The Law Applicable to Online Copyright Infringements int ALI and CLIP Proposals: A Rebalance of Interest Needed?

The article discusses the problems of applicable law to copyright infringements online. It firstly identifies the main problems related to the well established territoriality principle and the lex loci protectionis rules. Then; the discussion focuses on the "ubiquitous infringement" rule recently proposed by the American Law Institute (ALI) and the European Max Planck Group for Conflicts of Law and Intellectual Propoperty (CLIP). The author strongly welcomes a compromise between the territoriality and universality approaches suggested in respect of ubiquitous infringement cases. At the same time; the paper draws the attention that the interests of "good faith" online service providers (such as legal certainty and foreseeability) have been until now underestimated and invites to take these interests into account when merging the projects into a common international proposal.

The legitimacy of graduated response schemes in copyright law

In an attempt to curb online copyright infringement, copyright owners are increasingly seeking to enlist the assistance of Internet Service Providers (‘ISPs’) to enforce copyright and impose sanctions on their users.1 Commonly termed ‘graduated response’ schemes, these measures generally require that the ISP take some action against users suspected of infringing copyright, ranging from issuing warnings, to collating allegations made against subscribers and reporting to copyright owners, to suspension and eventual termination of service.

Online Copyright Infringement Discussion Paper July 2014

The Paper, by consideration of the issue of authorisation, addresses a very practical development in commerce. Online copyright infringement is now not only about unauthorised uses of cinematograph films but has filtered down to become more prevalent amongst small to medium enterprises (SME), as some competitors embrace online trading by aggressively and often unlawfully, seeking market share. It is understandable that internet service providers (ISPs), as gatekeepers of internet traffic, may be considered as being more than a conduit of contravening conduct but not a joint tortfeasor involved in a common design. In between those extremes lies the concept of authorisation in copyright which has a long history in Australia since the Copyright Act 1905 (Cth). The text of s 101(1A) of the Copyright Act, in particular s 101(1A)(a) and (c), derived from statements of Gibbs J in Moorhouse.

Submission to the Australian Government’s Online Copyright Infringement Discussion Paper

Now is not the time to increase the strength of copyright law. Copyright law is facing a crisis of legitimacy: consumers increasingly appear to doubt its moral weight. To a large extent, this can be traced to the fact that Australian consumers do not believe they are being treated fairly by (predominantly US-based) copyright producers and distributors. Compared to their overseas peers, Australian consumers pay much more for access to books, films, television, and computer games, and are often subjected to long delays before material is available in Australia. Our research shows that this perceived unfairness increases the willingness of Australian consumers to seek out alternative distribution channels. Put simply, the failure of content distributors to meet consumer demand in Australia is a leading factor in copyright infringement. This submission argues that the best strategy to reduce copyright infringement in Australia, at the present time, is for distributors to focus on providing timely, affordable, convenient and fair access to copyright goods. Until this is done, the prevalence of copyright infringement in Australia should be seen as essentially a market problem, rather than a legal one. The Australian Government, meanwhile, should address the recommendations of the IT Pricing Report as a matter a priority. As a first step, the Government should urgently consider repealing the IP exception to competition law in s 51(3), as recommended by the Ergas committee, the IT Pricing report, and the ALRC. This change alone may go a long way to enhancing the efficiency of the copyright market in Australia.

Creative Commons Australia and Organization for Transformative Works submission to the Australian Government’s online copyright infringement discussion paper

This submission focuses on the adverse effects that the Government’s proposals are likely to have on the legitimate use of copyright works. Copyright exists to support the production of new expression. Because new expression always builds on existing culture, any extension of copyright protection necessarily also increases the costs of creative expression. As a threshold matter, we do not believe that these further increases to the force of copyright law are justified. In recent years, the balance at the heart of copyright law has tipped too far in the direction of established producers and distributors, and now imposes unnecessary costs on ordinary creators. The available evidence does not support a further increase in the penalties and enforcement mechanisms available under copyright law.

Shine: Copyright law and film

This article looks at the various experiences of the film-makers involved in Shine in relation to copyright policy and litigation. Part 1 considers the involvement of Jan Sardi in the campaign to get screenwriters included in the moral rights regime in the film industry. Part 2 recounts the efforts of Scott Hicks to push for directors to acquire royalties under the retransmission scheme in the Copyright Amendment (Digital Agenda) Act 2000 (Cth). Part 3 discusses the contractual dispute between independent producer Jane Scott and the distributor over the gross receipts to the film Shine. Part 4 explores the disputes over the use of Sergei Rachmaninov's music in the film Shine.

Copyright law and mash-ups: A policy paper

This report provides an analysis of the cultural, policy and legal implications of ‘mash-ups’. This study provides a short history of mash-ups, explaining how the current ‘remix culture’ builds upon a range of creative antecedents and cultural traditions, which valorised appropriation, quotation, and transformation. It provides modern examples of mash-ups, such as sound recordings, musical works, film and artistic works, focusing on works seen on You Tube and other online applications. In particular, it considers - * Literary mash-ups of canonical texts, including Pride and Prejudice and Zombies, The Wind Done Gone, After the Rain, and 60 Years Later; * Artistic mash-ups, highlighting the Obama Hope poster, the ‘Column’ case, and the competition for extending famous album covers; * Geographical mash-ups, most notably, the Google Australia bushfires map; * Musical mash-ups, such as The Grey Album and the work of Girl Talk; * Cinematic mash-ups, including remixes of There Will Be Blood and The Downfall; and This survey provides an analysis of why mash-up culture is valuable. It highlights the range of aesthetic, political, comic, and commercial impulses behind the creation and the dissemination of mash-ups. This report highlights the tensions between copyright law and mash-ups in particular cultural sectors. Second, this report emphasizes the importance of civil society institutions in promoting and defending mash-ups in both copyright litigation and policy debates. It provides a study of key organisations – including: * The Fair Use Project; * The Organization for Transformative Works; * Public Knowledge; * The Electronic Frontier Foundation; and * The Chilling Effects Clearinghouse This report suggests that much can be learnt from this network of organisations in the United States. There is a dearth of comparable legal clinics, advocacy groups, and creative institutions in Australia. As a result, the public interest values of copyright law have only received weak, incidental support from defendant companies – such as Network Ten and IceTV – with other copyright agendas. Third, this report canvasses a succinct model for legislative reform in respect of copyright law and mash-ups. It highlights: * The extent to which mash-ups are ‘tolerated uses’; * The conflicting judicial precedents on substantiality in Australia and the United States; * The debate over copyright exceptions relating to mash-ups and remixes; * The use of the take-down and notice system under the safe harbours regime by copyright owners in respect of mash-ups; * The impact of technological protection measures on mash-ups and remixes; * The possibility of statutory licensing in respect of mash-ups; * The use of Creative Commons licences; * The impact of moral rights protection upon mash-ups; * The interaction between economic and moral rights under copyright law; and * Questions of copyright law, freedom of expression, and political mash-ups.

Proposals from Berlin and Paris – Intermediary Liability in European Copyright Law

Two very different proposals on copyright policy – one a privately drafted document, the other a governmental report – are published in this edition of JIPITEC. There is an interesting point of intersection between them because they both consider the difficult question of the liability of online intermediaries for users’ infringements. The first document is “The Berlin Gedankenexperiment on the Restructuring of Copyright Law and Authors Rights”. This is a wide-ranging proposal for a complete recasting of the legal system that promotes the production of, and controls the use of, creative goods. The second policy document has a more limited focus. The French High Council for Literary and Artistic Property (“CSPLA”)’s Mission to Link Directives 2000/31 and 2001/29 – Report and Proposals (“Mission Report”) aims to provide a persuasive intervention in current policy discussions at European Union level concerning the liability or, more appropriately, the non-liability, of online intermediaries for copyright infringement. In this brief introduction, I outline the scope of both proposals and reflect briefly on their recommendations.

Report to the Government 2.0 Taskforce : Project 4 - Copyright Law and Intellectual Property

This report is the primary output of Project 4: Copyright and Intellectual Property, the aim of which was to produce a report considering how greater access to and use of government information could be achieved within the scope of the current copyright law. In our submission for Project 4, we undertook to address: •the policy rationales underlying copyright and how they apply in the context of materials owned, held and used by government; • the recommendations of the Copyright Law Review Committee (CLRC) in its 2005 report on Crown copyright; • the legislative and regulatory barriers to information sharing in key domains, including where legal impediments such as copyright have been relied upon (whether rightly or wrongly) to justify a refusal to provide access to government data; • copyright licensing models appropriate to government materials and examples of licensing initiatives in Australia and other relevant jurisdictions; and • issues specific to the galleries, libraries, archives and museums (“GLAM”) sector, including management of copyright in legacy materials and “orphan” works. In addressing these areas, we analysed the submissions received in response to the Government 2.0 Taskforce Issues Paper, consulted with members of the Task Force as well as several key stakeholders and considered the comments posted on the Task Force’s blog. This Project Report sets out our findings on the above issues. It puts forward recommendations for consideration by the Government 2.0 Task Force on steps that can be taken to ensure that copyright and intellectual property promote access to and use of government information.

Where the bloody hell does parody fit in Australian copyright law?

This article examines the role of the recently introduced fair dealing exception for the purposes of parody and satire in Australian copyright law. Parody and satire, while central to Australian expression, pose a substantial challenge for copyright policy. The law is asked to strike a delicate balance between an author’s right to exploit their work, the interests of the public in stimulating free speech and critical discussion, the rights of artists who rely on existing material in creating their own expression, and the rights of all artists in their reputation and the integrity of their works. This article highlights the difficulty parodists and satirists have historically faced in Australia and examines the potential of the new fair dealing exceptions to relieve this difficulty. This article concludes that the new exceptions have the potential, if read broadly, not only to bridge the gap between humorous and non-humorous criticism, but also to allow for the use of copyright material to critique figures other than the copyright owner or author, extending to society generally. This article will argue that the new exceptions should be read broadly to further this important policy goal while also being limited in their application so as to prevent mere substitutable uses of copyright material. To achieve these twin goals, I suggest that the primary indication of fairness of an unlicensed parody should be whether or not it adds significant new expression so as not to be substitutable for the original work.

Copyright law in the United Arab Emirates in the digital age

This article gives an overview of copyright law in the United Arab Emirates (UAE) and critically evaluates its operation in the digital era, providing suggestions for reform.

Towards a relational theory of copyright law

This research provides a systematic and theoretical analysis of the digital challenges to the established exclusive regime of the economic rights enjoyed by authors (and related rightholders) under the law of copyright. Accordingly, this research has developed a relational theory of authorship and a relational approach to copyright, contending that the regulatory emphasis of copyright law should focus on the facilitation of the dynamic relations between the culture, the creators, the future creators, the users and the public, rather than the allocation of resources in a static world. In this networked digital world, the creative works and contents have become increasingly vital for people to engage in creativity and cultural innovation, and for the evolution of the economy. Hence, it is argued that today copyright owners, as content holders, have certain obligations to make their works accessible and available to the public under fair conditions. This research sets forward a number of recommendations for the reform of the current copyright system.

iiNet’s Hollywood ending : what does its court victory mean for copyright law?

In what is being billed as iiNet versus Hollywood, the Australian internet service provider has come out an apparent winner after the High Court dismissed a copyright infringement case brought by industry movie studios. The case was a final appeal by the industry in its attempts to crack down on internet users infringing copyright by using BitTorrent to download movies.

A pragmatic approach to intellectual property and development : a case study of the Jordanian copyright law in the internet age

On October 4, 2004, Brazil and Argentina requested that WIPO adopt a development-oriented approach to IP and to reconsider its work in relation to developing countries. In October, 2007, WIPO member States adopted a historic decision for the benefit of developing countries, to establish a WIPO Development Agenda. Although there have been several studies related to IP and development that call for IP laws in developing countries to be development-friendly, there is little research that attempts to provide developing countries with practical measures to achieve that goal. This article takes the copyright law in Jordan as a case study and shows how, in practical terms, a pro-development-oriented approach could be implemented in the copyright laws of developing countries. It provides specific recommendations for developing countries to ensure that their IP laws are aligned with and serve their social and economic development objectives.