A fair use project for Australia: Copyright law and creative freedom

This essay provides a critical assessment of the Fair Use Project based at the Stanford Center for Internet and Society. In evaluating the efficacy of the Fair Use Project, it is worthwhile considering the litigation that the group has been involved in, and evaluating its performance. Part 1 outlines the history of the Stanford Center for Internet and Society, and the aims and objectives of the Fair Use Project. Part 2 considers the litigation in Shloss v. Sweeney over a biography concerning Lucia Joyce, the daughter of the avant-garde literary great, James Joyce. Part 3 examines the dispute over the Harry Potter Lexicon. Part 4 looks at the controversy over the Shepard Fairey poster of President Barack Obama, and the resulting debate with Associated Press. Part 5 of the essay considers the intervention of the Fair Use Project as an amicus curiae in the ‘Column case’. Part 6 explores the participation of the Fair Use Project as an amicus curiae in the litigation over 60 Years Later, an unauthorised literary sequel to J.D. Salinger’s The Catcher in the Rye. Part 7 of the essay investigates the role of the Fair Use project in disputes over copyright law and musical works. Part 8 investigates the role of the Fair Use Project as an advocate in disputes over copyright law, fair use, documentary films, and internet videos. The conclusion has main three arguments. First, it contends that Australia should establish a Fair Use Project to support creative artists in litigation over copyright exceptions. Second, it maintains that Australia should adopt a flexible, open-ended defence of fair use, and draw upon the rich jurisprudence in the United States on the fair use doctrine. Finally, this paper argues that support should be given at an international level to the proposal for a Treaty on Access to Knowledge.

Crystal palaces: Copyright law and public architecture

This paper investigates copyright law and public architecture in the context of cultural institutions of Australia. Part 1 examines the case of the Sydney Opera House to illustrate the past position of architects in respect of copyright law. It goes onto consider the framework laid down by the Copyright Amendment (Moral Rights) Act 2000 (Cth) to resolve copyright disputes over moral rights and architecture. Part 2 considers the argument over the proposed renovations to the National Gallery of Australia between Dr Brian Kennedy and the original architect Colin Madigan. Part 3 finally deals with the allegations that Ashton Raggatt McDougall, the architects of the National Museum of Australia, plagiarised the designs of Daniel Libeskind for the Jewish Berlin Museum.

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

A Submission to the Inquiry into the Resale Royalty Right for Visual Artists Bill 2008 (Cth)

A right of resale, or droit de suite (a right to follow), is a legislative instrument under intellectual property law, which enables artists to receive a percentage of the sale price whenever artistic works are resold. A French legal scholar, Albert Vaunois, first articulated the need for a 'droit de suite' in connection with fine art back in 1893. The French Government introduced a scheme to protect the right of resale in 1920, after controversy over artists living in poverty, while public auction houses were profiting from the resale of their artistic creations. In the United States, there has been less support for a right of resale amongst legislatures. After lobbying from artists such as the king of pop art, Robert Rauschenberg, the state of California passed the Resale Royalties Act in 1977. At a Federal level, the United States Congress has shown some reluctance in providing national recognition for a right of resale in the United States. A number of other European countries have established a right of resale. In 2001, the European Council adopted the Artists' Resale directive and recognised that the 'artist's resale right forms an integral part of copyright and is an essential prerogative for authors.' In 2006, the United Kingdom promulgated regulations, giving effect to a right of resale in that jurisdiction. However, a number of Latin American and African countries have established a right of resale. The New Zealand Parliament has debated a bill on a right of resale.

Damned to fame: The moral rights of the Beckett estate

The Company B production of Samuel Beckett's Waiting for Godot raises important questions about copyright law, moral rights, and dramatic works. The playwright's nephew and executor, Edward Beckett, threatened to bring a legal action against the Sydney company for breach of contract on the grounds that unauthorised music appeared in the production. The Company B production denied that the contract made any such express provisions. The director Neil Armfield complained: 'In coming here with its narrow prescriptions, its dead controlling hand, the Beckett estate seems to me to be the enemy of art'. In the biography Damned to fame, James Knowlson documents a number of other proceedings taken by Beckett and his agents to control the productions of his work: 'He was often represented as a tyrannical figure, an arch-controller of his work, ready to unleash fiery thunderbolts onto the head of any bold, innovative director, unwilling to follow his text and stage directions to the last counted dot and precisely timed pause.' However, Knowlson notes that Beckett was inconsistent in his willingness to use legal action: 'It made a tremendous difference if he liked and respected the persons involved or if he had been able to listen to their reasons for wanting to attempt something highly innovative or even slightly different'. Famously, in 1988, Beckett brought legal action against a Dutch theatre company, which wanted to stage a production of Waiting for Godot, with women acting all the roles. His lawyer argued that the integrity of the text was violated because actresses were substituted for the male actors asked for in the text. The judge in the Haarlem court ruled that the integrity of the play had not been violated, because the performance showed fidelity to the dialogue and the stage directions of the play. By contrast, in 1992, a French court held a stage director was liable for an infringement of Beckett's moral right of integrity because the director had staged Waiting for Godot with the two lead roles played by women. In 1998, a United States production of Waiting for Godot with a racially mixed cast attracted legal threats amid accusations it had 'injected race into the play'. In the 2000 New York Fringe Festival, a company made light of this ongoing conflict between the Beckett estate and artistic directors. The work was entitled: The complete lost works of Samuel Beckett as found in an envelope (partially burned) in a dustbin in Paris labelled 'Never to be performed. Never. Ever. EVER! Or I'll sue! I'LL SUE FROM THE GRAVE!'. The plot concerned a fight between three producers and the Beckett estate. In the wake of such disputes, Beckett and later his estate sought to tighten production contracts to state that no additions, omissions or alterations should be made to the text of the play or the stage directions and that no music, special effects or other supplements should be added without prior consent.

How to be alone: New Dimensions in Privacy Law

The book, New Dimensions in Privacy Law, has an arresting cover — a pack of paparazzi take photographs, with their flash-bulbs popping and exploding,like starbursts in the sky. The collection explores the valiant efforts of courts and parliaments to defend the privacy of individuals against such unwanted intrusions.

Islamic fund and asset management: The opportunities and challenges of Islamic REITs

Purpose This paper aims to present a review on the issues and challenges for Islamic Funds and Asset Management, particularly the Islamic Real Estate Trusts (I-REITs) available in Malaysia. The key difference between the Islamic and the conventional investment vehicle is mainly the fund needs to adhere to the Shariah framework. Design/methodology/approach The paper reviews and synthesises the relevant literature on the framework of Islamic Asset and Fund Management, particularly the Islamic Real Estate Investment Trusts. The paper then provides insights for further research to address the issues and consider the Shariah framework applicable to other further research works. Findings The paper highlights the opportunities and challenges of Islamic REITs globally. There is a lack of the standardisation in the screening methodology used by the Malaysian I- REITs and Singapore I-REITs as the latter follows the Gulf Cooperation Council (GCC) guideline to capture the investors mainly from the Gulf countries. In term of tenants’ selection, there is similarity between I-REITs and the Socially Responsible Investment (SRI) or ethical investment. The gap between the investments can be bridged if the Islamic funds skewed the investment portfolio towards the social and ethical investment. Even though there is a limitation in the investment universe, I-REITs provide better diversification option and show better performance compared to the equity market during the economic crisis. The introduction of the Shariah-compliant REITs index for Asia Pacific allows the fund managers to benchmark the performance of either the funds or the sector with other investment vehicles. This will encourage more investors to consider I-REIT in the decision making of the asset allocation portfolio and broadening the horizon of the investment. Originality/value The contribution of the study is the examination and analysis of the Shariah framework currently adopted for Islamic REITs. This will assist in the identification of specific issues associated with Islamic REITs that will need to be addressed in the development and application of further research in the aspect of the management and operations to increase the efficiency level and better performance in order to capture more investors in this specific and promising market.

Rethinking Culture and Diversity in Early Childhood Preservice Teacher Education: Looking at Teaching and Learning Through an Interdisciplinary Lens

Early Childhood Education (ECE) has a long history of building foundations for children to achieve their full potential, enabling parents to participate in the economy while children are cared for, addressing poverty and disadvantage, and building individual, community and societal resources. In so doing, ECE has developed a set of cultural practices and ways of knowing that shape the field and the people who work within it. ECE, consequently, is frequently described as unique and special (Moss, 2006; Penn, 2011). This works to define and distinguish the field while, simultaneously, insulating it from other contexts, professions, and ideas. Recognising this dualism illuminates some of the risks and challenges of operating in an insular and isolated fashion. In the 21st century, there are new challenges for children, families and societies to which ECE must respond if it is to continue to be relevant. One major issue is how ECE contributes to transition towards more sustainable ways of living. Addressing this contemporary social problem is one from which Early Childhood teacher education has been largely absent (Davis & Elliott, 2014), despite the well recognised but often ignored role of education in contributing to sustainability. Because of its complexity, sustainability is sometimes referred to as a ‘wicked problem’ (Rittel & Webber, 1973; Australian Public Service Commission, 2007) requiring alternatives to ‘business as usual’ problem solving approaches. In this chapter, we propose that addressing such problems alongside disciplines other than Education enables the Early Childhood profession to have its eyes opened to new ways of thinking about our work, potentially liberating us from the limitations of our “unique” and idiosyncratic professional cultures. In our chapter, we focus on understandings of culture and diversity, looking to broaden these by exploring the different ‘cultures’ of the specialist fields of ECE and Design (in this project, we worked with students studying Architecture, Industrial Design, Landscape Architecture and Interior Design). We define culture not as it is typically represented, i.e. in relation to ideas and customs of particular ethnic and language groups, but to the ideas and practices of people working in different disciplines and professions. We assert that different specialisms have their own ‘cultural’ practices. Further, we propose that this kind of theoretical work helps us to reconsider ways in which ECE might be reframed and broadened to meet new challenges such as sustainability and as yet unknown future challenges and possibilities. We explore these matters by turning to preservice Early Childhood teacher education (in Australia) as a context in which traditional views of culture and diversity might be reconstructed. We are looking to push our specialist knowledge boundaries and to extend both preservice teachers and academics beyond their comfort zones by engaging in innovative interdisciplinary learning and teaching. We describe a case study of preservice Early Childhood teachers and designers working in collaborative teams, intersecting with a ‘real-world’ business partner. The joint learning task was the design of an early learning centre based on sustainable design principles and in which early Education for Sustainability (EfS) would be embedded Data were collected via focus group and individual interviews with students in ECE and Design. Our findings suggest that interdisciplinary teaching and learning holds considerable potential in dismantling taken-for-granted cultural practices, such that professional roles and identities might be reimagined and reconfigured. We conclude the chapter with provocations challenging the ways in which culture and diversity in the field of ECE might be reconsidered within teacher education.

Visions of Past Glory: Nationalism and the Construction of Early Finnish History

The study is an examination of how the distant national past has been conceived and constructed for Finland from the mid-sixteenth century to the Second World War. The author argues that the perception and need of a national 'Golden Age' has undergone several phases during this period, yet the perceived Greatness of the Ancient Finns has been of great importance for the growth and development of the fundamental concepts of Finnish nationalism. It is a question reaching deeper than simply discussing the Kalevala or the Karelianism of the 1890s. Despite early occurrences of most of the topics the image-makers could utilize for the construction of an Ancient Greatness, a truly national proto-history only became a necessity after 1809, when a new conceptual 'Finnishness' was both conceived and brought forth in reality. In this process of nation-building, ethnic myths of origin and descent provided the core of the nationalist cause - the defence of a primordial national character - and within a few decades the antiquarian issue became a standard element of the nationalist public enlightenment. The emerging, archaeologically substantiated, nationhood was more than a scholarly construction: it was a 'politically correct' form of ethnic self-imaging, continuously adapting its message to contemporary society and modern progress. Prehistoric and medieval Finnishness became even more relevant for the intellectual defence of the nation during the period of Russian administrative pressure 1890-1905. With independence the origins of Finnishness were militarized even further, although the 'hot' phase of antiquarian nationalism ended, as many considered the Finnish state reestablished after centuries of 'dependency'. Nevertheless, the distant past of tribal Finnishness and the conceived Golden Age of the Kalevala remained obligating. The decline of public archaeology is quite evident after 1918, even though the national message of the antiquarian pursuits remained present in the history culture of the public. The myths, symbols, images, and constructs of ancient Finnishness had already become embedded in society by the turn of the century, like the patalakki cap, which remains a symbol of Finnishness to this day. The method of approach is one of combining a broad spectrum of previously neglected primary sources, all related to history culture and the subtle banalization of the distant past: school books, postcards, illustrations, festive costumes, drama, satirical magazines, novels, jewellery, and calendars. Tracing the origins of the national myths to their original contexts enables a rather thorough deconstruction of the proto-historical imaginary in this Finnish case study. Considering Anthony D. Smith's idea of ancient 'ethnies' being the basis for nationalist causes, the author considers such an approach in the Finnish case totally misplaced.

Identifying major contributing sources to odour annoyance using a non-specific gas sensor array

Identification of major contributors to odour annoyance in areas with multiple emission sources is necessary to address and resolve odour disputes. In an effort to develop an appropriate tool for this task, odour samples were collected on-site at a piggery and an abattoir (the major odour sources in the area) and at surrounding off-site areas, then analysed using a commercial non-specific chemical sensor array to develop an odour fingerprint database. The developed odour fingerprint database was analysed using two pattern recognition algorithms including a partial least squares-discriminant analysis (PLS-DA) and a Kohonen self-organising map (KSOM). The KSOM model could identify odour samples sourced from the piggery shed 15, piggery pond 8, piggery pond 9, abattoir, motel and others with mean percentage values of 77.5, 65.0, 90.2, 75.7, 44.8 and 64.6%, respectively.

Christian-Muslim Dialogue : Perspectives of Four Lebanese Thinkers

This study describes and analyses two Lebanese Muslims and two Lebanese Christians ideas about Christian-Muslim dialogue, its nature, aims, and methods and its different dimensions, which include doctrinal, ethical, and social dimensions. On the basis of the analysis, the four thinkers contributions for promoting constructive dialogue are evaluated. The persons studied are two religious authorities, the Shiite Great Ayatollah Muhammad Husayn Fadlallah (b. 1935) and the Eastern Orthodox Metropolitan of Mount Lebanon, Georges Khodr (b. 1923), and two academic scholars, Doctor Mahmoud Ayoub (b. 1935) and Doctor, Father Mouchir Aoun (b. 1964), from the Shiite and Greek Catholic communities, respectively. The method of the study is systematic analysis. The sources consist of the four thinkers writings on Christian-Muslim relations, the most of which have been published in Lebanon in the 1990s and 2000s in the Arabic language. In their general guidelines for Christian-Muslim dialogue, the four authors do not offer any novel or unusual insights. However, their dialogue visions are multi-faceted, motivating interreligious encounter both on religious and practical grounds and clarifying the theological grounds and socio-political conditions of this endeavour. The major challenge appears to be the tension between loyalty to one s own convictions and taking into account the particular self-understanding of the other. While this tension may be ultimately unsolvable, it is obvious that linking dialogue tightly to missionary motivations or certain theological agenda imposed on the others is not conducive for better mutual understanding. As for how diverse theologies of religions affect interreligious dialogue, narrow exclusivism hardly promotes mutual knowledge and appreciation, but also inclusive and pluralistic positions have their particular dilemmas. In the end, dialogue is possible from diverse positions on theology of religions. All the authors discuss the theological themes of divine revelation, concept of God, and human condition and ultimate destiny. The two religions particular views on these issues cannot be reconciled, but the authors offer diverse means to facilitate mutual understanding on them, such as increasing mutual knowledge, questioning certain traditional condemnations, showing theological parallels between the two religions, and transcending doctrinal disagreements by stressing common religious experience or ethical concerns. Among the theological themes, especially the concept of God seems to offer possibilities for better understanding than has traditionally been the case. Significantly, all the four authors maintain that Christians and Muslims share the faith in the one God, irrespective of their disagreements about the nature of his oneness. Basic ethical principles are not discussed as widely by the four authors as might be expected, which may reflect the shared cultural background and common ethical values of the Lebanese Muslims and Christians. On this level, Christians alienation from the Islamic law appears as the most significant challenge to mutual understanding, while neighbourly love and the golden rule of ethics offer a fruitful basis for further dialogue. As for the issue of political power-sharing in Lebanon, it is clear that the proposal of an Islamic state is problematic in a country with a sizable Christian minority and a heterogeneous Muslim population. Some form of democracy seems more viable for a multireligious country, but the question remains how to retain religion as a vital force in society, which is felt to be important by all the four Lebanese authors.

Cultural considerations in will-making in Australia: A case study of Islamic or Sharia-compliant wills

This article explores the influence of cultural and religious beliefs and laws on how individuals make decisions about asset distribution through wills, drawing on a case study of Islamic will makers. Findings highlight diversity in beliefs and practices within Australian Islamic communities. When drafting a will people from culturally diverse backgrounds need to accommodate their religious and cultural values and local law. Implications of research findings for legal policy and practice in Australia are discussed.

An Analysis of the Concept of Citizenship: Legal, Political and Social Dimensions

The thesis aims at analyzing concept of citizenship in political philosophy. The concept of citizenship is a complex one: it does not have a definitive explication, but it nevertheless is a very important category in contemporary world. Citizenship is a powerful ideal, and often the way a person is treated depends on whether he or she has the status of a citizen. Citizenship includes protection of a person’s rights both at home and abroad. It entails legal, political and social dimension: the legal status as a full member of society, the recognition of that status by fellow citizens and acting as a member of society. The thesis discusses these three dimensions. Its objective is to show how all of them, despite being insufficient in some aspects, reach something important about the concept. The main sources of the thesis are Civic Republicanism by Iseult Honohan (Routledge 2002), Republicanism by Philip Pettit (Clarendon Press 1997), and Taking Rights Seriously by Ronald Dworkin (1997). In addition, the historical part of the thesis relies mainly on the works of Aristotle, Immanuel Kant, Adam Smith, Quentin Skinner, James Pocock and James Tully. The writings of Will Kymlicka, John Rawls, Chantal Mouffe, and Shane Phelan are referred to in the presentation and critique of the liberal tradition of thought. Hannah Arendt and Seyla Benhabib’s analysis of Arendt’s philosophy both address the problematic relations between human rights and nation-states as the main guarantors of rights. The chapter on group rights relies on Peter Jones’ account of corporate and collective rights, after which I continue to Seumas Miller’s essay on the (liberal) account of group rights and their relation to the concept of citizenship. Republicanism and Political Theory (2002) edited by Cécile Laborde and John Maynor is also references. David Miller and Maurizio Viroli represent the more “rooted” version of republicanism. The thesis argues that the full concept of citizenship should be seen as containing legal, political and social dimensions. The concept can be viewed from all of these three angles. The first means that citizenship is connected with certain rights, like the right to vote or stand for election, the right to property and so on. In most societies, the law guarantees these rights to every citizen. Then there is also the social dimension, which can be said to be as important as the legal one: the recognition of equality and identities of others. Finally, there is the political dimension, meaning the importance of citizens’ participation in the society, which is discussed in connection with the contemporary account of republicanism. All these issues are discussed from the point of view of groups demanding for group-specific rights and equal recognition. The challenge with these three aspects of citizenship is, however, that they are difficult to discuss under one heading. Different theories or discourses of citizenship each approach the subject from different starting points, which make reconciling them sometimes hard. The fundamental questions theories try to answer may differ radically depending on the theory. Nevertheless, in order to get the whole image of what the citizenship discourses are about all the aspects deserve to be taken into account.

Literatura, loucura e imaginário social no Brasil: final do século XIX e início do século XX

O presente trabalho tem como principal objetivo analisar o imaginário social sobre a loucura a partir das produções literárias de autores brasileiros do final do século XIX e início do século XX. O período escolhido para realização desta pesquisa deve-se ao fato de ter sido cenário do advento do alienismo no Brasil, com a criação do primeiro hospício brasileiro e da primeira lei de assistência aos alienados, o que revela um processo de transição da visão mística e religiosa em relação à loucura para uma visão científica. É neste contexto que se destacam as obras de Machado de Assis, Olavo Bilac e Lima Barreto que foram selecionadas para análise desta pesquisa e que têm em comum o tema da loucura e questões afins. Sob o aspecto metodológico a pesquisa teve como base fundamental o referencial teórico da sociologia compreensiva, proposta por Michel Maffesoli, particularmente na noção de imaginário social, a partir de uma crítica ao modelo dominante da produção de conhecimento. Foram elaboradas seis grandes noções, concebidas a partir das obras literárias, são elas: ciência, alienação, institucionalização, periculosidade, produção de identidade e medicalização. Além das discussões, vários fragmentos exemplificam e possibilitam uma melhor discussão de cada uma destas noções. Concluiu-se, em consonância com Antonio Candido, ser evidente a importância da literatura, assim como de outras formas de arte e cultura, para compreender o imaginário social de uma época sobre os temas em questão, da mesma forma em que a própria literatura contribui para produzi-los