Current Copyright Research Articles

ПРАВОВЕ РЕГУЛЮВАННЯ АВТОРСЬКОЇ ВИНАГОРОДИ ЗА ЗАКОНОДАВСТВОМ УКРАЇНИ

The article is devoted to the analysis of normative-legal regulation of payment of royalties. The main types of royalties under current national legislation have been studied. It is established that the amount and procedure for payment of royalties for the creation of a work are established in the copyright agreement or in agreements concluded on behalf of the subjects of copyright by collective management organizations with persons who use the works. The most important property right of the inventors is the right to remuneration for intellectual activity, which contributes to the formation of promising areas of science and technology. Author's remuneration is a certain payment in favor of the author of the work, due to the use of this work by another person. The right to remuneration does not belong to the number of personal non-property or property copyrights. Legislative consolidation of royalties is a logical necessity for the development of inventive creative activity in Ukraine. The legislation of Ukraine may establish minimum rates of royalties and the procedure for their application and minimum rates of remuneration for the use of related rights and the procedure for their indexation. Despite the economic nature of the fee, its legal nature, in general, is an essential aspect of copyright and, in addition, allows you to assess the current copyright system, both at the level of individual organizations and nationwide. It is determined that the national legislation rather fragmentarily embodies the basic principles of payment of inventory fees, which certainly slows down the progressive processes of inventors and causes legal disputes between inventors, employers and other subjects of legal relations in the field of invention.

Licensing FAIR Data for Reuse

The last letter of the FAIR acronym stands for Reusability. Data and metadata should be made available with a clear and accessible usage license. But, what are the choices? How can researchers share data and allow reusability? Are all the licenses available for sharing content suitable for data? Data can be covered by different layers of copyright protection making the relationship between data and copyright particularly complex. Some research data can be considered as a work and therefore covered by full copyright while other data can be in the public domain due to their lack of originality. Moreover, a collection of data can be protected by special rights in Europe to acknowledge the investment in time and money in obtaining, presenting, arranging or verifying the data. The need of using a license when sharing data comes from the fact that, under current copyright laws, when rights exist, the absence of any legal notice must be understood as the default “all rights reserved” regime. Unless an exception applies, the authorisation of right holders is necessary for reuse. Right holders could use any text to state the reusability of data but it is advisable to use some of the existing licenses, and especially the ones that are suitable for data and databases. We hope that with this paper we can bring some clarity in relation to the rights involved when sharing research data.

Version Recording: A Review of Indian Legislation

With the current copyright legislation in the country mainly through the 2012 amendment of the Copyright Act, one needs either explicit consent or appropriate license so as to make a version recording of a copyrighted song in public. However, there have been a series of litigations in India concerning the provisions under the Copyright law allowing version recording of musical work. This paper discusses and examines the origin of version recording and its impact on music industry also it examines the law relating to version recording rights in the light of contemporary trends in the Indian music industry.

How We Do Harm: Do Copyrighted Scales Benefit Research in the Developing World?

One of the most difficult challenges in carrying out global health research in the developing world is the issue of copyright protection of questionnaires. The current reality is that research in the developing world is often hampered by inadequate or even non-existent budgetary support. From our point of view, an additional hindrance to carrying out research in developing countries is the insistence by holders of questionnaire copyrights that they are paid for the use of their testing instruments. One adverse consequence of demands for compensation by copyright holders may be that worthwhile research is impeded or even prevented. It is argued that the practice of charging non-funded research projects for the use of copyrighted questionnaires denies inclusion of data on world minorities, and thus prevents the potential benefits that such data could provide. In this commentary, we focus on copyrighted instruments and the restrictions that they often represent for researchers in the developing world. More broadly, we argue that to the extent that research in the developing world is impeded by demands for developed world levels of compensation for the use of proprietary tests, the development of vital health programs that are designed to serve these populations can be adversely affected. Several strategies for rectifying inequities posed by current copyright policies are suggested for the promotion of health research in the developing world.

Volition in Violation of Copyright

Many recent copyright infringement cases have focused on the question of volition. As contentious as the matter has become in current copyright doctrine, the issue is relatively new. From the passage of the first Copyright Act in 1790 forward, U.S. copyright cases devoted no discussion to the issue. Two centuries later, however, the advent of the Internet raised this issue, among so many others. Nothing is totally new under the sun. As far back as enactment of the 1976 Act, concern was expressed lest telephone companies be ensnared in liability, to the extent that their facilities were used in the retransmission of cable signals. Congress adopted the “passive carrier” exemption, releasing from liability those “whose activities with respect to the secondary transmission consist solely of providing wires, cables, or other communications channels for the use of others.” That provision was necessary as telephone companies risked liability in its absence. Nobody at the time raised lack of “volition” as even a theoretical defense to that imputation. Decades later, with the advent of the Internet and online services, those same considerations multiplied along with the explosion of new ways to use “wires, cables, or other communications channels.” This Article began as the 32d Annual Horace S. Manges Lecture, delivered at Columbia Law School on April 1, 2019.

Prospects and challenges posed by blockchain technology on the copyright legal system

In the current copyright law and technology environment, two prominent problems must be considered when enforcing and executing copyrights: (i) the difficulty of proving authorship/ownership of a copyright; and (ii) the difficulty of conducting copyright transactions. The invention of blockchain technology has made it possible to solve these two issues. First, the use of blockchain technology with the InterPlanetary File System (IPFS) is an excellent mechanism for copyright authentication and document preservation. This mechanism allows authors (copyright owners) to prove authorship of their works and copyrights ownership. However, this mechanism for copyright authentication and document preservation may not be applicable in the future primarily because the computer software currently used may be upgraded in the following years. Second, the combination of Ethereum Blockchain and smart contracts can reduce transaction costs and enhance the efficiency of copyright assignments and licensing transactions. However, many legal problems regarding smart contracts have yet to be addressed. These problems include identifying the contracting parties in the anonymous blockchain network, dealing with scenarios where both contracting parties want to amend the implemented smart contracts, explaining code-based smart contracts and setting up an internal dispute resolution mechanism. Unlike the traditional transmission control protocol/Internet protocol network, where any activity is traceable, users on blockchain technology remain anonymous and their activities on the blockchain are hardly traceable. Although the blockchain itself is unlikely to become a hotbed of copyright infringement, the combination of the Ethereum Blockchain, the IPFS and smart contracts may make the entire process a hotbed of copyright infringement. Therefore, this situation poses considerable worries regarding copyright infringement on the blockchain. When the decentralized and anonymized blockchain and peripheral technologies mature, they will have considerable influence on copyright protection. This problem must be addressed by the copyright legal system in the current wave of blockchain technology implementation.

Can Copyright be Tokenized?

Blockchain offers an abundance of new opportunities for the art industry. Blockchain-based equity crowdfunding, as one such opportunity, could potentially allow the tokenization of copyright in future artistic projects. Such ‘copyright tokens’ could be sold via crowdfunding platforms to investors in order to attract funding for the artistic project at stake. Although the business model behind Blockchain-based equity crowdfunding is an interesting one indeed, it presents a number of legal issues. This article explores the various means by which such a tokenization scheme could be achieved from the perspective of current Australian copyright laws, to conclude that there are no straightforward solutions to what is a thus far unexplored application of copyright law.

Digitisation, Copyright and the Glam Sector: Constructing a Fit-For-Purpose Safe Harbour Regime

Copyright law does not currently align with the legitimate activities of galleries, libraries, archives and museums (GLAMs). The GLAM sector plays a central role in collecting and promoting access to cultural works. Increasingly, GLAM institutions are employing innovative digital technologies to expand access to culture and foster greater levels of cultural participation. Despite the utility underlying digitisation, copyright limits the use of digital technologies within the GLAM sphere. This article examines current copyright limitations and demonstrates copyright's significant limiting effect. It argues that reform is necessary to strengthen the right to participate in cultural life and to remedy harms inflicted by the current copyright regime. Creating a fit-for-purpose safe harbour would empower institutions to employ digitisation within a framework of reasonable copyright constraints. Accordingly, this article constructs a potential safe harbor that permits non-commercial GLAM digitisation, while also protecting copyright holders and tikanga Māori. The Copyright Act 1994 is currently under review. New Zealand ought to seize the present reform opportunity to invigorate participation in cultural life and enrich the cultural fabric of society.

From the Myth of Babel to Google Translate: Confronting Malicious Use of Artificial Intelligence – Copyright and Algorithmic Biases in Online Translation Systems

Many of us rely on “Google Translate” and other Artificial Intelligence and Machine Learning (“AI”) online translation on a daily basis for personal or commercial use. These AI systems have become ubiquitous and are poised to revolutionize human communication across the globe. Promising increased fluency across cultures by breaking down linguistic barriers and promoting cross-cultural relationships in a way that many civilizations have historically sought and struggled to achieve, AI translation affords users the means to turn any text — from phrases to books — into cognizable expression. This Article discusses the burgeoning possibilities in the 3A Era (Advanced, Autonomous, AI systems), of AI online translation as accessible tools, whose users are data suppliers and feedback providers, and hence, contributors to the programing and improvement processes of these AI translation tools. On the other hand, this Article also acknowledges the real concerns this new realm raises, stemming from malicious uses of AI, which are most often concealed from the public. Such hidden aspects include built-in algorithmic biases, such as race, sex and gender, color, religion, or national origin biases, which this article addresses in a discussion of AI systems’ systemic shortcomings. Because AI translation systems learn and function through the data they receive from data providers, they are vulnerable to societal biases; when users offer feedback, these systems may perpetuate sexist, racist, or otherwise objectionable expressions, of which other users, when consulting the systems, are unaware. Furthermore, examining the current copyright regime, the Article claims, for the first time, that we (as users), have become inadvertent infringers of legal rights, since a translation, according to copyright law, is a derivative work owned and controlled by the author. As such, an author’s permission is necessary prior to the creation of a translation, with the author in a position to collect payment when due. Moreover, under current law, the Fair Use doctrine is frequently inapplicable. This Article claims that the legal and academic communities, and policy makers, have failed to address AI translation systems within the copyright regime and further argues that this failure renders the current copyright regime outdated and ill-equipped to handle the advent of sophisticated AI tools. Additionally, this Article states that the present inability of AI technology to routinely capture the nuance of human prose gives rise to another concern. The ubiquitous role such (as-yet) flawed AI online translation systems play in translation services, for personal or commercial purposes, should be better balanced with the concerns of authors — who may worry about the linguistic integrity of an AI translation of their work — and their rights, in certain circumstances, to control translations of their work and object to unauthorized AI translations. Understanding the concerns attending unauthorized AI translations under the current copyright regime, while still recognizing that users should be able to profit from the wellspring of literacy which AI translation offers, this Article argues for a harmonization of AI translation with amended copyright protection. To that end, this Article calls on policymakers to adjust the current legal regime to include advanced technologies and suggests new principles for combining legal tools with technological ones. Such an approach would better balance the benefits of accessible AI translation systems with the requirements of a modified, modern copyright regime, via the implementation of a method coined “fair use and equality by design.” Additionally, by recognizing the conflicting interests at stake, this Article invites international policymakers, such as WIPO (the World Intellectual Property Organization), to promote the development of international standardized guidelines for the use of AI translation systems, and possibly other AI systems, by emphasizing fair use (exemptions and limitations). This Article concludes that by understanding the significant drawbacks of AI translation systems and adopting the suggested principles, as discussed throughout this study, policymakers can promote access to an evolving AI technology, while also recognizing the integrity of authors’ linguistic choices and preserving the beauty of linguistic diversity — which, as the ancient story of Babel hinted, is valuable because of, not despite, the challenges it poses.

The Value Gap in Music Markets in Canada and the Role of Copyright Law

The Value Gap in Music Markets in Canada and the Role of Copyright Law

An alternative universe? Authors as copyright owners- the case of the Japanese Manga Industry

Comics today are a major business and they form the source material for a whole range of sectors in the creative industries. In an environment where major investments are necessary to turn a comic into a cross-media success, commercial intermediaries such as Disney have become the key copyright holders. By controlling the copyright, they ensure full control over all aspects of its monetisation. However, this is not the only way success can be achieved on a commercial scale. In Japan, the creators of comics (Mangaka) keep their copyright- a direct contradiction to current copyright thinking. This paper addresses this conundrum by examining both the Manga business and copyright law to identify if the reasons why copyright is not centralised in the hands of the commercial intermediary, especially the publishers. The analysis will show that while there are differences between Japan and the EU/US, but these do not affect the role of copyright law and indeed failing to acquire the rights is a choice, not a necessity. Instead, this article will highlight that the competitive Manga market in combination with the uniquely Japanese publication right and social control best explain why Mangas are successful and Mangaka keep their rights.

Research on legal issues related to ‘Live Sports’ under the Chinese Copyright Law

ABSTRACTSince the Beijing Olympic Games spotlight in 2008, the sports industry is frequently presented as the next ‘El Dorado’ of the Chinese economy. The past few years have shown a promising steady growth of the sports industry, supported by government policies. This dynamic context has also increased the opportunities for ‘Live Sports’, which have not yet unleashed their full potential as one of the main sources of revenue for Sports Organizations, and key contributors to investments and developments in the Sports sector. Surfing on the Digital Revolution, ‘Live Sports’ broadcasting and media rights have skyrocketed. However, the Digital Era has opened the door to a new threat menacing the symbiotic relationship between Sports and the Media: that of online piracy and unauthorized diffusion. For a decade, the protection of ‘Live Sports’ has been at the center of many debates focusing on the path to choose, with a recurrent question: Are ‘Live Sports’ copyrightable or not? In the absence of any explicit protection under the Chinese Copyright Law, uncertainty remains and restrains the potential of ‘Live Sports’. This paper will analyze the state of ‘Live Sports’ in the current Copyright Law and the possibilities for adaptation, as well as the opportunity of the adoption of a Sui Generis protection to offer viable protection options.

Making videogame history: videogame preservation and copyright law

The continued accessibility of older videogames is threatened by the obsolescence of the hardware and software platforms on which they operate and the degradation of the physical media on which they are stored. This has made videogame preservation a topic of increasing concern to cultural heritage institutions. However, established preservation techniques, such as migration and emulation, raise numerous issues under copyright law, as they implicate rightholders' exclusive rights as well as protections against the circumvention of TPMs. This is exacerbated by the difficulty of locating the rightholders for a given videogame. Notwithstanding this, cultural heritage institutions may still take advantage of some flexibilities within the current copyright framework, in particular the exceptions relating to reverse engineering, decompilation, cultural preservation and orphan works, in order to begin the work of videogame preservation. In the longer term, it may be necessary for the sector to collaborate more closely with the videogame industry and to lobby for legislative reform.

The admissible amount of borrowings as a problem of organization of research work and of quality control

The aim of the research . The determination of the permissible amount of non-original text in the automated verification of scientific documents for plagiarism has become a new, but already common phenomenon in Russia. The experience with the use of threshold values shows that it may have different effects on the final quality of such documents and therefore needs special consideration. The purpose of the article is to study the positive and negative consequences of using the allowable amount of borrowing. Methods and materials. Studying local normative acts, issued by national higher education institutions and the analysis of the results of anti-plagiarism tests carried out at the Russian State Library for research documents revealed certain peculiarities of application of the “threshold levels”. The results. The “threshold levels” usage would doubtlessly simplify the treatment of the plagiarism test results. In addition, authors of research works obtain a certain stimulus to more careful and thorough work over their papers, lecturers and academic advisors could detect compilation texts far easier than ever before. Meanwhile different organizations set different frames for volumes of borrowings when the same type of research work being considered, and there can be found no grounds related to the branches of science. The introduction of the restrictions on the amount of borrowing does not change the current Copyright legislation of the Russian Federation, nor does it make plagiarism legitimate. In that respect a matter of a particular importance turns out to explain to students and postgraduates the main principles of scientific ethics and of the specific features of the plagiarism tests. A significant negative consequence of using the allowable amount of borrowing is that in different organizations the same text can be evaluated quite differently. The diversity of concepts of the admissible amount of borrowings makes it hard to compare the results of the plagiarism tests carried out at different establishments and determining a final level for the text quality. The admissible amount of borrowings would often correspond to the demand to quote other publications in the volumes justified by the aims of the quotation. The problems emerge when the number of the correct quotations satisfies the demand but their total volume exceeds the set frames. Another possible problem comes when the part of the borrowings fits those frames while the appropriateness of quotations remains questionable. The data on the borrowed volumes received by the primary computer plagiarism test cannot be considered objective if the volume of text taken by one author from another one’s work is viewed. To detect the degree of borrowings (either correct or incorrect) the report of the system on each of the documents is to be verified by the specialist. Since the year of 2009, the Russian State Library (RSL) has carried out over 4,000 plagiarism tests with usage of specialized software “Antiplagiat.RSL”. Documents were compared to the texts of the sources of the Digital Dissertation Library of the RSL, and the results of the tests revealed diverse forms of plagiarism. Conclusion. The organizational and methodological problems accompanying application of restrictions for borrowings remain unsolved for the moment. In addition, irrespective of the character of those restrictions the conclusion concerning the scientific value and the legitimacy of the research paper is to be made by the members of the academic community, not by the information systems.

Redesigning Indonesia Copyright Act to Accommodate Autonomous Intelligent System: Status Quo and Room for Improvement

Abstract It is an undeniable fact that artificial intelligence has been developed up until the point that it requires a very minimum human involvement. In other words, the current development has brought an Autonomous Intelligent System (AIS) into reality. On one hand, an AIS plays a significant role in creating easier life for human being. On the other hand, however, AIS’ existence creates too much challenge for the current legal framework. In the realm of Copyright law, the very fundamental question is based on the fact that AIS can create copyrightable works on its own. It can create songs, music, paintings, or even a cook-book. In such kind of circumstances, scholars have a thought-provoking debate on whether or not AIS shall be given Copyright. It is the purpose of my research to take a look into Indonesia’s current Copyright Act to analyse (i) to what extent Indonesia’s Copyright Act can be utilised to accommodate AIS and (ii) the aspects of Copyright Act need to be improved in order to accommodate AIS in the Indonesia’s Copyright Act. In order to address the research objectives, I use normative approach by way of literature study. The temporary data gathered from my literature study is then analysed qualitatively in order to reach desirable conclusion. This study finds that (i) there is a very minimum provision with regard to AIS in the Indonesia’s Copyright Act. There have been stipulations to determine who shall be entitled to hold copyright upon a creation. However, there has not been any stipulations allowing the possibility for AIS to be regarded as copyright holder; and therefore (ii) the re-design of Indonesia’s Copyright Act need to accommodate the issues of (a) copyrightability of AIS’ work, (b) the moral rights and economic rights given to AIS, as well as (c) the duration of protection if AIS is to be regarded as a copyright holder.

More Money for Creators and More Support for Copyright in Society—Fair Remuneration Rights in Germany and the Netherlands

The current copyright system is intended to provide an incentive for authors to invest more time and effort in the creation of literary and artistic works (utilitarian argument), recognize the acquisition of a property right as a result of creative labour (natural law argument) and enhance authors’ freedom of expression by offering a source of income that is independent of patronage and sponsorship (free expression argument).1 These arguments may be combined with considerations of industry policy, such as the growth of the creative and telecommunication industries, and the creation of jobs in these industries.2 The basis of all these lines of reasoning, however, is the individual creator. Without the constant efforts of creators, there would be no new literature and art to fuel the publication and dissemination machinery of the industry. A focus on the income situation of the individual creator also ensures the acceptance of copyright law in society. It adds social legitimacy. Who would be against remunerating authors for the time and effort spent on the creation of a new work? There is thus substantial reason to explore legislative measures seeking to ensure that copyright law generates not only a sufficient return on investment for the creative industries but also a decent income for individual creators. With specific copyright contract rules that guarantee a right to fair remuneration, the legislation in Germany and the Netherlands is particularly advanced in this respect. Hence, the question arises: what lessons can be learned from German and Dutch experiences? After a short introduction that refers to recent E.U. initiatives in this area, the following analysis will show that the issue of a fair remuneration for creators has a worldwide dimension. In light of the rationales of copyright protection in continental-European and Anglo-American copyright systems, it becomes clear that the high level of protection that has been reached in both legal traditions and at the international level only appears legitimate if individual creators receive an adequate remuneration for their work.3 Fair remuneration is a universal, worldwide concern (Section I). Against this background, the analysis sheds light on the practical effects of the legislation in Germany and the Netherlands (Section II) and leads to general guidelines for the improvement of the income situation of creators (Section III).

More Unfair Claims About Fair Use: This Time in New Zealand

In two earlier papers I outlined how some stakeholders, large companies and private advocacy groups are currently engaged in a concerted effort to enact major copyright policy changes in Asia Pacific. (SSRN: Barker 2016 and Barker 2018). In this paper I review another new report this time written for Google in New Zealand, authored by Deloitte: Access Economics (2018) in New Zealand, entitled “Copyright in the digital age: An economic assessment of fair use in New Zealand”. This new report purports to assess the economic effect of introducing in to New Zealand law a US style statutory fair use exception to copyright found in the section 107 of the US Copyright Act of 1976 (henceforth called US Style fair use). This new Deloitte New Zealand (Deloitte NZ) report is in fact very similar to, and copies a lot of the material, from another paper in Australia written for Google in Australia, again by Deloitte: Access Economics (2018), also entitled ‘Copyright in the Digital Age’, which was the subject of one of my previous (second) review papers mentioned above Barker (2018). In this paper I review a number of errors in the Deloitte NZ report. Many of these errors replicate the Deloitte Australia Report. However there are key new elements in the Deloitte NZ report to address. The new material is in part due to differences between Australian and New Zealand law, and the fact Deloitte New Zealand replaced the anecdotal evidence in the Australian report, with anecdotal evidence from interviews in New Zealand to make its case more relevant to the local market. The Deloitte NZ report also relied heavily on a model from Scotchmer (2004) to make the case for US style fair use. This was not presented or relied on in the Australian report. I therefore provide a number of additional sections on this in my review of chapter two of the Deloitte NZ report. I also present a new critique of the Deloitte NZ economic model of the responsiveness of US style fair use in my review of chapter five of the Deloitte report, and include a new and better model that clearly contradicts Deloitte NZ's predictions. The main conclusions of my review of the Deloitte New Zealand Report however remain the same as that for the Deloitte Australia Report involving four key flawed assertions in the paper. Assertion 1: that substantial downstream value is lost as a result of current copyright law in New Zealand. The downstream uses of copyright works involved include: text and data mining, digital analytics, cloud computing, transformative, educational and informational uses involving existing copyright works. Assertion 2: that this downstream value is lost due to current copyright law in New Zealand reducing cumulative innovation, and that a US style fair use law can remedy that. Assertion 3: that creativity is booming in the digital world and that introducing a US style fair use law in New Zealand will benefit creative output. Assertion 4: that transaction costs would be lower under a US style fair use system. As we shall discuss this presents an unbalanced picture of the likely impacts of adopting a US style fair use law in New Zealand, the nature and extent of the real current market problems, the scope for market solutions to the alleged problems, the nature and role of copyright and of transaction costs. The Deloitte NZ paper is indeed based on a fundamental misinterpretation of copyright. It fails to adequately acknowledge that copyright merely requires the creator's consent, and provides the basis for a market in creative works and does not prevent use. The Deloitte NZ paper then does not adequately explain why any copyright market might be expected to fail in the manner alleged, nor why the proposed legal intervention (fair use) might be expected to improve outcomes. The Deloitte NZ paper also doesn’t present any real new evidence, particularly drawing on the so-called “big data” that must now be available on digital copyright market transactions. A more useful contribution would further have examined the practical limitations of licensing markets, and the extent to which these might be addressed by new digital technologies, such as artificial intelligence and distributed ledger technology in order to enhance creative market growth, investment and innovation.

Digital Art on the Internet: the limits of the Brazilian Legal System and the Global Contemporary Thinking

This study aims at reaching the emerging global thinking around the relations of access to digital artistic content available on the internet. Through the appointments of the intersection between the knowledges of the law, anthropology, philosophy, physics and art - organized in a multidisciplinary way - the present scientific narrative is build. Initially, a brief history of the idea of constructing copyright in the global context is presented. Subsequently, the digital object is analyzed as material to produce art in the contemporary context. Then, the post-internet cultural phenomenon is observed, so that the current Brazilian Copyright Law System can be inquired due its limits and openings. Finally, the 'Creative Commons' is presented analytically in the face of current demands in the follow of the contemporary understanding around copyright.

The Creative Industry and South African Intellectual Property Law

Abstract This paper seeks to provide a more nuanced view of the creative industry that goes beyond assertions of its contribution to economic growth, which, it is then further argued, requires stringent copyright protection to ensure development. It argues that a critical first step is to optimize an existing copyright framework by addressing its inherent entrepreneurial challenges to better enable authors to garner economic returns. These challenges are identified before the paper delineates the creative industries in South Africa and related policies. It then turns to the ongoing copyright policy formulation process before setting out current and proposed copyright legislative provisions. The paper contends that essential aspects regarding both the creative and commercial aspects must be tackled first. At the creative stage, authors’ inability to use a large range of source works because of the fear of copyright infringement claims can be addressed by elaborating exceptions and limitations. On the commercial front, entrepreneurial capacity building for authors and curbing unfair author, publisher and intermediary contracts is vital. The use of statutory devices such as the reversionary interest, to recover lost or diminished opportunities to obtain direct financial gain from copyright work, could also be considered. Enhancing the viability of collecting societies and ensuring that royalties are paid to authors would also be a critical intervention.

More Unfair Claims About Fair Use in Australia

This paper extends an earlier review of five studies that have been used by a number of large companies and private advocacy groups to promote major copyright policy changes in Asia Pacific. The earlier paper identified how some of the key arguments used by the proponents of these changes were based on faulty or misleading interpretations of data. This paper reviews a new report that has been recently released, written for Google, and authored by Deloitte: Access Economics (2018). This review again isolates a number of false claims being made, this time about the economic effects of fair use in Australia, including four key flawed assertions in the paper. Assertion 1: that substantial downstream value is lost as a result of current copyright law in Australia. The downstream uses of copyright works involved include: text and data mining, digital analytics, cloud computing, transformative, educational and informational uses involving existing copyright works. Assertion 2: that this downstream value is lost due to current copyright law in Australia reducing cumulative innovation, and that Fair Use can remedy that. Assertion 3: that creativity is booming in the digital world and that introducing Fair Use in Australia will benefit creative output. Assertion 4: that transaction costs would be lower under a Fair Use system. As we shall discuss this presents an unbalanced picture of the likely impacts of adopting Fair Use in Australia, the nature and extent of the real current market problems, the scope for market solutions to the alleged problems, the nature and role of copyright and of transaction costs. The paper is indeed based on a fundamental misinterpretation of copyright. It fails to adequately acknowledge that copyright merely requires the creator's consent, and provides the basis for a market in creative works and does not prevent use. The paper then does not adequately explain why any copyright market might be expected to fail in the manner alleged, nor why the proposed legal intervention (fair use) might be expected to improve outcomes. The paper also doesn’t present any real new evidence, particularly drawing on the so-called “big data” that must now be available on digital copyright market transactions. A more useful contribution would further have examined the practical limitations of licensing markets, and the extent to which these might be addressed by new digital technologies, such as artificial intelligence and distributed ledger technology in order to enhance creative market growth, investment and innovation.