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 article 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.

Bringing the farmer perspective to agricultural robots

The research reported in this paper explores autonomous technologies for agricultural farming application and is focused on the development of multiple-cooperative agricultural robots (AgBots). These are highly autonomous, small, lightweight, and unmanned machines that operate cooperatively (as opposed to a traditional single heavy machine) and are suited to work on broadacre land (large-scale crop operations on land parcels greater than 4,000m2). Since this is a new, and potentially disruptive technology, little is yet known about farmer attitudes towards robots, how robots might be incorporated into current farming practice, and how best to marry the capability of the robot with the work of the farmer. This paper reports preliminary insights (with a focus on farmer-robot control) gathered from field visits and contextual interviews with farmers, and contributes knowledge that will enable further work toward the design and application of agricultural robotics.

Bloomsday: Copyright estates and cultural festivals

Copyright estates have been unduly empowered by the extension of the term of copyright protection in Europe, the United States, Australia and elsewhere. The Estate of the Irish novelist, James Joyce, has been particularly aggressive in policing his revived copyrights. The "keepers of the flame" have relied upon threats of legal action to discourage the production of derivative works based upon the canonical texts of the novelist. The Estate has also jealously guarded the reputation of the author by vetoing the use of his work in various scholarly productions. Most radically of all, the grandson Stephen Joyce threatened to take legal action to prevent the staging of "Rejoyce Dublin 2004", a festival celebrating the centenary of Bloomsday. In response, the Irish Parliament rushed through emergency legislation, entitled the Copyright and Related Rights (Amendment) Act 2004 (Ireland) to safeguard the celebrations. The legislation clarified that a person could place literary and artistic works on public exhibition, without breaching the copyright vested in such cultural texts. Arguably, though, the ad hoc legislation passed by the Irish Parliament is inadequate. The Estate of James Joyce remains free to exercise its suite of economic and moral rights to control the use and adaptation of works of the Irish novelist. It is contended that copyright law needs to be revised to promote the interests of libraries and other cultural institutions. Most notably, the defence of fair dealing should be expanded to allow for the transformative use of copyright works, particularly in respect of adaptations and derived works. There should be greater scope for compulsory licensing and crown acquisition of revived copyrights.

The valley of the dolls: Brand protection and artistic parody

In the case of Mattel Inc v Walking Mountain Productions, the toy doll manufacturer Mattel sought to prohibit a Utah photographer called Thomas Forsythe from producing and selling a series of 78 photographs entitled "Food Chain Barbie". The work had strong social and political overtones. The artist said that he chose to parody Barbie in his photographs because he wanted to challenge the beauty myth and the objectification of women. He observed: "Barbie is the most enduring of those products that feed on the insecurities of our beauty and perfection-obsessed consumer culture." The company Mattel argued that the photographs infringed its copyrights, trade marks, and trade dress. It was concerned that the artistic works would erode the brand of Barbie by wrongfully sexualising its blonde paragon of womanhood. However, Lew J of the Central District Court of California granted summary judgment for the photographer. The Court of Appeals upheld this verdict. Pregerson J held that the use of the manufacturer's copyrighted doll in parodic photographs constituted a fair use of copyright works. His Honour held that the use of manufacturer's "Barbie" mark and trade dress did not amount to trade mark infringement or dilution. This article provides a case commentary upon the Court of Appeals decision in Mattel Inc v Walking Mountain Productions, and its wider ramifications for the treatment of artistic parody under copyright law and trade mark law. It contends that the decision highlights the need for reform in Australian jurisprudence and legislation in respect of artistic parody.

QoE modelling for VP9 and H.265 videos on mobile devices

Current mobile devices and streaming video services support high definition (HD) video, increasing expectation for more contents. HD video streaming generally requires large bandwidth, exerting pressures on existing networks. New generation of video compression codecs, such as VP9 and H.265/HEVC, are expected to be more effective for reducing bandwidth. Existing studies to measure the impact of its compression on users’ perceived quality have not been focused on mobile devices. Here we propose new Quality of Experience (QoE) models that consider both subjective and objective assessments of mobile video quality. We introduce novel predictors, such as the correlations between video resolution and size of coding unit, and achieve a high goodness-of-fit to the collected subjective assessment data (adjusted R-square >83%). The performance analysis shows that H.265 can potentially achieve 44% to 59% bit rate saving compared to H.264/AVC, slightly better than VP9 at 33% to 53%, depending on video content and resolution.

Mapping the experiential in contemporary dance

The research questions how a ‘lived experience’ of contemporary dance could be deepened for the audience. It presents a series of choreographic ‘tools’ to create alternative frameworks of presentation that challenge the dominant modes of creation, presentation and meaning making in contemporary dance. The five tools established and applied in this research are: variations of site, liminality, audience agency, audience-performer proximity and performer qualities. These tools are framed as a series of calibrated scales that allow choreographers to map decisions made in the studio in relation to potential audience engagement. The research houses multiple presentation formats from the traditional to the avant-garde and opens up possibilities for analysis of a wide range of artistic dance works. This research presents options for choreographers to map how audiences experience their work and offers opportunities to engage audiences in new and exciting ways.

More than just food: Field visits to an emergency relief centre

Emergency relief centres provide financial, housing, food and other types of support to families and individuals who experience financial hardship. These centres are non-profit, often government supported organizations that rely on the help of their volunteers and social workers. This paper reports on our preliminary findings from field visits to one such centre called Communify, in the inner west of Brisbane, Australia. Communify runs an emergency food relief facility for people who find themselves in a crisis or temporarily unable to afford groceries. Over a period of five months, we did several field visits to the centre and carried out 21 short in-situ interviews, with a mix of Communify clients and volunteers. Our results shed light on people’s experiences of financial hardship and their interactions with the emergency relief centre. In particular, issues related to their perceived values and stigmas associated with their experiences are highlighted in our findings. We identify opportunities for design that can empower people struggling with financial hardship.

Understanding the use of a bug tracking system in a global software development setup

Bug fixing is a highly cooperative work activity where developers, testers, product managers and other stake-holders collaborate using a bug tracking system. In the context of Global Software Development (GSD), where software development is distributed across different geographical locations, we focus on understanding the role of bug trackers in supporting software bug fixing activities. We carried out a small-scale ethnographic fieldwork in a software product team distributed between Finland and India at a multinational engineering company. Using semi-structured interviews and in-situ observations of 16 bug cases, we show that the bug tracker 1) supported information needs of different stake holder, 2) established common-ground, and 3) reinforced issues related to ownership, performance and power. Consequently, we provide implications for design around these findings.

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.

Playing alone, playing with others: Differences in player experience and indicators of wellbeing

Video game play is becoming an increasingly social experience, yet we have little understanding of how social and solitary modes of play differ in terms of the player experience or interact with player wellbeing. An online survey (n = 446) collected data on players' current mode of play, their game play experience, social capital gained from game play and wellbeing. The results indicate that social and solitary players differ in terms of degree of autonomy, presence and relatedness experienced, while the different types of social play are associated with differences in relatedness and social capital experienced. Different predictors of wellbeing were also present across solitary and social player samples. People who play games on their own experience greater wellbeing when experiencing in-game autonomy. Social players experience greater wellbeing when playing with strangers, and when experiencing in-game bridging social capital. All players experienced increased wellbeing with age and decreased wellbeing with greater amounts of play.

Indicators of wellbeing in recreational video game players

Video game play is a popular entertainment choice, yet we have a limited understanding of the potential wellbeing benefits associated with recreational play. An online survey (final sample, n = 297) addresses this by investigating how the player experience related to wellbeing. The impact of amount of play, game genre, mode of play (social or solitary play) and the psychological experience of play (flow and need satisfaction) on a multi-dimensional measure of wellbeing (emotional, psychological and social) was examined via hierarchical regression. Age, gender, the play of casual games compared to shooters, and in-game experiences of flow, autonomy and relatedness were associated with increases in dimensions of wellbeing.

Evoking poetics of memory through performing site: Naik Naik, a Malaysian Australian collaboration in the world heritage setting of Melaka

Memory, time and metaphor are central triggers for artists in exploring and shaping their creative work. This paper examines the place of artists as ‘memory-keepers’, and ‘memory-makers’, in particular through engagement with the time-based art of site-specific performance. Naik Naik (Ascent) was a multi-site performance project in the historic setting of Melaka, Malaysia, and is partially recaptured through the presence and voices of its collaborating artists. Distilled from moments recalled, this paper seeks to uncover the poetics of memory to emerge from the project; one steeped in metaphor rather than narrative. It elicits some of the complex and interdependent layers of experience revealed by the artists in Naik Naik; cultural, ancestral, historical, personal, instinctual and embodied memories connected to sound, smell, touch, sensation and light, in a spatiotemporal context for which site is the catalyst. The liminal nature of memory at the heart of Naik Naik, provides a shared experience of past and present and future, performatively interwoven.

Contemporising the Past: Envisaging the Future Refereed - Proceedings of the 2014 World Dance Alliance Global Summit

With a strong emphasis on the interconnection between theory and practice, and how past/present intersections inform the future, these thirty-one articles by artist/scholars and artist/teachers profile current dance research from thirteen countries. The papers coalesce around five sub-themes: o approaches to choreography and performance o shifting cultural dance identities o contemporary research perspectives o changing dance pedagogies o site & environmental dance In exploring the cognitive and the sensory, the rational and the instinctive, the explicit and the implicit, these writings create and celebrate common and differentiated dance understandings — at times directly and provocatively, and at times liminally and poetically.

[Two Manuscripts].

Manuscript: "Austrian Anti-Semitism: One Woman's Experience". 1990; English, 14 p.; typed. Essay, based largely on an interview, recounting the experiences of the Viennese Jewish woman Marta Garelick in Austria in the 1930s. Garelick was the first female lawyer in Vienna, and emigrated to Ireland shortly after the Anschluss.