week 10 legal ethical considerations

Copyright, Intellectual Property and other Legal and Ethical

matters

Writing & Editing for Digital Media, Week 10

Intellectual Property

• The idea that ideas can be owned• World Intellectual Property Organization• IP Australia• Australian Copyright Council• What’s covered?

o Copyrighto Patentso Trademarkso Designo Other stuff: circuit layouts, plants, trade secrets

All rights reserved?

• Economic rights:o The right to reproduceo The right to deny reproductiono The right to economic benefit — sales, royaltieso The right to loan — libraries’ lending rights

• Moral rights:o The right of attribution — to have the work

recognised as their worko The right of integrity — to prevent distortion,

destruction or misrepresentation

Copyright timeline

• 1886: Berne Convention• 1952: Universal Copyright Convention adopted at

Geneva• 1968: Australian simplified Copyright Act• 1989: US finally becomes part of Berne Convention• 1993: European Union directive harmonising

copyright between UCC and Berne• 1998: US “Sonny Bono” copyright extension• 2004: Australian-US Fair Trade Agreement• 2006: Copyright Amendment Act• 2007: Australian moral rights amendment - part

IV, Copyright Act

The current situation

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

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

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

• Up to date fair dealing information

Changes due to Australia-US Free Trade Agreement

2004• New rights, both economic and moral for performers

in sound recordings; • Extension of the term of protection for most copyright

material by 20 years; • Implementation of a scheme for limitation of

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

• Wider criminal provisions for copyright infringement; • Broader protection for electronic rights management; • Protection against a wider range of unauthorised

reproductionsSource: IP Australia

Currently before the courts: iiNet

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

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

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

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

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

Currently before the courts: Fairfax v Reed

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

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

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

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

Problems with copyright

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

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

• Corporations mostly concerned with economic rights not moral rights

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

• Automatic application is a blanket solution• Creativity shackled, reduces free critique

(Lawrence Lessig)• Artificially imposes scarcity in order to benefit

corporations (John Gilmore, EFF)

Online threats to intellectual property

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

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

• Redistribution, commercial appropriation• The challenges of ‘fan culture’ — embracing

your audience

The work of art in the age of digital reproduction

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

• Even easier to copy and manipulate• Boundaries of original and copy are blurred

o Which is the ‘original’ Star Wars now?• The copy is technically identical to the

original as they’re both just bits• Is textual poaching the logical outcome of

postmodernist approaches to meaning?

Alternative solutions

• Copyleft• The open source movement• General Public License (GPL)

But what’s to stop commercial exploitation?

• Creative Commons

Corporate solutions

• Copyright licenses with individuals• Copyright transfer required before payment• Copyright of work by staff belongs to

corporation• Syndication: bulk licenses of agency works• Next step: embed copyright licenses

electronically in digital works to prevent copying (digital rights management or DRM)

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

Fair use for students• Because of special provisions in the

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

The "10% rule" for reproducing text in electronic formo 10% of the number of words; oro one chapter, if the work is divided into chapters.

• Download the Fact Sheet for students and researchers

• Download Information Sheet G11 for information on copyright and photographs

5 factors affecting fair use:1. the purpose and character of the dealing (for example, copying in

connection with a course is more likely to be fair than copying for research which may be used commercially);

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

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

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

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

More information

• The Australian Copyright Councilhttp://www.copyright.org.au• The Writers Guide to making a digital living 

http://www.australiacouncil.gov.au/writersguide

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

• Copyfight bloghttp://copyfight.corante.com/