Free Sherlock: The copyright battle of Baker Street

Sherlock Holmes faces his greatest challenge – since his fight to the death with Professor James Moriarty at Reichenbach Falls. Who owns Sherlock Holmes, the world’s greatest detective? Is it the estate of Sir Arthur Conan Doyle? Or the mysterious socialite Andrea Plunket? Or does Sherlock Holmes belong to the public? This is the question currently being debated in copyright litigation in the United States courts, raising larger questions about copyright law and the public domain, the ownership of literary characters, and the role of sequels, adaptations, and mash-ups.

Australians may get their own stop online piracy act #SOPA: Christmas time for copyright owners

Christmas has come early for copyright owners in Australia. The film company, Roadshow, the pay television company Foxtel, and Rupert Murdoch's News Corp and News Limited--as well as copyright industries--have been clamoring for new copyright powers and remedies. In the summer break, the Coalition Government has responded to such entreaties from its industry supporters and donors, with a new package of copyright laws and policies. There has been significant debate over the proposals between the odd couple of Attorney-General George Brandis and the Minister for Communications, Malcolm Turnbull. There have been deep, philosophical differences between the two Ministers over the copyright agenda. The Attorney-General George Brandis has supported a model of copyright maximalism, with strong rights and remedies for the copyright empires in film, television, and publishing. He has shown little empathy for the information technology companies of the digital economy. The Attorney-General has been impatient to press ahead with a copyright regime. The Minister for Communications, Malcolm Turnbull, has been somewhat more circumspect, recognizing that there is a need to ensure that copyright laws do not adversely impact upon competition in the digital economy. The final proposal is a somewhat awkward compromise between the discipline-and-punish regime preferred by Brandis, and the responsive regulation model favored by Turnbull. In his new book, Information Doesn't Want to Be Free: Laws for the Internet Age, Cory Doctorow has some sage advice for copyright owners: Things that don't make money: Complaining about piracy. Calling your customers thieves. Treating your customers like thieves. In this context, the push by copyright owners and the Coalition Government to have a copyright crackdown may well be counter-productive to their interests.

An elegy for Greg Ham: Copyright law, the Kookaburra case, and remix culture

The ‘Kookaburra’ case was a tragic and controversial copyright dispute, highlighting the need for copyright law reform by the Australian Parliament. In the Kookaburra case, a copyright action was brought by Larrikin Records against Men at Work’s song ‘Down Under’, alleging copyright infringement of the ‘Kookaburra’ song composed by Marion Sinclair. The dispute raised a host of doctrinal matters. There was disquiet over the length of the copyright term. There were fierce contests as to the copyright ownership of the ‘Kookaburra’ song. The litigation raised questions about copyright infringement and substantiality – particularly in relation to musical works. The ‘Kookaburra’ case highlighted frailties in Australia’s regime of copyright exceptions. The litigation should spur the Australian Law Reform Commission to make recommendations for law reform in its inquiry Copyright and the Digital Economy. This article provides a critical evaluation of the options of a defence for transformative use; a defence for fair use; and statutory licensing. The ‘Kookaburra’ case also examines the question of appropriate remedies in respect of copyright infringement. The conclusion considers the implications of the Kookaburra case for other forms of musical works – including digital sampling, mash-ups, and creative remixes. It finishes with an elegy for Greg Ham – paying tribute to the multi-instrumentalist for Men at Work.

A creature of statute: Copyright law and legal formalism

This article argues that copyright law is not just a creature of statute, but it is also a social and imaginative contruct. It evaluates a number of critiques of legal formalism. Part 1 examines whether the positive rules and principles of copyright law are the product of historical contingency and political expediency. Part 2 considers the social operation of copyright law in terms of its material effects and cultural significance. Part 3 investigates the future of copyright law, in light of the politics of globalisation and the impact of new information technologies.

Bangarra Dance Theatre: Copyright law and Indigenous culture

This article considers the artistic and legal practices of Bangarra Dance Theatre in a case study of copyright law management in relation to Indigenous culture. It is grounded in the particular local experience, knowledge and understanding of copyright law displayed by the performing arts company. The first part considers the special relationship between Bangarra Dance Theatre and the Munyarrun Clan. It examines the contractual arrangements developed to recognise communal ownership. The next section examines the role of the artistic director and choreographer. It looks at the founder, Carole Johnson, and her successor, Stephen Page. The third part of the article focuses on the role of the composer, David Page. It examines his ambition to set up a Indigenous recording company, Nikinali. Part 4 focuses upon the role of the artistic designers. It looks at the contributions of artistic designers such as Fiona Foley. Part 5 deals with broadcasts of performances on television, film, and multi-media. Part 6 considers the collaborations of Bangarra Dance Theatre with the Australian Ballet, and the Sydney Organising Committee for the Olympic Games. The conclusion considers how Bangarra Dance Theatre has played a part ina general campaign to increase protection of Indigenous copyright law.

Canadian rhapsody: Copyright law and research libraries

This article considers the ground-breaking Supreme Court of Canada decision in The Law Society of Upper Canada v CCH Canadian Limited. The matter involved legal publishers bringing an action for copyright infringement against the Law Society of Upper Canada for operating a photocopy and custom copy service at the Great Library of Osgoode Hall. The Supreme Court of Canada decision laid down important precedents in relation to originality, authorisation, and the defence of fair dealing. The ruling has been hailed as ’one of the strongest pro-user rights decisions from any high court in the world, showing what it means to do more than pay mere lip service to balance in copyright'. This decision will have important implications for the regulation of new technologies. The approach has been applied in two decisions dealing copyright law and the Internet - the Canadian Federal Court case of BMG Canada v John Doe, and the Supreme Court of Canada ’Tariff 22' case. The Supreme Court of Canada decision in The Law Society of Upper Canada v CCH Canadian Limited provides an impetus to reconsider the judicial interpretation of user rights in Australian jurisprudence.

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.

Daubism: Copyright law and artistic works

An artistic controversy over a group of landscape painters called the Daubists provided impetus for copyright law reform in Australia in the early 1990's. In the first exhibition of Daubism in 1991 driller Jet Armstrong painted a crop circle over a painting of the Olgas by Charles Bannon - an artist, print-maker, and the father of the State Premier at the time, John Bannon. He called the resulting work, Crop Circles on a Bannon Landscape. Armstrong also inserted an inverted crucifix over a painting of the Flinders Ranges by Bannon, and renamed the work The Crop Circle Conspiracy Landscape. In response, Bannon took legal action against Armstrong in the Federal Court of Australia on the grounds of false attribution and defamation. He won an interlocutory injunction against Armstrong and the gallery, but then reached a settlement with the Daubists. An anonymous buyer purchased the work for $650 on the condition that it was returned to the painter. In his fight against the Daubists, Bannon received help and support from the National Association for the Visual Arts (NAVA). This professional group used the controversy to campaign for the reform of copyright law - in particular, the need for a moral rights regime. The artistic controversy over the Daubists was a catalyst for the introduction of the Copyright Amendment (Moral Rights) Act 2000 (Cth) in Australia. It offers an illuminating case study of the operation of copyright law in the visual arts.

Heretic: Copyright law and dramatic works

The production of the play Heretic in 1996 prompted a debate over copyright and the dramatic arts in Australia. The playwright David Williamson argued that the role of the writer was supreme. Although he was willing to acknowledge the contributions of other collaborators, the playwright did not believe that these interpreters deserved copyright protection. The director Wayne Harrison advocated a more collaborative vision of the performing arts. He believed that the role of the director and the position of the producer deserved greater legal recognition. Furthermore he was also willing to countenance limited rights for performers. This article argues that recognition should be accorded to all of the main collaborators in the performing arts. It contends that economic rights and moral rights should not be just limited to the writer, the director, and the producer, but they should extend to the performers and the designers.

Rip, mix, burn: The politics of peer to peer and copyright law

Whereas Lessig's recent work engages with questions of culture and creativity in society, this paper looks at the role of culture and creativity in the law. The paper evaluates the Napster, DeCSS, Felten and Sklyarov litigation in terms of the new social, legal, economic and cultural relations being produced. This involves a deep discussion of law's economic relations, and the implications of this for litigation strategy. The paper concludes with a critique of recent attempts to define copyright law in terms of first amendment rights and communicative freedom.

Robbery under arms: Copyright law and the Australia-United States free trade agreement

TThis article considers the radical, sweeping changes to Australian copyright law wrought by the Australia–United States Free Trade Agreement 2004 (AUSFTA). It contends that the agreement will result in a “piracy of the public domain”. Under this new regime, copyright owners will be able to obtain greater monopoly profits at the expense of Australian consumers, libraries and research institutions, as well as intermediaries, such as Internet service providers. Part One observes that the copyright term extension in Australia to life of the author plus 70 years for works will have a negative economic and cultural impact — with Australia’s net royalty payments estimated to be up to $88 million higher per year. Part Two argues that the adoption of stronger protection of technological protection measures modelled upon the Digital Millennium Copyright Act 1998 (U.S.) will override domestic policy–making processes, such as the Phillips Fox Digital Agenda Review, and judicial pronouncements such as the Stevens v Sony litigation. Part Three questions whether the new safe harbours protection for Internet service providers will adversely affect the sale of Telstra. This article concludes that there is a need for judicial restraint in interpreting the AUSFTA. There is an urgent call for the Federal Government to pass ameliorating reforms — such as an open–ended defence of fair use and a mechanism for orphan works. There is a need for caution in negotiating future bilateral trade agreements — lest the multinational system for the protection of copyright law be undermined.

The dead poets society: The copyright term and the public domain

In a victory for corporate control of cultural heritage, the Supreme Court of the United States has rejected a constitutional challenge to the Sonny Bono Copyright Term Extension Act 1998 (U.S.) by a majority of seven to two. This paper evaluates the litigation in terms of policy debate in a number of discourses — history, intellectual property law, constitutional law and freedom of speech, cultural heritage, economics and competition policy, and international trade. It argues that the extension of the copyright term will inhibit the dissemination of cultural works through the use of new technologies — such as Eric Eldred's Eldritch Press and Project Gutenberg. It concludes that there is a need to resist the attempts of copyright owners to establish the Sonny Bono Copyright Term Extension Act 1998 (U.S.) as an international model for other jurisdictions — such as Australia.

The Demidenko affair: Copyright law, plagiarism and ridicule

This article provides an account of one of Australia's great literary hoaxes - the Demidenko affair. In particular, it focuses upon the accusations that Helen Darville plagiarised a number of historical and literary texts in her novel, The Hand That Signed The Paper. This article considers how the dispute was interpreted in three different contexts - the literary community, the legal system, and the media. Part 1 examines how writers, publishers, and editors understood the controversy in terms of the aesthetics and ethics of plagiarism. Part 2 details how lawyers framed the discussion in light of economic rights and moral rights under copyright law. Part 3 deals with the media attention upon the personalities and politics of the scandal. The conclusion charts the competition between these various communities over who should resolve the dispute.

The Cougar Point tuff: Implications for thermochemical zonation and longevity of high-temperature, large-volume silicic magmas of the Miocene Yellowstone hotspot

The 12.7-10.5 Ma Cougar Point Tuff in southern Idaho, USA, consists of 10 large-volume (>10²-10³ km³ each), high-temperature (800-1000 °C), rhyolitic ash-flow tuffs erupted from the Bruneau-Jarbidge volcanic center of the Yellowstone hotspot. These tuffs provide evidence for compositional and thermal zonation in pre-eruptive rhyolite magma, and suggest the presence of a long-lived reservoir that was tapped by numerous large explosive eruptions. Pyroxene compositions exhibit discrete compositional modes with respect to Fe and Mg that define a linear spectrum punctuated by conspicuous gaps. Airfall glass compositions also cluster into modes, and the presence of multiple modes indicates tapping of different magma volumes during early phases of eruption. Equilibrium assemblages of pigeonite and augite are used to reconstruct compositional and thermal gradients in the pre-eruptive reservoir. The recurrence of identical compositional modes and of mineral pairs equilibrated at high temperatures in successive eruptive units is consistent with the persistence of their respective liquids in the magma reservoir. Recurrence intervals of identical modes range from 0.3 to 0.9 Myr and suggest possible magma residence times of similar duration. Eruption ages, magma temperatures, Nd isotopes, and pyroxene and glass compositions are consistent with a long-lived, dynamically evolving magma reservoir that was chemically and thermally zoned and composed of multiple discrete magma volumes.

Low δ18O zircons from the Bruneau-­Jarbidge eruptive center: A key to crustal anatexis along the track of the Yellowstone hotspot

The Bruneau-Jarbidge eruptive center (BJEC) in the central Snake River Plain, Idaho, USA consists of the Cougar Point Tuff (CPT), a series of ten, high-temperature (900-1000°C) voluminous ignimbrites produced over the explosive phase of volcanism (12.8-10.5 Ma) and more than a dozen equally high-temperature rhyolite lava flows produced during the effusive phase (10.5-8 Ma). Spot analyses by ion microprobe of oxygen isotope ratios in 210 zircons demonstrate that all of the eruptive units of the BJEC are characterized by zircon δ¹⁸O values ≤ 2.5‰, thus documenting the largest low δ¹⁸O silicic volcanic province known on Earth (>10⁴ km³). There is no evidence for voluminous normal δ¹⁸O magmatism at the BJEC that precedes generation of low δ¹⁸O magmas as there is at other volcanic centers that generate low δ¹⁸O magmas such as Heise and Yellowstone. At these younger volcanic centers of the hotspot track, such low δ¹⁸O magmas represent ~45 % and ~20% respectively of total eruptive volumes. Zircons in all BJEC tuffs and lavas studied (23 units) document strong δ¹⁸O depletion (median CPT δ¹⁸OZrc = 1.0‰, post-CPT lavas = 1.5‰) with the third member of the CPT recording an excursion to minimum δ¹⁸O values (δ¹⁸OZrc= -1.8‰) in a supereruption > 2‰ lower than other voluminous low δ¹⁸O rhyolites known worldwide (δ¹⁸OWR ≤0.9 vs. 3.4‰). Subsequent units of the CPT and lavas record a progressive recovery in δ¹⁸OZrc to ~2.5‰ over a ~ 4 m.y. interval (12 to 8 Ma). We present detailed evidence of unit-to-unit systematic patterns in O isotopic zoning in zircons (i.e. direction and magnitude of Δcore-rim), spectrum of δ¹⁸O in individual units, and zircon inheritance patterns established by re-analysis of spots for U-Th-Pb isotopes by LA-ICPMS and SHRIMP. In conjunction with mineral thermometry and magma compositions, these patterns are difficult to reconcile with the well-established model for "cannibalistic" low δ¹⁸O magma genesis at Heise and Yellowstone. We present an alternative model for the central Snake River Plain using the modeling results of Leeman et al. (2008) for ¹⁸O depletion as a function of depth in a mid-upper crustal protolith that was hydrothermally altered by infiltrating meteoric waters prior to the onset of silicic magmatism. The model proposes that BJEC silicic magmas were generated in response to the propagation of a melting front, driven by the incremental growth of a vast underlying mafic sill complex, over a ~5 m.y. interval through a crustal volume in which a vertically asymmetric δ¹⁸OWR gradient had previously developed that was sharply inflected from ~ -1 to 10‰ at mid-upper crustal depths. Within the context of the model, data from BJEC zircons are consistent with incremental melting and mixing events in roof zones of magma reservoirs that accompany surfaceward advance of the coupled mafic-silicic magmatic system.