Creative Commons and the creative industries

This paper explores the growing significance of legal questions to innovation and creative practice in what are now being termed the creative industries. Noting that the case for strong copyright protection as the cornerstone of innovation is highly contested, it explores the significance of Creative Commons licences as an alternative to Digital Rights Management and copyright law. It also introduces the case studies of music, online computer games, and ‘remix culture’ that are covered in this special issue of Media and Arts Law Review.

The new middle class meets the creative class : the Master of Business Administration (MBA) and creative innovation in 21st-century China

‘MBA fever’ in China needs to be understood in the wider context of forces driving structural change in China’s relation to the global knowledge economy. The rise of a ‘new middle class’ in China is connected to the new claims for cultural leadership of an emergent ‘creative class’, which generates new issues about the relevance of the MBA in China, in terms of its relevance to Chinese economic circumstances, and its flexibility and capacity to respond to accumulation strategies that emphasise innovation, creativity and entrepreneurship.

Source of concern for IT purchasing decisions

The open source juggernaut seems to be gaining pace. The open source model certainly has appeal - cutting costs, while at the same time potentially increasing staff and system efficiencies. However, open source poses a number of significant legal challenges and risks for those that incorporate it. Clients need to look carefully before leaping.

Sharing with Creative Commons : a business model for content creators

Creative Commons (CC) is often seen as a social movement, dismissed by critics as a tool for hobbyists or academics who do not sell their creations to make a living. However, this paper argues that the licensing of creative copyright works under a CC licence does not preclude commercial gain. If used wisely, CC licences can be a useful tool for creators in their quest for commercial success. In particular, this paper argues that the sharing of creative works online under a CC licence allows creators to circumvent traditional distribution channels dominated by content intermediaries, whilst maintaining a level of control over their copyright works (i.e. explicitly reserving some rights but not all rights). This will be illustrated by case studies on how CC is being used by content creators and intermediaries respectively, and how successful their respective methods are in harnessing this tool.

Review of regulatory framework for environmental information

If Australian scientists are to fully and actively participate in international scientific collaborations utilising online technologies, policies and laws must support the data access and reuse objectives of these projects. To date Australia lacks a comprehensive policy and regulatory framework for environmental information and data generally. Instead there exists a series of unconnected Acts that adopt historically-based, sector-specific approaches to the collection, use and reuse of environmental information. This paper sets out the findings of an analysis of a representative sample of Australian statutes relating to environmental management and protection to determine the extent to which they meet best practice criteria for access to and reuse of environmental information established in international initiatives. It identifies issues that need to be addressed in the legislation governing environmental information to ensure that Australian scientists are able to fully engage in international research collaborations.

Access to medicine and the dangers of patent linkage : lessons from Bayer Corp v. Union of India

In February 2010, the Delhi High Court delivered its decision in Bayer Corp v Union of India in which Bayer had appealed against an August 2009 decision of the same court. Both decisions prevented Bayer from introducing the concept of patent linkage into India’s drug regulatory regime. Bayer appealed to the Indian Supreme Court, the highest court in India, which agreed on 2 March 2010 to hear the appeal. Given that India is regarded as a global pharmaceutical manufacturer of generic medications, how its judiciary and government perceive their international obligations has a significant impact on the global access to medicines regime. In rejecting the application of patent linkage, the case provides an opportunity for India to further acknowledge its international human rights obligations.

Immediate indefeasibility : is it under threat?

Immediate indefeasibility has been adopted in Australia for close to 40 years. Recently however, and against the backdrop of economic fragility and global deregulation, there has been a polite questioning of its place. In Australia, some may argue that case law developments and legislative reform have placed indefeasibility under the microscope — in New Zealand, a similar telescoping by the respected views of their Law Commission. This note examines these reforms. It concludes that these reforms do not place immediate indefeasibility under threat. Rather, they modify and adapt the doctrine to fit within the context of contemporary financial instruments. Nevertheless, changes have so far been piecemeal, and its time for a consistent and logical examination of this issue to occur on the national, rather than the stage of each state.

Physicality in the Information Age : a normative perspective on the patent eligibility of non-physical methods

There has been much conjecture of late as to whether the patentable subject matter standard contains a physicality requirement. The issue came to a head when the Federal Circuit introduced the machine-or-transformation test in In re Bilski and declared it to be the sole test for determining subject matter eligibility. Many commentators criticized the test, arguing that it is inconsistent with Supreme Court precedent and the need for the patent system to respond appropriately to all new and useful innovation in whatever form it arises. Those criticisms were vindicated when, on appeal, the Supreme Court in Bilski v. Kappos dispensed with any suggestion that the patentable subject matter test involves a physicality requirement. In this article, the issue is addressed from a normative perspective: it asks whether the patentable subject matter test should contain a physicality requirement. The conclusion reached is that it should not, because such a limitation is not an appropriate means of encouraging much of the valuable innovation we are likely to witness during the Information Age. It is contended that it is not only traditionally-recognized mechanical, chemical and industrial manufacturing processes that are patent eligible, but that patent eligibility extends to include non-machine implemented and non-physical methods that do not have any connection with a physical device and do not cause a physical transformation of matter. Concerns raised that there is a trend of overreaching commoditization or propertization, where the boundaries of patent law have been expanded too far, are unfounded since the strictures of novelty, nonobviousness and sufficiency of description will exclude undeserving subject matter from patentability. The argument made is that introducing a physicality requirement will have unintended adverse effects in various fields of technology, particularly those emerging technologies that are likely to have a profound social effect in the future.

Using data mining to predict road crash count with a focus on skid resistance values

Road crashes cost world and Australian society a significant proportion of GDP, affecting productivity and causing significant suffering for communities and individuals. This paper presents a case study that generates data mining models that contribute to understanding of road crashes by allowing examination of the role of skid resistance (F60) and other road attributes in road crashes. Predictive data mining algorithms, primarily regression trees, were used to produce road segment crash count models from the road and traffic attributes of crash scenarios. The rules derived from the regression trees provide evidence of the significance of road attributes in contributing to crash, with a focus on the evaluation of skid resistance.

Crown copyright

Copyright protects much of the creative, cultural, educational, scientific and informational material generated by federal, State/Territory and local governments and their constituent departments and agencies. Governments at all levels develop, manage and distribute a vast array of materials in the form of documents, reports, websites, datasets and databases on CD or DVD and files that can be downloaded from a website. Under the Copyright Act 1968 (Cth), with few exceptions government copyright is treated the same as copyright owned by non-government parties insofar as the range of protected materials and the exclusive proprietary rights attaching to them are concerned. However, the rationale for recognizing copyright in public sector materials and vesting ownership of copyright in governments is fundamentally different to the main rationales underpinning copyright generally. The central justification for recognizing Crown copyright is to ensure that government documents and materials created for public administrative purposes are disseminated in an accurate and reliable form. Consequently, the exclusive rights held by governments as copyright owners must be exercised in a manner consistent with the rationale for conferring copyright ownership on them. Since Crown copyright exists primarily to ensure that documents and materials produced for use in the conduct of government are circulated in an accurate and reliable form, governments should exercise their exclusive rights to ensure that their copyright materials are made available for access and reuse, in accordance with any laws and policies relating to access to public sector materials. While copyright law vests copyright owners with extensive bundles of exclusive rights which can be exercised to prevent others making use of the copyright material, in the case of Crown copyright materials these rights should rarely be asserted by government to deviate from the general rule that Crown copyright materials will be available for “full and free reproduction” by the community at large.

Standardisation and patent ambush : potential liability under Australian competition law

This article examines the problem of patent ambush in standard setting, where patent owners are sometimes able to capture industry standards in order to secure monopoly power and windfall profits. Because standardisation generally introduces high switching costs, patent ambush can impose significant costs on downstream manufacturers and consumers and drastically reduce the efficiency gains of standardisation.This article considers how Australian competition law is likely to apply to patent ambush both in the development of a standard (through misrepresenting the existence of an essential patent) and after a standard is implemented (through refusing to license an essential patented technology either at all or on reasonable and non-discriminatory (RAND) terms). This article suggests that non-disclosure of patent interests is unlikely to restrained by Part IV of the Trade Practices Act (TPA), and refusals to license are only likely to be restrained if the refusal involves leveraging or exclusive dealing. By contrast, Standard Setting Organisations (SSOs) which seek to limit this behaviour through private ordering may face considerable scrutiny under the new cartel provisions of the TPA. This article concludes that SSOs may be best advised to implement administrative measures to prevent patent hold-up, such as reviewing which patents are essential for the implementation of a standard, asking patent holders to make their licence conditions public to promote transparency, and establishing forums where patent licensees can complain about licence terms that they consider to be unreasonable or discriminatory. Additionally, the ACCC may play a role in authorising SSO policies that could otherwise breach the new cartel provisions, but which have the practical effect of promoting competition in the standards setting environment.

Privacy v IP Litigation : preliminary third party discovery on the Internet

The enforcement of Intellectual Property rights poses one of the greatest current threats to the privacy of individuals online. Recent trends have shown that the balance between privacy and intellectual property enforcement has been shifted in favour of intellectual property owners. This article discusses the ways in which the scope of preliminary discovery and Anton Piller orders have been overly expanded in actions where large amounts of electronic information is available, especially against online intermediaries (service providers and content hosts). The victim in these cases is usually the end user whose privacy has been infringed without a right of reply and sometimes without notice. This article proposes some ways in which the delicate balance can be restored, and considers some safeguards for user privacy. These safeguards include restructuring the threshold tests for discovery, limiting the scope of information disclosed, distinguishing identity discovery from information discovery, and distinguishing information preservation from preliminary discovery.

Getting more than the judgment debtor can give?

Prior to the decision of the High Court in Black v Garnock (2007) 230 CLR 438 it was an established principle in Queensland that a judgment creditor acting under an enforcement warrant could take no interest beyond what the judgment debtor could give. However, the decision of the High Court called this principle into question. This article examines the current position in the context of s 120 of the Land Title Act 1994 (Qld) , Queensland Titles Office practice and standard contractual provisions. This examination is further informed by the recent decision of Martin J in Secure Funding Pty Ltd v Doneley [2010] QSC 91.

A changing landscape : The mortgagee's power of sale in Queensland

In Australia, the extent of a mortgagee’s duty when exercising power of sale has long been the subject of conjecture. With the advent of the global financial crisis in the latter part of 2008, there has been some concern to ensure that the interests of mortgagors are adequately protected. In Queensland, concern of this type resulted in the enactment of the Property Law (Mortgagor Protection) Amendment Act 2008 (Qld). This amending legislation operates to both extend and strengthen the operation of s 85 of the Property Law Act 1974 (Qld) which regulates the mortgagee’s power of sale in Queensland. This article examines the impact of this amending legislation which was hastily introduced and passed by the Queensland Parliament without consultation and which introduces a level of prescription in relation to a sale under a prescribed mortgage which is without precedent elsewhere in Australia.