Australian Copyright Law Research Articles

White interference, bad collaborations and new norms in Indigenous art: Can intellectual property law reforms fix this?

Indigenous art has had longstanding issues with Australian copyright law, including the issue of collaborations in Indigenous art. In 2023, a related issue concerning allegations of ‘white interference’ surfaced. Those allegations highlighted the problem of forming ethical collaborations in the Indigenous arts industry relying on existing law. Partnerships between Indigenous and non-Indigenous people to produce art have also been validly made leading to collaborations known as the ‘new norm'. This article explores white interference, bad collaborations, and new norms in Indigenous art. It analyses existing legal protections and those proposed by IP Australia, the Productivity Commission, and a Parliamentary Standing Committee aimed at protecting communal Indigenous Knowledge and the rights of Indigenous artists.

Perspectives on the Relationship Between Copyright and Design Law after Cofemel/G-Star – The Australian Regulation of Copyright/Design Overlap as a Role Model for European Law?

Abstract The relationship between copyright and design law has again come more into focus as a result of the Court of Justice of the European Union’s (CJEU) decision in the Cofemel/G-Star case. EU law enables dual protection of designs both through copyright and through design law. Australian copyright law tries to exclude or at least limit dual protection. This article considers the advantages and disadvantages of dual protection and outlines a suggestion for sharpening the distinction between copyright and design law.

Artificial intelligence and challenges for copyright law

Abstract The question of who should own the copyright of a creative work by an artificial intelligence (Al) is as yet largely unanswered. Due to the author’s increased distance from the works being created, the granting of copyright protection to AI has not been forthcoming. This article assesses the prevalence of AI- and computer-generated works in which, beyond the initial input, the works produced involve more artificial than human contribution, and the impact this has on authorship. While the main geographical focus of this article is Australia, it makes comparisons with the UK and New Zealand (NZ) to explore how Australian copyright law can be adapted to incorporate positive aspects of UK and NZ law. This article explains how the statutory provisions in both the UK and NZ are undeniably far-sighted in the modern world, in which computer-generated programmes are increasingly used. This article argues that the case-by-case basis is most suitable when deciding the human entity who is the fortunate receiver of copyright protection in works that are essentially made by an advanced non-human entity.

Australian Copyright Law Impedes the Development of Artificial Intelligence: What Are the Options?

Australian Copyright Law Impedes the Development of Artificial Intelligence: What Are the Options?

Australian Copyright Law Impedes the Development of Artificial Intelligence: What Are the Options?

Artificial Intelligence (AI) is an emerging technology that has a huge potential in contributing to the Australian economy and addressing economic and social problems in society. However, Australian copyright laws are likely to impede the development of AI, and machine learning in particular, by requiring authorization every time when copyrighted content is used in machine learning processes. This puts Australian AI industries in competitive disadvantage, since other AI-focused jurisdictions, such as the US, EU, UK and Japan, allow such use under copyright exceptions. After analyzing the scope of copyright with relation to machine learning and licensing options, this paper examines different copyright exceptions (fair use, fair dealing and EU-style specific TDM exception) as potential solutions for Australia.

Point and Shoot: Originality, Authorship, and the Identification of the Copyright Work in Modern Photography

This article explores how profound technological developments in photography have problematised concepts of the photograph, authorship, and originality in Australian copyright law. Radical technological change has resulted in highly automated and ubiquitous photographs, inviting questions about what constitutes a ‘photograph’ as defined in the Australian Copyright Act, when a photograph is sufficiently original, and how the definition of an ‘author’ of a photograph as the person who ‘took’ it should be interpreted. The paper is the first to analyse these issues, ameliorating the relative dearth of serious scholarly investigation of the contemporary photograph under Australian copyright law and a paucity of judicial attention. The article considers the meaning of ‘photograph’ and ‘photography’ under the Australian Copyright Act and how software and explains how new practices in a ‘post-photography’ world challenge those concepts. It then explores photographic originality and investigates how increasingly automated modes of photography diminish if not eviscerate originality in contemporary photography. The article then focuses on photographic authorship, interrogating the statutory definition of the author of a photograph as ‘the person who took it’. The article proposes a number of copyright law reform suggestions to better align copyright law with contemporary photographic technological developments and artistic practice.

Copyright, Heritage and Australian Aboriginal Art

How Australian copyright law deals with Aboriginal painting has changed since the late 1980s. Prominent cases have moved the law towards greater protection and offered some recognition of Aboriginal understandings of their cultural heritage. This paper focuses on writing about copyright and Aboriginal art and comments on four issues that may warrant closer attention: copyright, cultural heritage and self-determination; the criteria for copyright protection; appropriation of art works; and the 'common place' of law and Aboriginal art. The first point examines the value of adding ideas from cultural heritage into writing about copyright. It suggests a tension with heritage may be present in some copyright writing, and that an underlying motif for both areas is self-determination. The second section examines the criteria for copyright protection. It questions a continued concern in some copyright writing with the requirement of originality. And it explores an apparent lack of appreciation of the significance of recent case law in some of the literature, especially from North America. The third section considers appropriation of art works, both as a narrower concept that may infringe copyright and more widely. It considers how the cultural value of a work could be drawn on in arguments to limit appropriation. The final section argues that continuing to rely on copyright law, if specific indigenous cultural legislation is not achievable politically, may not be so serious a limitation as is sometimes suggested. In the paper, attention is centred on Australian Aboriginal painting and legal writing about it from Australia and internationally. References are made to the somewhat similar legal and political situations of indigenous people in Canada and the US, and some contrasts are noted with the situations in Africa and elsewhere. The paper concludes with the thought that there may be little point debating the merits of copyright (and other law) reform. It is over twenty years since high-level reform reports have emerged in Australia. They have suggested that copyright does not provide adequate protection to indigenous cultural heritage. The law, however, has not changed in response - at least it has not changed in terms of explicit law reform. As far as case law is concerned, a series of copyright cases has strengthened protection, and native title litigation in Australia has revolutionised the underlying framework. Through these developments, copyright protection of Aboriginal art has gained a greater place in legal discourse. But it seems likely that the perception has changed even more in other areas of society. What could be called the 'common place' of copyright law and Aboriginal art may be one of the most important changes in Australia since the 1980s. At one time, infringers of indigenous cultural heritage genuinely may not have considered that any legal protection could exist for the material they used. Other appropriators may have made a pragmatic decision based on the perceived unlikelihood of indigenous legal action. Now, neither approach could be nearly so likely.

Protection of Compilations and Databases after IceTV: Authorship, Originality and the Transformation of Australian Copyright Law

In IceTV Pty Ltd v Nine Network Australia Pty Ltd, the High Court transformed Australian copyright law, by placing a new emphasis on the role of an author or authors in producing original works. The centrality now required to be given to authorship has focused attention on important subsidiary questions, which have yet to be satisfactorily resolved in the case law. These questions include: What is needed to establish that a work originates from an author? When will the use of computers in producing a work result in a denial of copyright on the basis that there is insufficient human authorship? And what conditions must be satisfied for multiple human contributors to qualify as joint authors? Resolving these issues is especially important in determining the extent to which the new Australian copyright law protects informational works, such as directories. In examining these issues, this article critically analyses the reasoning in IceTV and its progeny, concluding that a failure to sufficiently engage with Anglo-Australian precedent has created avoidable uncertainties and ambiguities in central legal doctrines of Australian copyright law. The article also identifies internal contradictions in the reasoning in the judgments in IceTV, which have further compromised the coherency of the law. The article concludes that greater consistency and coherency in Australian copyright law can only be achieved by frankly acknowledging both the extent to which IceTV departed from precedent and the flaws in the reasoning of the plurality judgments in that landmark case.

Fair use and fairness in copyright: A distributive justice perspective on users' rights

Australia is once again considering how to best protect the public interest in copyright. One of the most contested current issues in Australian copyright law is the question of limits and exceptions to the rights of copyright owners. The recent Australian Law Reform Commission (‘ALRC’) review into copyright exceptions recommended broadening and simplifying the exceptions to better protect the interests of users to access and reuse copyright material for socially beneficial purposes. Despite the exhaustive consultation and report produced by the ALRC, and the support lent to it by the recent Productivity Commission Inquiry Report, there is little consensus about its recommendations. The proposal to introduce fair use is strongly contested by rightsholder groups, who are reluctant to cede further control over the use of information and cultural goods, particularly given the challenges they have faced transitioning to a digital environment.

In Support of Tolerated Use: Rethinking Harms, Moral Rights and Remedies in Australian Copyright Law

In this article, we propose a thought experiment: what if copyright law could better incorporate social and cultural norms around content engagement and re-use? We draw on empirical research that explores the norms of different creative communities when they reuse the work of others, and the norms of consumers around sharing. We outline how both creators and copyright users engage almost daily in small-scale infringement that does not substitute or disrupt copyright owners’ established markets, either because the uses are highly transformative, or personal and unremarkable. We suggest that copyright could better reflect these norms if both norms and moral rights were considered as part of a remedies assessment. We propose that in cases where work has been attributed and treated with integrity, and where the use does not directly cause economic harm to the copyright owner, courts should award only nominal damages and decline to order injunctive relief.

Empowering Authors via Fairer Copyright Contract Law

The remuneration of Australian authors has been decreasing over the last few decades, partly due to unfair contracts between authors and publishers. At the same time, Australian copyright law appears to do nothing to address the problem. The freedom of contract doctrine that still prevails in Australian copyright contract law is not able to tackle the problem of unfair distribution of revenues effectively, and its shortcomings are not well addressed by either general contract law doctrines or collective bargaining in the publishing sector. This article argues that Australia should consider addressing the problem by introducing certain rights inalienability restrictions in copyright law that are available in a number of jurisdictions overseas. The article discusses the rationales of introducing such provisions under Australian copyright law, such as unequal bargaining power, the prediction problem, fairness and utilitarian approaches. It counters the arguments that alienability restrictions are ineffective, and refers to the most recent empirical studies that show the ability of some alienability provisions to increase author remuneration.

Empowering Authors via Fairer Copyright Contract Law

The remuneration of Australian authors has been decreasing over the last few decades, partly due to unfair contracts between authors and publishers. At the same time, Australian copyright law appears to do nothing to address the problem. The freedom of contract doctrine that still prevails in Australian copyright contract law is not able to tackle the problem of unfair distribution of revenues effectively, and its shortcomings are not well addressed by either general contract law doctrines or collective bargaining in the publishing sector. This article argues that Australia should consider addressing the problem by introducing certain rights inalienability restrictions in copyright law that are available in a number of jurisdictions overseas. The article discusses the rationales of introducing such provisions under Australian copyright law, such as unequal bargaining power, the prediction problem, fairness and utilitarian approaches. It counters the arguments that alienability restrictions are ineffective, and refers to the most recent empirical studies that show the ability of some alienability provisions to increase author remuneration.

Observing and Respecting Diverse Knowledge Traditions in a Digital Archive of Indigenous Language Materials

Australian copyright law and Indigenous Cultural and Intellectual Property (ICIP) have always sat uncomfortably together, each with their own internal logic and legitimacy, but forcing certain arrangements and compromises when applied to specific contexts. The collection of Indigenous language materials into a digital archive has required finding means to observe and respect these two incongruent knowledge traditions. The Living Archive of Aboriginal Languages, an open online repository containing thousands of books in dozens of languages from Indigenous communities of Australia’s Northern Territory, offers opportunity to explore how the need to attend to both knowledge traditions led to specific decisions and practices. In particular, where the Australian copyright law was satisfied, additional steps were needed to respectfully incorporate Indigenous perspectives. This paper outlines the negotiations and compromises inherent in seeking a solution which observes and respects both Indigenous and western knowledge practices in a unique collection of cultural heritage materials.

Calculating the consequences of narrow Australian copyright exceptions: Measurable, hidden and incalculable costs to creators

The kind and extent of exceptions and limitations to copyright monopolies are a major focus of copyright reform discussion worldwide. The debate is often portrayed as pitting the interests of creators against users. Australian copyright law features narrow and limited exceptions. Australian creators benefit from copyright monopolies; but do they suffer any costs for lack of flexible exceptions? A national survey of creators showed that they experience significant costs in time and money in making work; avoid or abandon projects because of copyright problems; and avoid developing ideas for projects that involve use of third-party copyrighted materials. These costs have previously been uncalculated and not included in national policy debate. The results provide information not only for the Australian context but for policy discussion internationally.

The Right to Published Editions: Historical Lessons to Be Learned

The right to published edition was introduced in Australian copyright law in 1968 and in 2018 it is celebrating its 50th anniversary. Despite its relatively long history, there is very little, if any, information or commentary on this right. The article provides a socio-legal historical analysis of the origin, evolution and effectiveness of this right in Australia and identifies lessons that could be learned from the history of this right, in particular in the context of the current European discussion on a proposed new right to press publishers.

Moral Rights: Exploring the Myths, Meanings and Misunderstandings in Australian Copyright Law

This article examines how moral rights are treated in Australian publishing contracts, and whether this approach is consistent with the expectations of authors, journalists and academics. Although, in theory, moral rights cannot be sold or assigned in Australia, the apparent wide scope for exceptions raises questions of whether there is any real protection afforded to creators under the Copyright Act 1968 (Cth), notably in circumstances that relate to pressure on creators to accept contractual terms in order to get published. Additionally, Australian case law reflects some uncertainty about the traditionally accepted non-economic nature of moral rights. The article examines recent case law in this field, found in Meskenas, Perez and Corby, and considers the literature associated with development of moral rights in Australia. It then presents the findings of a two-part study of moral rights in Australia; first through the results of interviews with 176 Australian authors, journalists and academics, followed by an analysis of 20 publishing contracts. It concludes that — in some, but not all, instances — a combination of the exceptions allowed under the Act and practical exigencies have diluted the unique character of authors’ moral rights and have created an environment of uncertainty.

Digital access to culture: copyright in photographs of two-dimensional art under Australian copyright law

Photographs of cultural collections are an essential means of disseminating art and democratizing access to culture. This article reviews the policies of five major Australian galleries on access to their collections. It finds they tend to claim copyright in photographs of their collections, including of public domain works. This reflects a perceived entitlement to control access to their digital collections, often bolstered by a misstatement of copyright exceptions, restrictive quasi-copyright contract terms, licensing practices, and physical property rights in photography's appurtenances. This curbs the emancipatory potential of digitization, generating a conflict between the property interests of cultural institutions and the public interest in enhanced access to culture. The problem is particularly acute with respect to images of public domain art, exclusive control over which diminishes the public domain. This article considers the novel question of whether copyright subsists in photographs of two-dimensional art under Australian law, arguing that such photographs lack the originality indispensable to copyright subsistence. This conclusion significantly undermines cultural institutions’ licensing models and challenges misconceptions of property rights in the photographic surrogates of two-dimensional cultural objects. The article urges cultural institutions to liberate the digital surrogates of public domain art to enhance access to cultural capital.

Is IPTV an Internet service under Australian broadcasting and copyright law

This paper questions the common legal assumption that Internet protocol television (IPTV) in its typical form is necessarily a service delivered using or over the Internet. It uses two aspects of Australian law one in broadcasting and the other in copyright to examine whether the Internet exclusions enacted truly apply to such IPTV. The conclusion reached is that neither applies for the same reason; IPTV in the form outlined does not implicate the Internet. Copyright 2010 David Brennan. No part of this article may be reproduced by any means without the written consent of the publisher.

The Australia-US free trade agreement’s impact on Australia’s copyright trade policy

The Australia-US Free Trade Agreement (AUSFTA) required extensive changes to Australian copyright law. This paper assesses the impact of these changes one decade on. It considers, first, whether the costs and/or benefits predicted in 2004 have eventuated, finding clear evidence that AUSFTA has undesirably constrained domestic copyright policy, but no clear evidence either of the feared financial costs to society, or, importantly, the touted benefits to copyright owners. The most significant impact of AUSFTA’s copyright provisions, however, appears to have been on Australia’s copyright trade policy. Pre-AUSFTA, Australia promoted multilateral standards and mostly sought to comply with, but not exceed, international IP standards. Post-AUSFTA, Australia has pursued an approach akin to that of the US: endorsing international copyright rules that are significantly stronger, and more detailed. The paper queries whether this shift has been in Australia’s national interest, and raises interesting questions of path-dependence in policymaking and trade negotiations that warrant more, and broader attention in the literature.

Reformulating the 'fair dealing' defence in copyright law to accommodate transformative musical works and maximise creativity in Australia

This paper aims to examine the effectiveness of Australian copyright law in fostering the development of music works that derive from digital sampling or remixing - known throughout the paper as 'transformative musical works'. The paper will begin with scene-setting - providing an insight into the world of digital musical sampling and the production of transformative work. Having set the scene, this paper will analyse various theoretical justifications underpinning copyright law, and use them to determine the effectiveness of Australian copyright law. Ultimately, this paper aims to provide an observation of the current law from a utilitarian standpoint, and propose possible reforms that adhere to the established principles, derived from the study of legal theory. In brief, the paper aims to assess how effectively Australian copyright law fosters and develops musical creativity, in light of the increasing incidence of transformative musical works and how the law can be modified to improve its effectiveness.