Web 2.0: The Third Wave
The end of copyright as we know it?
Abstract
As traditional copyright protection is swamped by inexorable waves of WEB 2.0 digital disruption, the Australian Law Reform Commission has recommended the adoption of ‘fair use’ to assess copyright infringement. Further supported in a recent inquiry by the Productivity Commission, this legal-economic drive for a shift to fair use presents a seeming inevitability around change to copyright exceptions. With such in mind, does a licensing model in the vein of Creative Commons, operating alongside flexible fair use or extended fair dealing, create a ‘fair’ balance between creator ownership rights and the greater common good, and are there alternatives?
Introduction
Throughout history the public has been actively involved in creating and recreating culture…referred to by the US academic Lawrence Lessig as the “read/write” culture.
Guilda Rostama
The advent of Web 2.0, and accelerating digital disruption since, has led to derivative works being par for the course.
Where once format and limited transmission or repurposing pathways helped protect copyright, new publishing and distribution platforms have on the one hand created myriad opportunities for those who seek content, and, on the other, financial and professional uncertainty for those who create it.
These same creators, however, are also positioned to avail themselves of wider digital distribution networks and enhancement of reputation that might come with greater exposure.
Against this ever-evolving backdrop, in 2012 the Australian Law Reform Commission (ALRC) “was asked to consider whether exceptions and statutory licences in the Copyright Act 1968 are adequate and appropriate in the digital environment and whether further exceptions should be recommended.”[1]
The critical recommendation of the 2014 final report?
“The introduction of a flexible fair use exemption as a defence to copyright infringement”[2], replacing the existing fair dealing.
Following a subsequent 2015 inquiry by the Productivity Commission (PC) into intellectual property (IP) arrangements, the potential benefits and costs of fair use have been fired as salvos on a copyright battlefield, and the way forward remains unclear.
In considering copyright and fair use as they stand in Australia, the ALRC and PC proposals for change, and responses from the ‘copyright community’, this paper suggests a way forward that embraces WEB 2.0 while considering the greater public good up against protecting creative ownership rights.
Copyright: What’s mine is mine, and what’s mine is yours…for a price
Literature has been in a plundered, fragmentary state for a long time
Jonathan Lethem
Creative work is intrinsically derivative by nature.
The great visual masters studied their predecessors’ works.
Acclaimed authors are influenced by the readings of their youth.
Even this paper by its very dialectical nature is unashamedly derivative.
Notwithstanding such, the Statute of Anne (Copyright Act 1709) was enacted by the Parliament of Great Britain to provide statutory protection over “our right to the exclusive use of the array of creative outputs we might produce as human beings.”[3] From this sprung the rationale behind copyright: “to further the development of literary and artistic works by conferring on the author an exclusive property interest in the creations of his or her brain…as will provide its owner a fair dividend”[4].
In 1883, copyright was codified under the Paris Convention, with the Berne Convention ratified three years later[5] as “a Union for the protection of the rights of authors in their library and artistic works”[6], outlining coverage[7], limitations[8], moral rights[9], rights of reproduction[10] and ‘free uses’ of works[11].
In Australian, the Copyright Act 1968 (Cth) created a national legal framework ensuring both economic[12] and moral rights[13] of creators were protected. S40 of the Act applies the European tradition of ‘fair dealing’[14], permitting reproduction “of material taken from a copyrighted work to a limited extent that will not cut into the copyright owner’s potential market for the sale of copies.”[15] Exceptions include: research or study; criticism or review, providing professional advice; parody or satire; and reporting the news.
(The Australian government supports “the enrichment of Australian culture by encouraging the growth and development of Australian writing[16]”, further protecting economic rights via the ELR and PLR schemes whereby eligible creatives receive payments for work distributed for educational and public lending purposes[17].)
The UK and Canada[18] also apply fair dealing exceptions (although reviews such as the UK’s Hargreaves Review of IP have reconsidered this), and “under French and German copyright law, the right of integrity is tempered by practical economic concerns…only unauthorized and unreasonable changes to the substance of the work will incur liability.”[19]
The USA takes a much broader view. With a common law doctrine in place for nearly three centuries[20] and incorporated into the US Copyright Act in 1976, ‘fair use’ is “…rooted in the truth that we sometimes must use the expression of another to express ourselves effectively”[21].
Acting “as a safety valve, to ensure that…a court can find that a defendant’s use of the copyrighted material is such that, as a matter of policy, society gains most by a finding of non-infringement”[22], under section 107 fair use applies to criticism, comment, news reporting, teaching, and scholarship or research, with four considerations in its determination:
1. The purpose and character of the use;
2. The nature of the copyrighted work;
3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. The effect of the use upon the potential market for, or value of, the copyrighted work.
It follows that fair use “allows some breathing room for the re-user by limiting the conditions under which they can be prosecuted for infringement”[23], aiding in mitigating transaction costs and allowing flexibility around innovation[24].
So long Gutenberg and thanks for all the books…
Tamura[25] identifies three waves of ‘threat’ to copyright holders’ legitimate interests, during which creative ownership rights developed:
1. First Wave: Commences with Gutenberg’s 1440 printing press, establishing the origins of the potential for copyright as wider distribution of written materials became possible without the painstaking need to copy by hand.
2. Second Wave: The twentieth century’s dramatic shift as “…various analogue reproduction technologies…photocopying machines, tape recorders and VCRs…entered the private sphere of the consumers of copyrighted works… (such that copyright) …started to extensively regulate and interfere with activities of private individuals.[26]”
3.Third Wave: The most disruptive transformation to date: “…the invention and dissemination of digital technologies allow private individuals to make perfect copies of digitised copyrighted works (and) …the internet enables millions of individuals to distribute such.[27]”.
More recently, we have entered ‘#Wave3.1’ where “innovation and freedom of expression increasingly require the use, reinterpretation, and remixing of copyrighted content.[28]”
Proliferation of new techniques of cultural production has raised questions around the direction copyright protection would move in — towards the ‘copy-right’ (protection of creator rights) or the ‘copy-left’[29] (freeing up ownership rights for the greater good) — creating a situation where “Copyright owners have had to decide…whether to embrace creative consumer uses of their intellectual property, or resist them and fight an uphill battle.”[30]
Copyright & the Digital Economy: The ALRC calls for a ‘fair (use) go’ for all
Digital has collapsed the distinction between media producers and consumers. Digitalisation — the movement of information by means of binary digits or bits — has meant that all forms of media can be easily manipulated, thereby undermining the ways in which copyright works both to promote creativity and control copying.
Richard Haynes
The possibility of this ‘battle’ has prompted numerous examinations around changes to Australian IP and copyright. More recently in June 2012, the Australian government commissioned the ALRC to “consider whether the current exceptions and statutory licences in the Copyright Act are adequate and appropriate in the digital era[31]”.
After consulting with and taking submissions from stakeholders[32], the ALRC produced “Copyright and the Digital Economy”[33], the findings of which centred on a series of ‘framing principles[34]’ that attempted to strike the balance between creator’s ownership rights and access to content. Core to the recommendations was the replacement of fair dealing as a defence to copyright with fair use[35] on the grounds it:
- Is flexible and technology-neutral;
- Promotes public interest and transformative uses;
- Assists innovation;
- Better aligns with reasonable consumer expectations;
- Helps protect rights holders’ markets;
- Is sufficiently certain and predictable; and
- Is compatible with moral rights and international law[36].
Key to this shift to fair use were four nonexhaustive fairness factors:
1. The purpose and character of use;
2. The nature of the copyright material;
3. The amount and substantiality of the part used; and
4. The effect of the use upon the potential market or value.
In its summary the ALRC added that implementing fair use “…builds on Australia’s fair dealing exceptions…has been applied in US courts for decades…is built on common law copyright principles that date back to the eighteenth century”[37], and that if it “…is uncertain, this does not seem to have greatly inhibited the creation of films, music, books and other material in the world’s largest exporter of cultural goods, the United States.”[38]
Failing this proposal’s acceptance, the ALRC recommended an alternative: a new fair dealing exception[39] it believed “consolidates the existing fair dealing exceptions and provides that fair dealings for certain new purposes do not infringe copyright”[40], naming these as: quotation; non-commercial private use; incidental/technical use; library/archive use; education; and access for those with a disability.
On the 14 February 2014, Attorney General George Brandis tabled the ALRC’s report to the Senate, stating, “It is the Government’s strong view that the fundamental principles of intellectual property law…have not changed, merely because of the emergence of new media and platforms…In this changing digital world, we must look for the opportunities, but…the Government has no intention of lessening rights of content creators to protect and benefit from their intellectual property.”[41]
In a speech the following day to the Australian Digital Alliance (ADA), he added, “…the key recommendation of the Report is that Australia adopt… “fair use” …I remain to be persuaded that this is the best direction for Australian law, but nevertheless I will bring an open and inquiring mind to the debate.”[42]
Some responses from the copyright community to the ALRC report
The Productivity Commission follow-up report: “Can’t fight the fair use[43]”
In October 2015, with the ALRC’s recommendations unacted upon, Treasurer Joe Hockey tasked the Productivity Commission (PC) to undertake an inquiry to “consider whether current arrangements provide an appropriate balance between access to ideas and products, and encouraging innovation, investment and the production of creative works.”[44]
Among the PC’s draft recommendations, the introduction of fair use was tabled on the grounds that the current fair dealing arrangements “are too narrow and prescriptive, do not reflect the way people actually consume and use content in the digital world, and are insufficiently flexible to account for new legitimate uses of copyright material.”[45]
Some responses from the copyright community to the PC draft report
To ‘fair use’ or to ‘not fair use’, that is the question…
As…Lessig…said… ‘fair use is the right to hire a lawyer.’…
while fair use might seem to be growing stronger on paper (and in court), it is increasingly less fair and less useful in real life
Siva Vaidhyanathan
As evidenced in responses to both the ALRC and PC’s recommendations, a range of likely costs and benefits have been identified around the adoption of fair use.
The recurring theme from those against fair use is primarily around it discouraging content creation by “reducing already diminishing financial returns and damaging Australia’s thriving cultural industries”[46] while creating a field day for litigators (this latter aspect backed by US counterparts such as Siva Vaidhyanathan who are unhappy with their existing fair use regime[47].) Carroll supports such, urging US lawmakers to “clarify fair use by rendering it more rule-like, as has been done through the fair dealing privilege found in English, Canadian, and Australian law.”[48]
Those for fair use only see the positives, believing it will encourage innovation while allowing content creation to move with the technological times. As a counter to the ‘diminishing financial returns’ argument, proponents point to the ‘Google Books’ decision which found for the defendant because it “…might enhance market by providing authors with an opportunity to have older books…searchable (and)…channel money to publishers and authors by providing links to online retailers”[49].
In his piece for the Conversation[50], Nic Suzor references the landmark ruling[51] when talking up ‘the greater good’ argument around fair use as it allows end users “…to reuse copyright material in ways that are valuable to society and not too harmful to the copyright owner[52]”. Sag agrees: “Both judges and academics have characterized the fair use doctrine as a redistributive tool favoring the politically and economically disadvantaged”[53], creating “breathing space for cultural engagement in the form of reinterpretation and remixing of copyrighted content…platforms…for sharing individual self-expression.”[54]
Protecting work too heavily also disincentives further content creation because “…by increasing protection for initial works…we will…increase the cost of producing works…based on these earlier works…(and) may actually decrease the total number of works.”[55]
To counter the grave fears around loss of property rights, Phan offers that “Recognizing that the Internet is a postmodern medium does not mean relinquishing the foundations of traditional rights…Thinner property rights do not mean the divestiture of all ownership”[56], backed up in Warner Bros and J.K. Rowling v. RDR Books (2008)[57].
Creative Commons: A force for copyright good or evil?
The world of art and culture is a vast commons, one that is salted through with zones of utter commerce yet remains gloriously immune to any overall commodification
Jonathan Lethem
Opinion remains divided around fair use v fair dealing, but moving forward there may be a solution offering middle ground between copyright holders and end users.
Attempting to strike a balance between expanding the pool of legally-transformable content while not overly disempowering original creators, Lawrence Lessig formalised Creative Commons (CC) in 2001, adapting the ideology of copyleft to produce a creative licensing movement that “rejects the idea of…copyright royalties…but recognizes the moral rights of attribution and integrity”[58].
CC sets up a simple content licensing system as per the following diagram:
New works produced as CC licensed content must also be made available under the same licence, and the licensee cannot alter the licence terms, use the work in ways prejudicial to the creator’s reputation, imply the creator endorses the work, or add restrictive technologies to the transformed work. It follows that CC is not about ceding ownership but rather allows the creator to share the work with the public under certain conditions. “A work licensed under the Creative Commons regime does not belong to the public domain…The user has no rights to use the work other than those granted by the license and those from which she benefits according to local law.”[59]
CC: No ‘gift’ to creatives
It is cultural oppression, and it perpetuates stereotypes-the impoverished artist at work in his attic studio, caring little for the pleasures of the world
Mira T. Sundara Rajan
CC is not without its critics. The ADA held in its submission to the PC inquiry that while CC might be useful, “Licensing mechanisms provide only part of the solution, as they are not always efficient, cost effective or even available. Furthermore, uncertainty in the current law as to their relationship with copyright exceptions means that they are frequently used to exclude valuable public benefit uses.”[60] (The Media Arts & Entertainment Alliance similarly opposes CC[61].) Concerns also arise over the fact that once issued, licenses cannot be revoked, and that in a remix culture where the original work is updated substantially, the new remixer might argue they own copyright.
However, the over-arching apprehension around CC is its financial effect on creators. Not only do they receive no compensation for the re-use of their work, neither can they ask for any if another profits from its derivation.
The fear behind this?
That CC “…will promote a “gift culture,” further devaluing creative works both in society at large and in the minds of creators themselves”[62], the wider ramifications of which beg the question, “…the movement leaves unanswered the fundamental question of how society intends to support the creation of culture. If the marketplace will not support artists, who (or what) will?”[63]
CC: Do the ‘ayes’ have it?
A free culture has been our past, but it will only be our future if we change the path we are on right now
Lawrence Lessig
The pro-CC camp (including peak bodies such as the Australian Copyright Council[64]) identify numerous benefits around CC licensing, including that content:
— Is opened up to a wider audience;
— Can only be used as licensed;
— Requires attribution;
— Can be developed further in other hands;
— Is still protected under its original copyright;
— Has international application and;
— Is ‘remix ready’.
Countering fears that CC diminishes income generation for licensors, XX offers that “the lack of money changing hands…should not be presumed to mean that there is no economic consideration”[65], an example of which might be CC acting as a cost-effective marketing tool to promote the author and their work.
Research by the Copyright Hub Foundation London supports CC as an anti-piracy tool. “…we did some research on people wishing to reuse copyright works. 38% …could not find the rights owner in any sensible time span. So…did not reuse the work… Or they pirated it — negative outcome for the creator and the creative economy.”[66]
The changing nature of the workplace, rise of the freelancer and devolution of traditional copyright gatekeepers (intermediaries such as publishers) due to digital distribution opportunities also positions CC as a natural evolution for creators to license and distribute their work. CC empowers creators to consider the wider public when deciding how their work is shared — what they’re happy to offer free public access to up against work for which they want remuneration, thus providing wider societal benefits in promoting community building and a culture of sharing.
There even exists a small but growing body of case law that supports CC. “In Curry v Audax, the District Court of Amsterdam affirmed that a Creative Commons Attribution Non-commercial Share Alike licence attached to a Dutch celebrity’s photographs on Flickr.com prevented any commercial reproduction of those photographs without the author’s permission.[67]
Alternatives to CC
Copyright renewal
Given “compelling evidence that more intensive commercial exploitation takes place at the beginning and the end of the exclusive term”[68], shortening the term of copyright in favour of the concept of ‘ownership renewal’ puts control and financial risk assessment in the hands of the creator.
If the cost of renewal is greater than the financial benefit, the work can pass into the public domain and still retain an ‘altruistic’ worth.
Establish best practices
In her TEDx talk Making Copyright Your Friend: Journalism and Fair Use[69], Pat Aufderheide advocates the formalisation of best practices around fair use:
In relation to fair dealing, D’Agostino supports this, offering, “… best practices are the most promising alternative or complement to legislative reform. The parties directly affected in a specific industry can together develop these guidelines, which can…aid in fair dealing decision making in the courts.”[70]
A Fair Dealing Board
A statutory body regulating fair dealing offers a low-cost, non-judicial copyright dispute resolution alternative, allowing for a larger body of empirical evidence to be built around disputes that might provide useful data on future changes to copyright, leading to discussion on scenarios where work should be continued to be protected against where copyright might be loosened.
An OZ Copyright Hub
In its submission to the PC inquiry, the Copyright Hub Foundation (UK) proposed a similar model for Australia to that created out of the Hargreaves Review of Intellectual Property and Growth[71]. This was further supported by the ACA[72] and, given its current brief, might be facilitated via the Copyright Agency[73].
Conclusion
If this system were to change it would result in a significant diminution of author’s income…a reduction in investment in Australian content and a sharp increase in litigation at the cost of the author’ Australian society of authors
Australian Society of Authors
Reactions from much of the Australian creative community to the ALRC and PC recommendations have been uniformly critical, yet are countered by those who see the digital age as an opportunity for an era of openness and freedom around creative work. With such disparate views, more negotiation and discussion towards an amicable and equitable resolution is required.
There is no denying that some regulation around creative ownership is required to provide a safe, financially-viable space for creators to generate work, and income, yet loosening exceptions to copyright will encourage and expand the flow of ideas, providing greater benefit to society. To stand in the way of such is antithetical to a creative culture deeply rooted in the concept of the advancement of ideas and enlightenment of society, and counter-productive during a digital disruption challenging creative ownership and, more broadly, our lives more generally.
However, rather than fight what seems an inevitable river of digital change, copyright holders might need to dive in and swim with the seemingly inevitable digital tide, a Creative Commons life jacket strapped firmly on and with a governmental or statutory lifeguard monitoring from the banks.
To quote/borrow/re-use/remix/transform from an Aussie classic, moving forward copyright holders might need to embrace the idea that “We can’t stop progress”[74].
Most artists are brought to their vocation when their own nascent gifts are awakened by the work of a master…Invention, it must be humbly admitted, does not consist in creating out of void but out of chaos.
John Lethem
Footnotes
[1] “Copyright and the digital economy,” Australian Law Reform Commission, Accessed 8 May 2016. http://www.alrc.gov.au/inquiries/copyright-and-digital-economy
[2] “Statement to the Senate Tabling of ALRC Report on Copyright and the Digital Economy,” Attorney-General for Australia, Accessed 8 May 2016. https://www.attorneygeneral.gov.au/Speeches/Pages/2014/First%20Quarter%202014/13February2014-TablingofALRCReportonCopyrightandtheDigitalEconomy.aspx
[3] Mark Pearson and Mark Polden, The Journalist’s Guide to Media Law: A handbook for communicators in the digital world (Melbourne: Allen & Unwin, 2015), 374.
[4] Puri, K. K. “Fair Dealing with Copyright Material in Australia and New Zealand.” Victoria University of Wellington Law Review 13.3 (1983): 288, EBSCOhost.
[5] Pearson and Polden, The Journalist’s Guide, 374.
[6] “Berne Convention for the Protection of Literary and Artistic Works” (Article 1), World Intellectual Property Organization, Accessed 11 May 2016, http://www.wipo.int/treaties/en/text.jsp?file_id=283698
[7] Berne Article 2(1).
[8] Berne Article 2bis.
[9] Berne Article 6bis.
[10] Berne Article 9.
[11] Berne Article 10(1); Article 10bis.
[12] ‘Economic rights’ centre around copyright owners retaining control of their work, obtaining appropriate remuneration and being able to seek legal recourse when this right is infringed.
[13] ‘Moral rights’ centre around integrity of authorship, right of attribution and the right against false attribution
[14] See: Copyright Act 1968, s40.
[15] Puri, “Fair Dealing”, 288.
[16] “Lending Rights Programs”, Department of Communications and the Arts, http://arts.gov.au/literature/lending_rights
[17] PLR rates for 2012–13 were $1.96 per copy of each eligible book for creators and 49 cents per copy of each eligible book for publishers. The ELR rates of payment were tiered.
[18] Canada enacted changes to fair dealing in 2011 with Bill C-11 or the Copyright Modernization Act, which has not been without controversy over its effect on ownership and other copyright-related issues.
[19] Michael Gunlicks, “A balance of interests: the concordance of copyright law and moral rights in the worldwide economy.” Fordham Intellectual Property, Media & Entertainment Law Journal 11, no.3, (2001): 638, EBSCOhost.
[20] Gyles Wilcox, Nutt and Barrow; 6 Mar 1740.
[21] Michael Carroll, “Fixing Fair Use”, North Carolina Law Review 85(4) (2006–2007): 1092, EBSCOhost.
[22] Sean O’Donnell, “Fair Use in the UK, Fair Use in the USA; No Future, No Future”, Hibernian Law Journal 7 (2007): 57–58, HeinOnline.
[23] Tarleton Gillespie, Wired Shut: Copyright and the Shape of Digital Culture (MIT PRESS, 2007), 29.
[24] Gillespie, Wired Shut, 30.
[25] Yoshiyuki Tamura, “Rethinking Copyright Institution for the Digital Age”, The WIPO Journal: Analysis and Debate of Intellectual Property Issues, Issue No:1 (2009): 63–74.
[26] Tamura, “Rethinking Copyright”, 67.
[27] Tamura, “Rethinking Copyright”, 68.
[28] Matthew Sag, “Prehistory of Fair Use”, The Brooklyn Law Review, 76(4), (2010–2011): 49, EBSCOhost.
[29] See: https://copyleft.org/ for full definition of Copyleft.
[30] Zahr K Said, “Fair Use in the Digital Age, and Campbell v. Acuff-Rose at 21”, Washington Law Review 90(2), (2015): 585, EBSCOhost.
[31] ALRC, “Copyright and”.
[32] ALRC, “Copyright and”, 8. Stakeholders included: • academics; • creators and organisations (authors, directors, photographers and others); • the education sector; • the GLAM sector; • government authorities (Australian Competition and Consumer Commission; the Australian Communications and Media Authority; IP Australia and many others); • media and broadcasting and related organisations and industry bodies; • music organisations; • online service providers; • publishers and publisher organisations; and • rights management organisations.
[33]ALRC, “Copyright and”, Summary Report.
[34]ALRC, “Copyright and”, 12: Framing principals: acknowledging and respecting authorship and creation; maintaining incentives for creation and dissemination; promoting fair access to content; providing rules that are flexible, clear and adaptive; and providing rules consistent with international obligations.
[35] ALRC, “Copyright and”, 12.
[36] ALRC, “Copyright and”, 12–13.
[37] ALRC, “Copyright and”, 13.
[38] ALRC, “Copyright and”, 13.
[39] ALRC, “Copyright and”, 16.
[40] ALRC, “Copyright and”, 16.
[41] Attorney-General for Australia, “Statement to.”
[42] “Address at the Opening of the Australian Digital Alliance Fair Use for the Future — A Practical Look at Copyright Reform Forum”, Attorney-General for Australia, accessed 13 May 2016. https://www.attorneygeneral.gov.au/Speeches/Pages/2014/First%20Quarter%202014/14February2014-openingoftheAustralianDigitalAllianceForum.aspx
[43] This sub-section title would like to acknowledge the transformative use of LeAnn Rimes’ song, “Can’t fight the Moonlight”.
[44] “Intellectual Property Arrangements”, Australian Productivity Commission, accessed 15 May 2016. http://www.pc.gov.au/inquiries/current/intellectual-property#draft
[45] Australian Productivity Commission, “Intellectual Property” (Fact Sheets).
[46] Copyright industries comprise a substantial proportion of the Australian economy. In the most recent year for which data is available (2006/07), Australia’s copyright industries:
· employed 837,507 people, which constituted 8.0% of the Australian workforce
· generated economic value equal to 10.3% of gross domestic product ($97.7 billion)
· generated $6.873 billion in exports, equal to 4.1% of total exports
(National Studies on Assessing the Economic Contribution of the Copyright-Based Industries Prepared by PWC for: Submission in Response to Productivity Commission Issues Paper on Intellectual Property Arrangements, Copyright Council, 30 November 2015, 6).
[47] Siva Vaidhyanathan, ‘The Googlization of Everything and the Future of Copyright’ (2007) 40 The University of California Davis Law Review 40.3 (2006–2007): 1207.
[48] Carroll, “Fixing Fair,” 1090.
[49] Carroll, “Fixing Fair,” 1090.
[50] Nic Suzor, “Google Books wins ‘fair use’ but Australian copyright lags”, The Conversation, 15 November 2013, https://theconversation.com/google-books-wins-fair-use-but-australian-copyright-lags-20351
[51] The Authors Guild Inc., et al. v. Google, Inc, 2015
[52] Suzor, “Google Books wins ‘fair use’ but Australian copyright lags”,
[53] Matthew Sag, “Predicting Fair Use”, Ohio State Law Journal 73(1), (2012): 64, HeinOnline Law Journal.
[54] Sag, “Predicting,” 85.
[55] Pedro Letai, “Don’t think twice, it’s all right: toward a new copyright protection system”, European Intellectual Property Review 37(12), (2015): 768–9 Westlaw UK Journals and Law Reviews.
[56] Dan Thu Thi Phan, “Will Fair Use Function on the Internet”, Columbia Law Review 98(1), (1998), 214, EBSCOhost.
[57] In Warner Bros and J.K. Rowling v. RDR Books the courts came down in favour of copyright, even with fair use on the table as the standard. When RDR books produced The Harry Potter Lexicon (a website reproduced as a book), Warner and JK Rowling took RDR to court for breach of copyright. The chief argument of the defence was that a ruling in favour of Warner would have an impact on the production of reference books produced around fiction, but Patterson J held, ‘In striking the balance between the property rights of original authors and the freedom of expression of secondary authors, reference guides to works of literature should generally be encouraged by copyright law as they provide a benefit [to] readers and students; but to borrow from Rowling’s overstated views, they should not be permitted to ‘plunder’ the works of original authors, ‘without paying the customary price’ lest original authors lose incentive to create new works that will also benefit the public interest.’
[58] Mira T. Sundara Rajan, “Creative Commons: America’s Moral Rights”, Fordham Intellectual Property, Media Entertainment Law Journal 21(4), (2010–2011): 920. EBSCOhost
[59] Severine Dusollier, “The Master’s Tools v. The Master’s House: Creative Commons v. Copyright”, Columbia Journal of Law & Arts, vol. 29, (2006): 273. HeinOnline.
[60] See Executive Summary, ADA response to PC, Australian Productivity Commission, “Intellectual Property”
[61] The Media Entertainment and Arts Alliance (MEAA) ‘refused to allow local actors to perform in the remix film ‘Sanctuary’, because the film was to be licensed under a Creative Commons BY-NC-SA Licence.’ While admitting it might be less concerned if a stronger moral rights framework was in place, MEAA argued more generally that CC licences are financially impracticable, and by removing certainty around financial returns, potentially discourage investors. (for more see: Seamus Byrne, “Actors’ union shouts ‘cut’ on digital film”, SMH, 12 April, 2005, http://www.smh.com.au/news/Outsourcing/Actors-union-shouts-cut-on-digital-film/2005/04/11/1113071894581.html).
[62] Adrienne K. Goss, “Codifying Commons: Copyright, Copyleft, and the Creative Commons Project”. Chicago-Kent Law Review 82(2), (2007): 995. LexisNexisAcademic.
[63] Rajan, Mira T. Sundara. “Creative Commons: America’s Moral Rights.” Fordham Intellectual Property, Media & Entertainment Law Journal 21.4 (2010–2011): 931–2, HeinOnline.
[64] In its response to the PC inquiry, the ACC offered, “While there will always be a need for detailed negotiations for high value transactions, better licensing solutions will facilitate low value, high volume transactions. Many such models already exist, for example Creative Commons, precleared content from stock libraries such as Getty Images and of course the blanket licences available from copyright collecting societies”. See: Australian Productivity Commission, “Intellectual Property”.
[65] See Jacobsen v. Katzer, 535 F.3d 1379 (Fed. Cir. 2008).
[66] Copyright Hub Foundation London Submission to the Productivity Commission’s Intellectual Property Arrangements Inquiry. See: Australian Productivity Commission, “Intellectual Property”.
[67]Susan Corbett, “Creative Commons Licenses, the Copyright Regime and the Online Community: Is There Fatal Disconnect”, The Modern Law Review 74(4), (2011): 514. HeinOnline.
[68] Letai, “Don’t think twice”, 769.
[69] Ted X lecture, https://www.youtube.com/watch?v=vVkLnyaACh0
[70] Giuseppina D’Agostino, “Healing Fair Dealing A Comparative Copyright Analysis of Canada’s Fair Dealing to U.K. Fair Dealing and U.S. Fair Use”, McGill Law Journal 53(2), (2008): 358. LexisNexisAcademic.
[71] Submission to the Productivity Commission’s Intellectual Property Arrangements Inquiry, The Copyright Hub Foundation. See: Australian Productivity Commission, “Intellectual Property”.
[72] “We believe that there is merit in examining a Copyright Hub type interface in Australia and would welcome the opportunity to discuss the options with the Commission”. ADA response to the Productivity Commission’s Intellectual Property Arrangements Inquiry. See: Australian Productivity Commission, “Intellectual Property”.
[73] Copyright Agency Brief: “We are a not-for-profit, member based organisation that has been appointed by the Australian government to manage collection and distribution of statutory licences that allow use of text and images for education, government purposes, and people with a disability; royalties to artists from resales of their works (the resale royalty scheme). We are also authorised by our members to license their works for other uses, such as by corporations” See: http://copyright.com.au/wp-content/uploads/2015/05/National-Cultural-Policy-2011-10-21.pdf
[74] Original quote “Ya can’t stop progress”, Debra Choate, The Castle, directed by Rob Sitch (1997); Sydney, Australia: Working Dog.
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