, simulation received relatively few attention in information systems research. This paper illustrates a framework for employing simulation to study IT value cocreation. Although previous studies identified factors driving IT value cocreation, its underlying process remains unclear. Simulation can address this limitation through exploring such underlying process with computational experiments. The simulation framework in this paper is based on an extended NK model. Agent-based modeling is employed as the theoretical basis for the NK model extensions.

Rough Justice or Zero Tolerance? - Reassessing the Nature of Copyright in Light of Collective Licensing (Part I)

Starting point in the European individualistic copyright ideology is that an individual author creates a work and controls the use of it. However, this paper argues that it is (and has always been) impossible to control the use of works after their publication. This has also been acknowledged by the legislator, who has introduced collective licensing agreements because of this impossibility. Since it is impossible to rigorously control the use of works this writing "Rough Justice or Zero Tolerance - Reassessing the Nature of Copyright in Light of Collective Licensing" examines what reality of copyright is actually about. Finding alternative (and hopefully more "true") ways to understand copyright helps us to create alternative solutions in order to solve possible problems we have as it comes e.g. to use of content in online environment. The paper makes a claim that copyright is actually about defining negotiation points for different stakeholders and that nothing in the copyright reality prevents us from defining e.g. a new negotiation point where representatives of consumers would meet representatives of right holders in order to agree on the terms of use for certain content types in online environment.