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.

District Court debt decisions

This article examines the distinction between a "liquidated demand" and a claim for "unliquidated damages" and the implications of that distinction on the procedure for obtaining a judgment if the defendant fails to file a notice of intention to defend.

The development of a conceptual framework for a district 4-Year Pavement Management Plan, implementation of network-level project screening process

The Texas Department of Transportation (TxDOT) is concerned about the widening gap between preservation needs and available funding. Funding levels are not adequate to meet the preservation needs of the roadway network; therefore projects listed in the 4-Year Pavement Management Plan must be ranked to determine which projects should be funded now and which can be postponed until a later year. Currently, each district uses locally developed methods to prioritize projects. These ranking methods have relied on less formal qualitative assessments based on engineers’ subjective judgment. It is important for TxDOT to have a 4-Year Pavement Management Plan that uses a transparent, rational project ranking process. The objective of this study is to develop a conceptual framework that describes the development of the 4-Year Pavement Management Plan. It can be largely divided into three Steps; 1) Network-Level project screening process, 2) Project-Level project ranking process, and 3) Economic Analysis. A rational pavement management procedure and a project ranking method accepted by districts and the TxDOT administration will maximize efficiency in budget allocations and will potentially help improve pavement condition. As a part of the implementation of the 4-Year Pavement Management Plan, the Network-Level Project Screening (NLPS) tool including the candidate project identification algorithm and the preliminary project ranking matrix was developed. The NLPS has been used by the Austin District Pavement Engineer (DPE) to evaluate PMIS (Pavement Management Information System) data and to prepare a preliminary list of candidate projects for further evaluation.

Problem-solving courts, therapeutic jurisprudence and the constitution : if two is company, is three a crowd?

Court costs, resource-intensive trials, booming prison populations and the obduracy of recidivism rates all present as ugly excesses of the criminal law adversarial paradigm. To combat these excesses, problem-solving courts have evolved with an edict to address the underlying issues that have caused an individual to commit a crime. When a judge seeks to help a problem-solving court participant deal with issues like addiction, mental health or poverty, they are performing a very different role to that of a judicial officer in the traditional court hierarchy. They are no longer the removed, independent arbiter — a problem-solving court judge steps into the ‘arena’ with the participant and makes active use of their judicial authority to assist in rehabilitation and positive behavioural change. Problem-solving court judges employing the principles of therapeutic jurisprudence appreciate that their interaction with participants can have therapeutic and anti-therapeutic consequences. This article will consider how the deployment of therapeutic measures (albeit with good intention) can lead to the behavioural manifestation of partiality and bias on the part of problem-solving court judges. Chapter III of the Commonwealth Constitution will then be analysed to highlight why the operation and functioning of problem solving courts may be deemed unconstitutional. Part IV of this article will explain how a problem-solving court judge who is not acting impartially or independently will potentially contravene the requirements of the Constitution. It will finally be suggested that judges who possess a high level of emotional intelligence will be the most successful in administering an independent and impartial problem solving court.

Three-dimensional geological modelling and multivariate statistical analysis of water chemistry data to analyse and visualise aquifer structure and groundwater composition in the Wairau Plain, Marlborough District, New Zealand

Concerns regarding groundwater contamination with nitrate and the long-term sustainability of groundwater resources have prompted the development of a multi-layered three dimensional (3D) geological model to characterise the aquifer geometry of the Wairau Plain, Marlborough District, New Zealand. The 3D geological model which consists of eight litho-stratigraphic units has been subsequently used to synthesise hydrogeological and hydrogeochemical data for different aquifers in an approach that aims to demonstrate how integration of water chemistry data within the physical framework of a 3D geological model can help to better understand and conceptualise groundwater systems in complex geological settings. Multivariate statistical techniques(e.g. Principal Component Analysis and Hierarchical Cluster Analysis) were applied to groundwater chemistry data to identify hydrochemical facies which are characteristic of distinct evolutionary pathways and a common hydrologic history of groundwaters. Principal Component Analysis on hydrochemical data demonstrated that natural water-rock interactions, redox potential and human agricultural impact are the key controls of groundwater quality in the Wairau Plain. Hierarchical Cluster Analysis revealed distinct hydrochemical water quality groups in the Wairau Plain groundwater system. Visualisation of the results of the multivariate statistical analyses and distribution of groundwater nitrate concentrations in the context of aquifer lithology highlighted the link between groundwater chemistry and the lithology of host aquifers. The methodology followed in this study can be applied in a variety of hydrogeological settings to synthesise geological, hydrogeological and hydrochemical data and present them in a format readily understood by a wide range of stakeholders. This enables a more efficient communication of the results of scientific studies to the wider community.

Rights versus reality : the difficulty of providing 'access to English' in Queensland courts

This project reviewed the success of the Aboriginal English in the Courts booklet which was published by the Department of Justice and Attorney-General in 2000, with a view to improving access to the courts for speakers of Aboriginal English in Queensland. Surveys and interview were conducted with judges, magistrates, prosecutors, legal aid lawyers and courts registry staff. The feedback from the research has shown that the handbook has had little impact on ‘access to English’ in Queensland courts. The problems relate to the tension between protecting the rights of the accused under an adversarial system and legitimately introducing the issues of language uncertainty to the court in a non-prejudicial manner. In addition, the interviews have brought to light emerging language issues in remote communities that cannot be remedied under existing language policy mechanisms, such as the provision of interpreters or friends of court.

Web 2.0, social networking and the courts

In the last decade or so, we have witnessed the growth of web 2.0 technology and social networking platforms, and their rapid rise in popularity as methods of social interaction and communication. Yet, platforms such as Facebook and Twitter are not just online social phenomena, but can impact on the way the law and courts operate. This article highlights the issues that legal practitioners and courts need to be aware of in engaging with this technology, and suggests possible ways forward.

District Court of Queensland Act 1968 s 68 : jurisdiction in pre-proceedings applications under Personal Injuries Proceedings Act 2002

In Woolworths Ltd v Graham [2007] QDC 301 Searles DCJ struck out a pre-proceedings application under the Personal Injuries Proceedings Act 2002 (Qld)on the basis that the material before the Court was not sufficient to attract the jurisdiction of the District Court.The decision serves more broadly as a reminder that the District Court is an inferior court of defined and limited jurisdiction and that any proceedings brought in it must be demonstrably within the jurisdiction conferred on that court by legislation.

Pre-sentence Report, Magisterial Discourse and Agency in Youth Courts in England

This article draws on interviews with Youth Court magistrates to examine if and how discourses, strategies and technologies of risk governance have affected Youth Court magistrates in England and Wales. The aim of the article is to detail the complex relationship between magisterial agency in decision making and youth justice policies which focus on risk control and management. The article demonstrates that, contrary to what might be assumed from the youth and risk governance theoretical literature, Youth Offending Team risk assessments form only one part of the information used by magistrates to explain young people’s presence in courts. This article concludes that magisterial decision making is framed not by formal, expert assessments of risk, but by magistrates’ claims that they are ‘knowing outsiders’, who through judicious use of information presented to them and their own life experiences are able to make objective judgements about both the risk assessments authored by Youth Offending Teams and the young lawbreakers before them.

Indigeneity and the likelihood of imprisonment in Queensland’s adult and children’s courts

Australian research on Indigenous sentencing disparities of the standard of international work is somewhat recent. Contrary to expectations based on international research, Australian studies generally have not found Indigenous offenders to be treated substantively more harshly than non-Indigenous offenders in similar circumstances. However, this research has primarily focused on adult higher courts, with little attention to lower courts and children’s courts. In this article, we examine whether Indigeneity has a direct impact on the judicial decision to incarcerate for three courts (adult higher, adult lower, children’s higher court) in Queensland. We found no significant differences in the likelihood of a sentence of incarceration in the higher courts (adult and children’s). In contrast, in the lower courts, Indigenous defendants were more likely to be imprisoned than non-Indigenous defendants when sentenced under statistically similar circumstances.

Physiological, perceptual and technical responses to on-court tennis training on hard and clay courts

The aim of this study was to investigate the effect of court surface (clay v hard-court) on technical, physiological and perceptual responses to on-court training. Four high-performance junior male players performed two identical training sessions on hard and clay courts, respectively. Sessions included both physical conditioning and technical elements as led by the coach. Each session was filmed for later notational analysis of stroke count and error rates. Further, players wore a global positioning satellite device to measure distance covered during each session; whilst heart rate, countermovement jump distance and capillary blood measures of metabolites were measured before, during and following each session. Additionally a respective coach and athlete rating of perceived exertion (RPE) were measured following each session. Total duration and distance covered during of each session were comparable (P>0.05; d<0.20). While forehand and backhands stroke volume did not differ between sessions (P>0.05; d<0.30); large effects for increased unforced and forced errors were present on the hard court (P>0.05; d>0.90). Furthermore, large effects for increased heart rate, blood lactate and RPE values were evident on clay compared to hard courts (P>0.05; d>0.90). Additionally, while player and coach RPE on hard courts were similar, there were large effects for coaches to underrate the RPE of players on clay courts (P>0.05; d>0.90). In conclusion, training on clay courts results in trends for increased heart rate, lactate and RPE values, suggesting sessions on clay tend towards higher physiological and perceptual loads than hard courts. Further, coaches appear effective at rating player RPE on hard courts, but may underrate the perceived exertion of sessions on clay courts.

Open access to judgments : Creative Commons licences and the Australian courts

Internet technologies have fundamentally changed the way we obtain access to legal documents and information about the law. However, for judgments of courts and tribunals, copyright management and licensing practices have not kept pace with the digital and online technologies which are now ubiquitous in the web 2.0 era. Under the provisions of the Copyright Act 1968 and the licensing statements on the Australian courts’ websites, judgments may generally be read online, downloaded, reproduced and printed out for personal, non-commercial use or ”in house” use by an organisation. However, beyond these permitted acts, the extent to which judgments can be copied and distributed in digital form online remains unclear. Open content licences (in particular, the Creative Commons (CC) licences) offer an effective mechanism for managing copyright in judgments in a manner that supports their wide public dissemination and reuse while also protecting their integrity and accuracy.