Role Of Copyright Research Articles

Going “Beyond” Mere Transformation: Warhol and Reconciliation of the Derivative Work Right and Fair Use

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.

Copyright, podcasts and crowdfunding: an ‘abundance model’ for an emerging medium?

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.

The value of publishing and the role of copyright, freedom to publish, and diversity & inclusion1

The value of publishing and the role of copyright, freedom to publish, and diversity & inclusion1

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.

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.

The Role of Copyright in Creative Industry Development

AbstractDoes 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

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.
 

Demystifying the Role of Copyright as a Tool for Economic Development in Africa: Tackling the Harsh Effects of the Transferability Principle in Copyright Law

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. 

Functions of Moral Rights in the Modern Information Society

Moral rights are often analyzed in the context of protection of author’s personal interests only and, asresult, this theme attracts attention of researchers quite rarely. However, in the modern informationsociety moral rights perform number of important roles. The basic moral right function is identificationof a person as a creator of certain work. This acknowledgement is very important for an author,because it influence on his social status, profit, etc. On the other hand, the author’s identification isnecessary for normal use of a work, because any economic turnover requires identification of objectinvolved in it. On this basic function, some additional functions are based, in particular, stimulationcreative activity, identifying of characteristics of the work, prevention of unauthorized changesof the work, protection of culture heritage. At the same time, implementation of these functions indifferent countries depends strongly on traditions and peculiarities of the legislation developmentin this country. For example, in continental system of law “romantic” conception of copyright wasimplemented, which was based on relation to an author as a creator “inspired by the heaven”, whilein anglo-saxon system of law copyright was an instrument for organization of economic exploitationof works. In the article functions of moral rights and their place in the modern information society,as well as peculiarities of implementation in different countries, are discussed. Moral rights becamea guaranty that new ways of use of works will not be performed in the form that will break the authorand his work completely where he is not able to influence to conditions of use of his work and tocontrol correct identification of the title of the work, his name, prevent distortions of his work, etc. Inthe modern society, the role of state authorities increases as well, they should protect works whichare in the public domain, provide possibility of use of “orphan works”, etc. Regrettably, currently inthe legal doctrine there is no clear understanding of new role of copyright and place and role of moralrights, in particular.

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

This paper presents the main results of this author’s doctoral research on recent policy initiatives dealing with the online enforcement of copyright in the European Union. Strong online copyright enforcement is subject to intense policy debates in the European Union. Of the five policy initiatives analyzed, two pass into law (2009 French and 2010 UK graduated response laws), two result in stalemates (2008 Creative Content Online and 2010 E-Commerce Directive consultations) and one is rejected (2011 Anti-Counterfeiting Trade Agreement). At the level of the European Union, online copyright enforcement policies hardly change. At the level of certain member states however, strong enforcement policies are adopted. This paper claims that the outcome of the policy initiatives is determined by an intricate interplay of ideas, discourses, interests and institutions. Policy stakeholders compete to see their ideas and interests adopted into policy. This study argues that their views on creativity and knowledge and stances on the role of copyright and the Internet in society determine their ideas and interests on online copyright enforcement. Analysis of the cases also reveals that the meager outcome of the online copyright enforcement initiatives at the level of the European Union is due to the lack of common interests between the media and Internet & technology industries. Currently, the Internet & technology industries have little incentive to proactively enforce copyright online. At the same time, the cases indicate that civil society actors succeed in giving pushback on online copyright enforcement policies. In the Anti-Counterfeiting Trade Agreement, they even reverse European Union plans. Finally, stakeholders cunningly choose institutional rules and settings that favor their views. In the online copyright enforcement debate, copyright is often portrayed as opposed to intermediary liability rules and fundamental rights. This picture is painted too starkly black and white, but it is true that the role of Internet intermediaries in intervening in their networks is at the crux of the debate today. This study raises concern about the use of monitoring, blocking and filtering technology to regulate the availability of creative content.

International licensing revisited: the role of copyright and trademark enforcement strength

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.

Copying machines

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.

Rola organizacji zbiorowego zarządzania prawami autorskimi w regulacjach prawnych dotyczących utworów osieroconych

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.

Globalny wymiar nieautoryzowanego kopiowania dóbr informacyjnych

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.

What's 'Open' about Open Access? The Vital Role of Copyright and Licenses

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.

The Role of Copyright in Selection for Digitization

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.

Framing Openness. The Digital Circulation of Israel's National Photographic Memory

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.

Framing Openness. The Digital Circulation of Israel's National Photographic Memory

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

Copyright promotes creativity. Copyright hinders creativity. These statements reflect the contested nature of copyright, today more than ever before. The last twenty years have seen rapid advancements in digital technologies and information and communication systems. These advancements have had profound effects on creative activities: the process of production, dissemination, exploitation and consumption of creative output has changed; opportunities for novel ways and forms of creation, representation and manipulation of information have arisen; and, the attitudes and behaviour of creators and consumers of creative output and a host of intermediary participants in the process have transformed. As a result, copyright law has faced considerable and persistent practical challenges in adapting its contours to the digital environment. More importantly, the role of copyright, as a framework for regulating creative activities, has also come under scrutiny. What then is the role of copyright law in the everyday context of new and emerging creative activities -- that are borne out of the very copying and distribution technologies that have challenged copyright? How do the creative practitioners involved in such activities relate to copyright law? This chapter explores the interaction between copyright and the everyday life of artists in the digital environment. It focuses on the role of copyright in the every day context of a specific creative activity: digital art practice. It draws upon the findings from a qualitative empirical study, consisting of in-depth interviews with digital artists in the UK and Ireland, to peer ‘through the looking glass’ at the perspectives and practices of digital artists and finds ‘a messy wonderland of copyright in action’. A wonderland where: artists challenge and resist the law’s default positions and policy’s dominant presumptions, artists are informed and influenced by multiple elements and contextual factors in their process of meaning-making and decision making about copyright, and, artists face moral dilemmas and are pulled in different directions with respect to their perspectives and decisions regarding copyright.Section II of this chapter contextualizes the study and outlines the methodology employed. Section III and IV presents some of the findings from the study to demonstrate how the interviewees were challenging ownership and valuing authorship and illustrate how a variety of factors influenced the artists’ understandings around copyright. Section V provides concluding remarks.

Copyrighting Media Labor and Production

This article examines the role of copyright in production and labor relations within media institutions. Specifically, it examines China Central Television’s (CCTV’s) copyright reform and argues that developmental strategies and market conditions may diminish or promote copyright’s role in commercial media. In CCTV’s case, two factors contributed to the insignificance of copyright in the 1990s, namely, the reliance on advertising as the major revenue source and CCTV’s centralized power in the television sector. Yet the circumstances changed in the 2000s with the slowdown of advertising growth, which brought copyright to the forefront of CCTV’s market reform. During the process, the dominating role of CCTV vis-à-vis non-unionized media workers resulted in copyright reform that was slanted toward corporate interests. The implications of the path of CCTV’s copyright reform are highly relevant for understanding media and copyright growth in contemporary China and in other media systems undergoing contested processes of marketization.