scholarly journals An Elegy for Greg Ham: Copyright Law, the Kookaburra Case, and Remix Culture

2013 ◽  
Vol 17 (2) ◽  
pp. 385 ◽  
Author(s):  
Matthew Rimmer
Keyword(s):  
Critical Evaluation ◽  
Copyright Infringement ◽  
Digital Economy ◽  
Copyright Law ◽  
Fair Use ◽  
Law Reform ◽  
Digital Sampling ◽  
Musical Works ◽  
Copyright Ownership

The Kookaburra case was a tragic and controversial copyright dispute, highlighting the need for copyright law reform by the Australian Parliament. In this case, a copyright action was brought by Larrikin Records against Men at Work, alleging copyright infringement by Down Under of the Kookaburra song composed by Marion Sinclair. The dispute raised a host of doctrinal matters. There was disquiet over the length of the copyright term. There were fierce contests as to the copyright ownership of the Kookaburra song. The litigation raised questions about copyright infringement and substantiality — particularly in relation to musical works. The case highlighted frailties in Australia’s regime of copyright exceptions. The litigation should spur the Australian Law Reform Commission to make recommendations for law reform in its inquiry, Copyright and the Digital Economy. This paper provides a critical evaluation of the options of a defence for transformative use; a defence for fair use; and statutory licensing. The paper also examines the question of appropriate remedies in respect of copyright infringement. The conclusion considers the implications of the Kookaburra case for other forms of musical works — including digital sampling, mash-ups, and creative remixes. It finishes with an elegy for Greg Ham — paying tribute to the multi-instrumentalist for Men at Work.

scholarly journals Copyright’s Digital/Analog Divide

2016 ◽  
Author(s):  
Matthew Sag
Keyword(s):  
Copyright Infringement ◽  
Copyright Law ◽  
Fair Use ◽  
Cultural Participation ◽  
Private Interests ◽  
Private Control ◽  
Media Environments ◽  
The Many ◽  
Copyright Enforcement ◽  
Made In

This Article shows how the substantive balance of copyright law has beenovershadowed online by the system of intermediary safe harbors enacted aspart of the Digital Millennium Copyright Act (“DMCA”) in 1998. The Internetsafe harbors and the system of notice-and-takedown fundamentally changedthe incentives of platforms, users, and rightsholders in relation to claimsof copyright infringement. These different incentives interact to yield afunctional balance of copyright online that diverges markedly from theexperience of copyright law in traditional media environments. This articlealso explores a second divergence: the DMCA’s safe harbor system is beingsuperseded by private agreements between rightsholders and large commercialInternet platforms made in the shadow of those safe harbors. Theseagreements relate to automatic copyright filtering systems, such asYouTube’s Content ID, that not only return platforms to their gatekeepingrole, but encode that role in algorithms and software.The normative implications of these developments are contestable. Fair useand other axioms of copyright law still nominally apply online; but inpractice, the safe harbors and private agreements made in the shadow ofthose safe harbors are now far more important determinants of onlinebehavior than whether that conduct is, or is not, substantively incompliance with copyright law. The diminished relevance of substantivecopyright law to online expression has benefits and costs that appearfundamentally incommensurable. Compared to the offline world, onlineplatforms are typically more permissive of infringement, and more open tonew and unexpected speech and new forms of cultural participation. However,speech on these platforms is also more vulnerable to over-reaching claimsby rightsholders. There is no easy metric for comparing the value ofnon-infringing expression enabled by the safe harbors to that which hasbeen unjustifiably suppressed by misuse of the notice-and-takedown system.Likewise, the harm that copyright infringement does to rightsholders is noteasy to calculate, nor is it easy to weigh against the many benefits of thesafe harbors.DMCA-plus agreements raise additional considerations. Automatic copyrightenforcement systems have obvious advantages for both platforms andrightsholders; they may also allow platforms to be more hospitable tocertain types of user content. However, automated enforcement systems mayalso place an undue burden on fair use and other forms of non-infringingspeech. The design of copyright enforcement robots encodes a series ofpolicy choices made by platforms and rightsholders and, as a result,subjects online speech and cultural participation to a new layer of privateordering and private control. In the future, private interests, not publicpolicy will determine the conditions under which users get to participatein online platforms that adopt these systems. In a world wherecommunication and expression is policed by copyright robots, thesubstantive content of copyright law matters only to the extent that thosewith power decide that it should matter.Keywords: Copyright, DMCA, Infringement, Internet, Safe harbors,Enforcement, Fair use, Automation, Algorithms, Robots.

The Law of Musical Borrowing

2021 ◽  
Author(s):  
Michael W. Carroll
Keyword(s):  
Digital Technology ◽  
Copyright Infringement ◽  
Copyright Law ◽  
Fair Use ◽  
User Generated Content ◽  
Musical Borrowing ◽  
Online Platforms ◽  
The Law ◽  
Musical Creativity ◽  
Secondary Liability

Creating music often involves borrowing from preexisting sources. Copyright law applies to a range of common borrowing practices including sampling, remixing, linking, and creating user-generated content for online platforms. When analyzing musical borrowing, it is important to first establish what aspects of musical creativity copyright does and does not protect. A series of cases illustrate when the law identifies borrowing of unprotected aspects of prior works, such as musical ideas, common melodic sequences, and chord progressions. Other cases illustrate how the law also permits some borrowing of protected expression if the borrowing is fair use. Digital technology facilitates musical borrowing, and certain online practices such as posting hyperlinks to other musical sources are permitted unless the person posting the links knows that the link leads to infringing material, intends to encourage others to infringe or meets other requirements for secondary liability for copyright infringement.

scholarly journals The Sampling and Remix Dilemma: What is the Role of Moral Rights in the Encouragement and Regulation of Derivative Creativity?

2013 ◽  
Vol 17 (2) ◽  
pp. 335 ◽  
Author(s):  
Elizabeth Adeney
Keyword(s):  
Community Support ◽  
Copyright Infringement ◽  
Copyright Law ◽  
Moral Rights ◽  
Law Reform ◽  
Economic Rights ◽  
Copyright Material

The borrowing and rearrangement of musical content, especially in the digital context, raises difficult questions for copyright law. There is significant community support for a loosening of the restrictions on the derivative (and particularly creative) use of copyright material. Law reform is called for. This paper discusses the possible introduction of a new exception to copyright infringement but notes that in the drafting of any such exception not only the economic rights but also the moral rights of the originating author need to be taken into account.

Consequences of the Nature of the Parody Exception

2019 ◽  
pp. 70-90
Author(s):  
Sabine Jacques
Keyword(s):  
Freedom Of Expression ◽  
Copyright Infringement ◽  
Copyright Law ◽  
Fair Use ◽  
Fair Dealing ◽  
Freedom Of Contract ◽  
Strict Interpretation ◽  
Legal Nature ◽  
The Right ◽  
And Function

This chapter examines the consequences of the nature and function of the parody exception in copyright law. It first explains the ‘mechanics’ behind the parody exception, particularly as a defence to copyright infringement, before discussing the legal nature of copyright exceptions and in relation to copyright and contract laws. It then addresses the question of whether copyright exceptions, especially the parody exception, amount to rights or are more akin to interests. It also considers the principle of strict interpretation as a rule of interpretation for the parody exception and reviews recent decisions that illustrate whether the user rights approach resulted in any noticeably broader interpretation of copyright exceptions. Finally, it explores the principles underpinning freedom of contract and how judges, notwithstanding the parody exception’s procedural label as a defence, assess fair use, fair dealing, or rules of the genre in light of the right to freedom of expression.

scholarly journals Opinion: CASE Act will Harm Researchers and Freedom of Inquiry

2021 ◽  
Vol 5 (1) ◽  
Author(s):  
Sara Benson ◽  
Timothy Vollmer
Keyword(s):  
Federal Court ◽  
Copyright Infringement ◽  
Copyright Law ◽  
Fair Use ◽  
Federal Spending ◽  
Court System ◽  
Teaching Activities ◽  
Research And Teaching ◽  
Small Claims ◽  
Bureaucratic Structure

The Copyright Alternative in Small-Claims Enforcement Act of 2020 (CASE Act) was swept into law during the final days of 2020 as a part of the 5,500 page federal spending bill. In theory, the CASE Act aims to provide a venue for individual creators (such as photographers, graphic artists, musicians) to address smaller copyright infringement claims without spending the time and money required to pursue a copyright infringement lawsuit in Federal court. In reality, however, this additional bureaucratic structure created outside of the traditional court system is fraught with problems that will mostly incentivize large, well-resourced rightsholders or overly litigious copyright owners to take advantage of the system. At the same time, it will confuse and harm innocuous users of content, who may not understand the complexities of copyright law, and who do not know whether or how to respond to a notice of infringement via this small claims process. From our perspective, it will chill users who rely on crucial statutory exceptions to copyright, such as fair use, in their research and teaching activities.

The Grey Album: Copyright Law and Digital Sampling

2005 ◽  
Vol 114 (1) ◽  
pp. 40-53 ◽  
Author(s):  
Matthew Rimmer
Keyword(s):  
Copyright Law ◽  
Fair Use ◽  
Moral Rights ◽  
Digital Sampling

In the field of digital sampling, disk jockeys have shown a recent enthusiasm for ‘mash-ups’ — new compositions created by combining the rhythm tracks of one song and the vocal track of another. Most famously of all, DJ Danger Mouse remixed the vocals from Jay-Z's The Black Album and the Beatles' White Album and called his creation The Grey Album. The Grey Album poses a number of difficult issues regarding copyright law and digital sampling. Does such a ‘mash-up’ go beyond the de minimis use of a copyright work? Is The Grey Album protected by the defence of fair use under copyright law because it provides a transformative use of copyright works? Can such remixes by compulsorily licensed? Does a ‘mash-up’ raise issues concerning the moral rights of attribution and integrity, which are recognised in Europe and Australia?

scholarly journals Copyright Review: Issues for Cultural Practice

2013 ◽  
Vol 17 (2) ◽  
pp. 309
Author(s):  
Jill McKeough
Keyword(s):  
Political Economy ◽  
Attorney General ◽  
Cultural Practice ◽  
Digital Economy ◽  
Copyright Law ◽  
Law Reform ◽  
Cultural Impact ◽  
Copyright Material

The Australian Law Reform Commission (ALRC) has been asked by the Attorney-General to inquire into and report on current and further desirable uses of copyright material in the context of the digital economy. In this paper the focus is on the scope of the terms of reference of the ALRC and the importance of copyright in a modern digitally orientated world. The paper also analyses other important initiatives and reports in this area, focusing on the changing ‘political economy’ and cultural impact on copyright issues and, in particular the challenges for copyright law.

Digital Repatriation

2018 ◽  
pp. 530-552
Author(s):  
Alex Perullo
Keyword(s):  
Country Of Origin ◽  
Indigenous Communities ◽  
Copyright Law ◽  
Fair Use ◽  
Digital Collections ◽  
Limited Access ◽  
Local Space ◽  
The Creation

This essay makes two points about digital collections. The first recognizes problems that emerge as archives present indigenous content online. In uploading indigenous songs, speeches, and documents, an archive allows that material to move from a local space with limited access to an international repository with many points of access. This chapter examines conflicts that can occur with this action, including those involving copyright law, fair use, and ethics. A second point of this chapter revolves around technology and repatriation. If repatriation means the return of material to a country of origin, then online archives never fully commit to this task. The material typically remains preserved on servers and in its original forms away from indigenous communities. Despite these ethical, legal, and technological concerns, archives should encourage the creation of digital collections as part of repatriation given the desire by many indigenous communities to preserve and promote their traditions.

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