The Role of Copyright in a Time of Artificial Creativity: The Value of Interdisciplinarity in Copyright Law

The Supreme Court’s recent decision in Andy Warhol Foundation for Visual Arts, Inc. v. Goldsmith is a watershed moment in the story of copyright jurisprudence. At its broadest, the decision articulates a unified vision—one that had been dormant in the lower court fair use jurisprudence—about the role of copyright and the manner in which to make sense of its effort to balance exclusivity with its myriad limitations. This Essay focuses on how the Court reconciled the working of the statute’s derivative work right with the breadth and reach of the “transformative use” version of the fair use doctrine. The core of the Court’s reconciliation centers around three ideas. The first is the need for an independent justification for a use to even qualify for fair use. Transformation on its own does not provide such a justification, which must be instead identified independently. Related is the second idea, that the secondary use must reveal a distinct purpose. Unlike the justification element, this step is comparative and heavily contextual. And the third element is the balance between transformativeness and commerciality, which the legislative text makes clear and Campbell had gone to extreme lengths to reinforce.

Podcasts have emerged as an increasingly popular form of creative expression over the past decade, and are largely released for free. Their distribution and funding model are reliant on digital technologies, but what role does copyright play? Prior to the digital age, the reproduction of works implied physical reproduction, which imposes a natural scarcity. The technological default for digital works on the other hand is abundance. In this context, some creators and publishers have embraced new business models which do not rely on excluding non-paying users, so-called ‘abundance models’. Many podcast creators are independent from anything like traditional publishers and so have to find their own funding. For independent creators, like podcasters, releasing free work through intermediary platforms, the role of copyright in realizing their business models is far from clear and worth investigating. This article discusses how podcast creators monetize their work through crowdfunding. The specifics of this business model are laid out with support from data gathered through a content analysis study of podcasts which fundraise through the crowdfunding platform Patreon. The concept of an ‘abundance model’ is only an imperfect fit for crowdfunded podcasts, but nevertheless provides a useful frame for the discussion of existing business models.

ended in December 2018.The IPA represents all publishers, so not only STM (Science, Technical & Medical) publishers which typically attend APE conferences.The IPA also represent trade publishers, including literary houses, as well as educational publishers.My remarks below should be seen in that light: reflecting the broader publishing industry.APE 2019 is again hosted here in Berlin, a city which is staking its claim to be one of Europe's top tech hubs.This is appropriate as technology has always fundamentally changed our industry.Whether it has been the printing press, the birth of the internet, or newer challenges of big data and artificial intelligence.Our industry, the publishing industry, has been able to respond, change and adapt.But we are no longer the only ones in the room.Big tech companies are increasingly becoming part of our scholarly communication chain.We, as publishers, have to a better job of articulating our value.I officially ended my term as the President of the International Publishers Association, the IPA, at the end of 2018.The IPA is the world's largest federation of national publishers' associations.Its membership comprises of 81 organisations from 69 countries.Through its members, IPA represents thousands of individual publishers around the world who service markets containing more than 5.6 billion people.It was an honour to serve as its President and it gave me a few key insights into the value of our broader industry that are relevant to this audience and that I wish to share with you today.These insights are centered around 1. copyright, 2.

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

More Unfair Claims About Fair Use in Australia

Abstract Does copyright foster the development of creative industries in developing countries? Drawing on case studies from Nigeria, India, and China, this Article sheds some light on these questions. It argues that copyright offers distinct advantages over alternative models. Moreover, copyright law need not function as a monolithic force. Copyright norms can govern some aspects of industry operations, while remaining largely absent in other domains. However, as industries develop, the benefits of copyright become more salient and the logic of copyright formalization exerts a gravitational pull.

Editorial
 The first 11 articles in the first issue of 2014 deal with global legal topics ranging from outer space to domestic South African matters and legal challenges in other African countries, such as Uganda, Nigeria and Zimbabwe. Anél Ferreira-Snyman discusses legal challenges relating to the commercial use of outer space, with specific reference to space tourism. She points out that the current legal framework is outdated and no longer deals adequately with the rapidly developing space tourism industry. Further away from the moon, although it deals with creations of the mind and is just as mysterious for the average person, is the contribution of André van der Walt and Richard Shay, which analyses the South African Constitutional Court's treatment of intellectual property. They focus on the methodology that the Court has formulated to assess if state interference complies with constitutional provisions to determine if state intervention into property interests has been legitimate. The third contribution, by Joel Baloyi, also deals with a creation of the mind, namely copyright. He attempts through a comparative analysis to demystify the role of copyright as a tool for economic development in Africa and criticises the stifling effect the transferability principle has on the effectiveness of copyright in certain African countries. Bradley Slade discusses the differences between the concepts "public purpose" and "public interest" in the context of third party transfers as a result of property being expropriated for the realisation of public purposes in the fourth contribution. The influence of the Constitution of South Africa, 1996 on organ transplants is the topic of the fifth contribution, by Debbie Labuschagne and Pieter Carstens. They come to the conclusion that the South African government has failed to provide an effective legal framework to relieve the shortage of human organs available for transplantation. Sixthly, Lize Mills discusses recently proposed regulations prohibiting the advertising and promotion of infant formulae and other products marketed as being suitable for infants or young children with the purpose of promoting breast-feeding. The last five articles move further afield and deal with legal issues elsewhere in Africa. Dana van der Merwe gives a comparative overview of the relationship between digital information in certain legal fields in South Africa and Uganda. Nazreen Shaik-Premanov examines Zimbabwe's Marange conflict diamond situation and Lovemore Chiduza analyses the Zimbabwean constitutional provisions on judicial independence. Peter Obutte scrutinises ICT laws in Nigeria and the last two authors, Serges Kamga and Ogechukwu Ajoku, reflect on addressing human rights violations by extractive industries in both South Africa and Nigeria.
 Four notes are also published in this issue. The first one is an overview article by Christa Rautenbach dealing with the modern-day impact of cultural and religious diversity as reflected in the book on "Managing Family Justice in Diverse Societies". The other four notes are case discussions. The first one is a discussion of the case of Government of the Republic of Zimbabwe v Louis Karel Fick by Erika de Wet. The second one is a discussion of the case of Le Sueur v eThekwini Municipality by Warren Freedman, and the last one is a discussion of the case of Apollo Tyres v South Africa (Pty) Ltd v CCMA by Shamier Ebrahim.
 

In the English common law tradition copyright is seen as being in the nature of a property right and thus alienable and transmissible from one person to the other. In contrast, the droit d’auteur system of Continental Europe sees copyright as being an author’s right, which attaches to the personality of the author. However, even in this system a distinction can be made between the monist system (as applies in Germany), which treats both moral rights and economic rights as being inseparable and thus equally inalienable, and the dualist system applicable in France, which distinguishes between moral and economic rights, with the former considered inalienable, while the latter is freely alienable. In this way French law embodies the transferability principle in respect of economic rights, in the same way as the Anglo-American system does. Many countries in Sub-Saharan Africa have inherited copyright laws from their erstwhile colonial masters (whether England or France), resulting in the laws of these countries also embodying the transferability principle. It is argued, however, that the transferability principle has had the inadvertent effect of stifling copyright-based entrepreneurship, and thus economic development in these countries. Because of the conditions of impoverishment prevailing in these countries, authors find that they do not have the material resources to economically exploit their copyright works. They thus have no option but to assign their copyrights to others, mainly foreign entities, resulting in an endless cycle where they can never act entrepreneurially in respect of their copyrights. The paper seeks to explore this phenomenon and make proposals of possible solutions. 

Access and Control. The Political Economy of Online Copyright Enforcement in the European Union

Личные неимущественные права часто воспринимаются лишь как средство защиты личных интересов автора, и в этом отношении они часто не привлекают интереса исследователей. В действительности в современном информационном обществе личные неимущественные права начинаютиграть много важных ролей. Базовой функцией личных неимущественных прав является идентификация лица в качестве создателя объекта. Такое признание играет важную роль для автора,определяя его общественный статус, возможность извлечения дохода от своей деятельности и т.д. С другой стороны, идентификация автора необходима обществу для обеспечения нормального использования произведения, так как любой экономический оборот требует идентификации участвующих в нем объектов. На этой базовой функции основано несколько других функций, в частности, стимулирование творческой активности авторов, обеспечение установления характеристик произведения, предупреждение несанкционированного изменения произведения, сохранение культурного наследия общества. В то же время реализация этих функций в каждой отдельной стране во многом зависит от традиций и особенностей развития законодательства. Например, если в континентальной системе права была реализована «романтическая» концепция авторского права, основанная на рассмотрении автора как вдохновленного свыше творца, то в англосаксонской системе авторское право являлось прежде всего средством организации экономического использования произведений. В статье рассматриваются функции личных неимущественных прав, их роль в современном обществе, особенности проявления в разных странах. Личные неимущественные права становятся гарантией того, что новые способы использования произведений не будут осуществляться в форме, приводящей к полному отрыву произведения от автора, когда он не только не может влиять на условия использования произведения, но и контролировать корректное указание названия произведения, собственного имени, искажение произведения и т.д. В современномобществе возрастает и роль государственных органов, которые должны защищать произведения, перешедшие в общественное достояние, а также обеспечивать возможность согласования использования произведений, автор или правообладатель которых не известен. К сожалению, на доктринальном уровне в данный момент отсутствует четкое понимание изменившейся роли авторского права в целом и места и назначения личных неимущественных прав в рамках авторско-правового регулирования в частности.

Purpose– The purpose of this paper is to explore the instrumental role that copyright and trademark enforcement strength plays in stimulating licensing flows in 21 countries.Design/methodology/approach– In so doing, panel data methodology serves as the empirical platform upon which the investigation between the trademark and copyright enforcement strength levels of 21 countries and the choice between unaffiliated and affiliated licensing of US firms for the period 1998-2011 is conducted.Findings– The evidence suggests that both copyright and trademark enforcement strength have a highly significant effect on licensing and, more specifically, that stronger levels of enforcement stimulate higher levels of unaffiliated licensing.Originality/value– The authors use the two longitudinal indices of copyright and trademark enforcement strength which capture the effectiveness and efficiency with which copyrights and trademarks are enforced in 21 countries.

Although there is a large body of scholarly literature on musical copyright, very little of this work explores in a sustained and direct way the role of copyright in regulating musical memory. This paper conceptualizes sound recording as a mnemonic technology and analyzes the manner in which copyright law attempts to manage the impact of this technology on legal concepts of musical memory and authorial subjectivity. The paper analyzes the case law on “cryptomnesia” or unconscious plagiarism in the United States and Canada wherein defendants claimed not to have access to the original work and therefore could not have copied it. These contested similarities highlight the dispersion of memory and creativity across a heterogeneous network that includes composers, musicians, and producers but also institutions and machines, and leads to the present difficulty of recentering the authorial subject in legal discourses and practices. In this way, late twentieth century legal disputes over unconscious plagiarism anticipate contemporary anxieties about the entanglement of creative and consumer subjectivities with digital techniques in recent litigation campaigns against mash-up remixing, peer-to-peer file sharing, and other popular practices of online music reproduction. Then as now, copyright acts as a site for disciplining and normalising certain modes of listening to and remembering sound recordings which in turn help smooth over tensions in the field of capitalist music (re)production.

Article take the issue of the adequacy of the formal institutions of intellectual property rights in an era of global Internet society. Research area for this subject are information goods such as films and TV shows. In the center of the discussions is the problem of adapting formal institutional arrangements for informal standards of information goods copying via the Internet. The article highlights the problem of inconsistencies social norms with legal norms and the difficulties of implementing the formal institutions in an environment that has no physical barriers. Aim of the article is to present the scale of unauthorized copying of selected information goods and to consider the role of copyright in this phenomenon. This aim is connected with the hypothesis that the institution of copyright is not adapted to global communication taking place via the Internet.

The role of copyright or related rights collecting societies in legal solutions regarding orphan works. The paper analyses in what way collective management organizations can be useful to solve the problem of so-called orphan works. The issue of orphan works (works whose authors or other rightholders are not known or cannot be located or contacted to obtain copyright permissions) is today one of the most important elements of the debate on the future of copyright law. As the number of orphan works keeps growing it becomes a serious problem which requires to be resolved by creating an appropriate legal framework. It seems that the best way of addressing the problem would be to entrust the management of orphan works with specialized entities i. e. copyright or related rights collecting societies. Namely it is worth to consider the extended collective licensing system that proved to be effective in the Nordic countries. However, the Directive 2012/28/EU on certain permitted uses of orphan works which sets out common rules on the use of orphan works is not based of that system. The absence of mutual recognition implies that an extended collective license is valid only in the national territory in which the statutory presumption applies. It would seem that at least diligent search should be entrusted to copyright or related rights collecting societies. They have access to databases on the works, objects of related rights and rightholders and they interact with similar organizations in other Member States. In the Polish copyright law provisions referring to the collective management of copyright do not fulfill its function. Professional, strong, effective and representative copyright collecting societies with well-defined area of activity are needed to solve the problem of orphan works. This requires amendment to the Copyright Law.

See video of the presentation.Access is only half of the Open Access story. A vital component is what you can do with the content that you have access to. Can you use it for teaching and learning in the classroom? Text and data-mine? Create anthologies and reading lists? Archive and preserve the material for future generations? The answers to these questions depend, in part, on the copyright status of the material and the licensing terms under which the material is made available. This paper will investigate the importance of licenses and focus on the 'open' of Open Access.

This article reports the findings of a study of the impact of copyright on what U.S. archival repositories select for digitization and the extent to which they seek authorization from rights holders. Based on the website content of 96 repositories, 66 survey responses, and 18 interviews, the findings reveal a wide range of practice. While American repositories are generally conservative in that they digitize holdings that present no copyright complications, there is evidence of a shift from an item-level copyright analysis approach to a bolder risk-assessment approach that may better achieve the archival mission to make holdings available for use. The article identifies tools to support a risk-assessment approach and suggests areas of further research to identify best practices.

Since 1948, the Government Press Office of Israel has been collecting and producing an extensive archive of photographs representing the birth and development of the Israeli nation state. Digitized and published online, this archive functions as a visual memorial of Israel, an example of what Jan Assman calls “bonding memory”, a form of memory that connects individuals to a political body, and which acts to frame a collective national identity. In 2011, the copyright terms of this archive were changed to encourage the circulation and reuse of images. This decision echoes a broader trend towards the “opening” of large data sets on the Web (“open data”, “open archives”, “open government”). At the same time, the ongoing Arab-Israeli conflict and the existence of contesting narratives of the creation of Israel threaten the integrity of the official national memory. In this context, what are the conditions and limits of “opening” the national photographic archive? Examining contemporary ideology of the “open” in new media discourses and the free culture movement, this paper investigates the conditions of circulation and appropriation of memory and the role of copyright as a potential tool to control freedom of expression.

Since 1948, the Government Press Office of Israel has been collecting and producing an extensive archive of photographs representing the birth and development of the Israeli nation state. Digitized and published online, this archive functions as a visual memorial of Israel, an example of what Jan Assman calls “bonding memory”, a form of memory that connects individuals to a political body, and which acts to frame a collective national identity. In 2011, the copyright terms of this archive were changed to encourage the circulation and reuse of images. This decision echoes a broader trend towards the “opening” of large data sets on the Web (“open data”, “open archives”, “open government”). At the same time, the ongoing Arab-Israeli conflict and the existence of contesting narratives of the creation of Israel threaten the integrity of the official national memory. In this context, what are the conditions and limits of “opening” the national photographic archive? Examining contemporary ideology of the “open” in new media discourses and the free culture movement, this paper investigates the conditions of circulation and appropriation of memory and the role of copyright as a potential tool to control freedom of expression.

Copyright and Digital Art: Through the Looking Glass