Copyright, Intellectual Property and other Legal and Ethical matters Writing & Editing for Digital Media, Week 10

Intellectual Property The idea that ideas can be owned World Intellectual Property Organization IP Australia Australian Copyright Council What ’ s covered? Copyright Patents Trademarks Design Other stuff: circuit layouts, plants, trade secrets

The idea that ideas can be owned

World Intellectual Property Organization

IP Australia

Australian Copyright Council

What ’ s covered?

Copyright

Patents

Trademarks

Design

Other stuff: circuit layouts, plants, trade secrets

All rights reserved? Economic rights: The right to reproduce The right to deny reproduction The right to economic benefit — sales, royalties The right to loan — libraries ’ lending rights Moral rights: The right of attribution — to have the work recognised as their work The right of integrity — to prevent distortion, destruction or misrepresentation

Economic rights:

The right to reproduce

The right to deny reproduction

The right to economic benefit — sales, royalties

The right to loan — libraries ’ lending rights

Moral rights:

The right of attribution — to have the work recognised as their work

The right of integrity — to prevent distortion, destruction or misrepresentation

Copyright timeline 1886: Berne Convention 1952: Universal Copyright Convention adopted at Geneva 1968: Australian simplified Copyright Act 1989: US finally becomes part of Berne Convention 1993: European Union directive harmonising copyright between UCC and Berne 1998: US “ Sonny Bono ” copyright extension 2004: Australian-US Fair Trade Agreement 2006: Copyright Amendment Act 2007: Australian moral rights amendment - part IV, Copyright Act

1886: Berne Convention

1952: Universal Copyright Convention adopted at Geneva

1968: Australian simplified Copyright Act

1989: US finally becomes part of Berne Convention

1993: European Union directive harmonising copyright between UCC and Berne

1998: US “ Sonny Bono ” copyright extension

2004: Australian-US Fair Trade Agreement

2006: Copyright Amendment Act

2007: Australian moral rights amendment - part IV, Copyright Act

The current situation Copyright protection is provided for under the Copyright Act 1968; a copyright notice is not required As a result of Australia signing the FTA with the US in 2004, we have extended copyright from 50 to 70 years from author ’ s death (with some exceptions) The Copyright Amendment Act 2006 brought in fair dealing provisions for digital backups for home use Up to date fair dealing information

Copyright protection is provided for under the Copyright Act 1968; a copyright notice is not required

As a result of Australia signing the FTA with the US in 2004, we have extended copyright from 50 to 70 years from author ’ s death (with some exceptions)

The Copyright Amendment Act 2006 brought in fair dealing provisions for digital backups for home use

Up to date fair dealing information

Changes due to Australia-US Free Trade Agreement 2004 New rights, both economic and moral for performers in sound recordings; Extension of the term of protection for most copyright material by 20 years; Implementation of a scheme for limitation of remedies available against Carriage Service Providers for copyright infringement; (note: iiNet is being sued at the moment) Wider criminal provisions for copyright infringement; Broader protection for electronic rights management; Protection against a wider range of unauthorised reproductions Source: IP Australia

New rights, both economic and moral for performers in sound recordings;

Extension of the term of protection for most copyright material by 20 years;

Implementation of a scheme for limitation of remedies available against Carriage Service Providers for copyright infringement; (note: iiNet is being sued at the moment)

Wider criminal provisions for copyright infringement;

Broader protection for electronic rights management;

Protection against a wider range of unauthorised reproductions

Source: IP Australia

Currently before the courts: iiNet A consortium of film distribution companies is currently suing ISP iiNet before the Federal Court The outcome could set a precendent about whether ISPs can be held responsible for their users' pirated content. Record company investigators tracked 97,942 instances of iiNet customers sharing files illegally over 59 weeks. iiNet is expected to use privacy of users as a defence. Source: ABC Online http://www.abc.net.au/news/stories/2009/10/06/2706449.htm a

A consortium of film distribution companies is currently suing ISP iiNet before the Federal Court

The outcome could set a precendent about whether ISPs can be held responsible for their users' pirated content.

Record company investigators tracked 97,942 instances of iiNet customers sharing files illegally over 59 weeks.

iiNet is expected to use privacy of users as a defence.

Source: ABC Online http://www.abc.net.au/news/stories/2009/10/06/2706449.htm

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Currently before the courts: Fairfax v Reed Elsevier Fairfax is attempting to claim copyright over the headlines and bylines from The Australian Financial Review Reed Elsevier's ABIX service reproduces many AFR headlines and bylines verbatim as part of its news aggregation service for its subscribers. Fairfax argued its headlines and bylines constituted "a substantial part of each article" (beyond 'fair use')and were protected literary works. Source: The Australian (Sept 2008) http://www.theaustralian.news.com.au/story/0,,24290126-7582,00.html a

Fairfax is attempting to claim copyright over the headlines and bylines from The Australian Financial Review

Reed Elsevier's ABIX service reproduces many AFR headlines and bylines verbatim as part of its news aggregation service for its subscribers.

Fairfax argued its headlines and bylines constituted "a substantial part of each article" (beyond 'fair use')and were protected literary works.

Source: The Australian (Sept 2008) http://www.theaustralian.news.com.au/story/0,,24290126-7582,00.html

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Problems with copyright Restricts dissemination of knowledge to those who can afford to pay for it These days, serves corporations rather than authors, artists, creators Corporations mostly concerned with economic rights not moral rights Wishes of creator not respected by subsequent licence holders e.g.:Michael Jackson selling rights for Beatles ’ songs to be used in advertisements; Use of Kurt Cobain's likeness in Rock Band. Automatic application is a blanket solution Creativity shackled, reduces free critique ( Lawrence Lessig ) Artificially imposes scarcity in order to benefit corporations ( John Gilmore, EFF )

Restricts dissemination of knowledge to those who can afford to pay for it

These days, serves corporations rather than authors, artists, creators

Corporations mostly concerned with economic rights not moral rights

Wishes of creator not respected by subsequent licence holders e.g.:Michael Jackson selling rights for Beatles ’ songs to be used in advertisements; Use of Kurt Cobain's likeness in Rock Band.

Automatic application is a blanket solution

Creativity shackled, reduces free critique ( Lawrence Lessig )

Artificially imposes scarcity in order to benefit corporations ( John Gilmore, EFF )

Online threats to intellectual property Jenkins argues that “reworking cultural materials has become a central part of the process of media consumption” ‘ textual poaching’ — sampling, intertextuality, quoting, filmic reference, remakes, spoofs Redistribution, commercial appropriation The challenges of ‘fan culture’ — embracing your audience

Jenkins argues that “reworking cultural materials has become a central part of the process of media consumption”

‘ textual poaching’ — sampling, intertextuality, quoting, filmic reference, remakes, spoofs

Redistribution, commercial appropriation

The challenges of ‘fan culture’ — embracing your audience

The work of art in the age of digital reproduction Controversy has surrounded the introduction of every new technology: cassette, VCR Even easier to copy and manipulate Boundaries of original and copy are blurred Which is the ‘ original ’ Star Wars now? The copy is technically identical to the original as they ’ re both just bits Is textual poaching the logical outcome of postmodernist approaches to meaning?

Controversy has surrounded the introduction of every new technology: cassette, VCR

Even easier to copy and manipulate

Boundaries of original and copy are blurred

Which is the ‘ original ’ Star Wars now?

The copy is technically identical to the original as they ’ re both just bits

Is textual poaching the logical outcome of postmodernist approaches to meaning?

Alternative solutions Copyleft The open source movement General Public License (GPL) But what ’ s to stop commercial exploitation? Creative Commons

Copyleft

The open source movement

General Public License (GPL)

But what ’ s to stop commercial exploitation?

Creative Commons

Corporate solutions Copyright licenses with individuals Copyright transfer required before payment Copyright of work by staff belongs to corporation Syndication: bulk licenses of agency works Next step: embed copyright licenses electronically in digital works to prevent copying (digital rights management or DRM) New problems: lending rights eroded ( Stallman: “ The Right to Read ” ); fair use rights eroded; DRM systems have no expiry date

Copyright licenses with individuals

Copyright transfer required before payment

Copyright of work by staff belongs to corporation

Syndication: bulk licenses of agency works

Next step: embed copyright licenses electronically in digital works to prevent copying (digital rights management or DRM)

New problems: lending rights eroded ( Stallman: “ The Right to Read ” ); fair use rights eroded; DRM systems have no expiry date

Fair use for students Because of special provisions in the Copyright Act (sections 40 and 103C), you can use copyright material for research or study, provided your use is “fair”. The "10% rule" for reproducing text in electronic form 10% of the number of words; or one chapter, if the work is divided into chapters. Download the Fact Sheet for students and researchers Download Information Sheet G11 for information on copyright and photographs

Because of special provisions in the Copyright Act (sections 40 and 103C), you can use copyright material for research or study, provided your use is “fair”.

The "10% rule" for reproducing text in electronic form

10% of the number of words; or

one chapter, if the work is divided into chapters.

Download the Fact Sheet for students and researchers

Download Information Sheet G11 for information on copyright and photographs

5 factors affecting fair use: the purpose and character of the dealing (for example, copying in connection with a course is more likely to be fair than copying for research which may be used commercially); the nature of the work (for example, it may be less fair to copy a work resulting from a high degree of skill than a mundane work); the possibility of obtaining the work within a reasonable time at an ordinary commercial price (generally, it is unlikely to be fair to photocopy all or most of a work that you can buy); the effect of the dealing on the potential market for, or value of, the work (making a copy is unlikely to be fair if the publisher sells or licenses copies, for example from its website); and in a case where part only of the work is copied, the amount and substantiality of the part copied in relation to the whole work (it is less fair to copy a large or important part of the work than to copy a small or unimportant part

5 factors affecting fair use:

the purpose and character of the dealing (for example, copying in connection with a course is more likely to be fair than copying for research which may be used commercially);

the nature of the work (for example, it may be less fair to copy a work resulting from a high degree of skill than a mundane work);

the possibility of obtaining the work within a reasonable time at an ordinary commercial price (generally, it is unlikely to be fair to photocopy all or most of a work that you can buy);

the effect of the dealing on the potential market for, or value of, the work (making a copy is unlikely to be fair if the publisher sells or licenses copies, for example from its website); and

in a case where part only of the work is copied, the amount and substantiality of the part copied in relation to the whole work (it is less fair to copy a large or important part of the work than to copy a small or unimportant part

More information The Australian Copyright Council http://www.copyright.org.au The Writers Guide to making a digital living http://www.australiacouncil.gov.au/writersguide Arts Law Centre of Australia Online - Legal issues for bloggers: http://www.artslaw.com.au/legalinformation/LegalIssuesForBloggers.asp Copyfight blog http://copyfight.corante.com/

The Australian Copyright Council

http://www.copyright.org.au

The Writers Guide to making a digital living http://www.australiacouncil.gov.au/writersguide

Arts Law Centre of Australia Online - Legal issues for bloggers: http://www.artslaw.com.au/legalinformation/LegalIssuesForBloggers.asp

Copyfight blog

http://copyfight.corante.com/