History and Development of Copyright

2014 ◽  
pp. 10-32
Keyword(s):  
Case Law ◽  
Copyright Law ◽  
Moral Rights

This chapter deals firstly with the history and development of copyright law internationally and secondly with Australian copyright legislation and legislative objectives. The discussion considers the meaning of copyright and, thereafter, studies the development of the copyright framework in Australia. Recent and current copyright issues, such as the parallel importing debate, are discussed, with reference to recent USA case law. Lastly, the chapter reflects on current moral rights provisions in Australian law and concludes with reference to the 2011 Hargreaves Report and possible future implications for Australian copyright law.

scholarly journals Moral Rights: Exploring the Myths, Meanings and Misunderstandings in Australian Copyright Law

2018 ◽  
Vol 21 (1) ◽  
pp. 71 ◽  
Author(s):  
Francina Cantatore ◽  
Jane Johnston
Keyword(s):  
Case Law ◽  
Copyright Law ◽  
Moral Rights ◽  
Recent Case ◽  
Wide Scope ◽  
Unique Character ◽  
Australian Case ◽  
Economic Nature

This article examines how moral rights are treated in Australian publishing contracts, and whether this approach is consistent with the expectations of authors, journalists and academics. Although, in theory, moral rights cannot be sold or assigned in Australia, the apparent wide scope for exceptions raises questions of whether there is any real protection afforded to creators under the Copyright Act 1968 (Cth), notably in circumstances that relate to pressure on creators to accept contractual terms in order to get published. Additionally, Australian case law reflects some uncertainty about the traditionally accepted non-economic nature of moral rights. The article examines recent case law in this field, found in Meskenas, Perez and Corby, and considers the literature associated with development of moral rights in Australia. It then presents the findings of a two-part study of moral rights in Australia; first through the results of interviews with 176 Australian authors, journalists and academics, followed by an analysis of 20 publishing contracts. It concludes that — in some, but not all, instances — a combination of the exceptions allowed under the Act and practical exigencies have diluted the unique character of authors’ moral rights and have created an environment of uncertainty.

Argumentation of the Courts and Contemporary Legal Scholarship

2017 ◽  
Author(s):  
Adrian Kuenzler
Keyword(s):  
Case Law ◽  
Copyright Law ◽  
Court Case ◽  
Supply Side ◽  
Resale Price Maintenance ◽  
Goods And Services ◽  
Supreme Court Case ◽  
Resale Price ◽  
The One ◽  
Price Maintenance

This chapter analyzes existing U.S. Supreme Court case law with respect to, on the one hand, antitrust’s minimum resale price maintenance plans, bundling and tying practices, as well as refusals to deal, and, on the other hand, trademark law’s dilution, postsale, sponsorship, and initial interest confusion doctrines, including design patent and selected areas of copyright law. It demonstrates that courts, based on the free riding hypothesis, have come to protect increasing amounts of artificial shortage of everyday consumer goods and services and corresponding incentives to innovate. Through the preservation of such values, antitrust and intellectual property laws have evolved into “dilution laws” and have focused, almost exclusively, on the refurbishment of the technological supply side of our present-day digital economies rather than also on the human demand side of “creative consumption.”

scholarly journals Copyright and Artificial Creation: Does EU Copyright Law Protect AI-Assisted Output?

2021 ◽  
Author(s):  
P. Bernt Hugenholtz ◽  
João Pedro Quintais
Keyword(s):  
Original Work ◽  
Case Law ◽  
Copyright Law ◽  
Step Test ◽  
Eu Law ◽  
Legal Analysis ◽  
Court Of Justice ◽  
Eu Copyright Law ◽  
The Eu

AbstractThis article queries whether and to what extent works produced with the aid of AI systems – AI-assisted output – are protected under EU copyright standards. We carry out a doctrinal legal analysis to scrutinise the concepts of “work”, “originality” and “creative freedom”, as well as the notion of authorship, as set forth in the EU copyright acquis and developed in the case-law of the Court of Justice. On this basis, we develop a four-step test to assess whether AI-assisted output qualifies as an original work of authorship under EU law, and how the existing rules on authorship may apply. Our conclusion is that current EU copyright rules are generally suitable and sufficiently flexible to deal with the challenges posed by AI-assisted output.

Parody and Moral Rights

2019 ◽  
pp. 167-195 ◽  
Author(s):  
Sabine Jacques
Keyword(s):  
Public Interest ◽  
Copyright Law ◽  
Moral Rights ◽  
Economic Rights ◽  
The Public ◽  
The Relationship ◽  
Personal Interests ◽  
Scope Of Protection

This chapter examines the relationship between parody and an author’s moral rights. It first traces the evolution of the concept of moral rights as a means of providing protection not only of the authors’ personal interests but also the public interest before discussing the reasons why moral rights might conflict with parodies. It considers two competing theories underlying the protection of authorial interests—the ‘monist’ theory and the ‘dualist’ theory—and their implications for the parody exception. It also explains how jurisdictions differ in the nature and scope of protection afforded to moral rights, noting that the parody exception in ‘copyright’ law does not extend to moral rights. The chapter goes on to explore the author’s paternity and integrity rights as well as their right against false attribution. It shows that, in the case of parodies, an overlap exists between the regimes applied to moral and economic rights.

Relevance of EU Copyright Law to (Future) Non-EU Member States

2019 ◽  
pp. 173-198
Author(s):  
Eleonora Rosati
Keyword(s):  
European Union ◽  
Case Law ◽  
Copyright Law ◽  
The European Union ◽  
Eu Member States ◽  
Exceptions And Limitations ◽  
Eu Copyright Law ◽  
Eu Directives ◽  
The Uk ◽  
The Impact

This chapter discusses the impact of CJEU copyright case law on national copyright regimes, even beyond the wording of EU directives as transposed into national legal systems. To this end, it focuses on the UK and, following a discussion of what immediate changes the departure from the EU and the EEA (Brexit) would have (also with regard to issues of exhaustion), it explores to what extent case law of the Court of Justice of the European Union (CJEU) has changed UK copyright law. EU decisions have had an impact in areas such as: copyright subsistence, subject matter categorization, primary/accessory liability, standard of infringement, exceptions and limitations, and enforcement (with particular regard to website blocking jurisprudence). Overall, this chapter shows the legacy of CJEU case law, and how pervasive the impact of such case law is.

scholarly journals Retelling Copyright: The Contributions of the Restatement of Copyright Law

2021 ◽  
Vol 44 (3) ◽  
Author(s):  
Jeanne C. Fromer ◽  
Jessica Silbey
Keyword(s):  
Historical Context ◽  
Case Law ◽  
Copyright Law ◽  
Professional Standards ◽  
Law Reform ◽  
Court Decisions ◽  
The Past ◽  
Dramatic Criticism ◽  
Federal Case ◽  
The Subject

The provisions at issue in the draft Restatement of Copyright Law on which ALI membership will vote at ALI’s upcoming annual meeting are central to copyright doctrine and have been the subject of numerous court decisions over the past several decades of technological and industry change: originality, fixation, categories of copyrightable subject matter, the idea-expression distinction, and authorship and ownership.  This abundance of legal activity on copyright law demonstrates the value to the profession of this project retelling copyright.  In contrast to the dramatic criticism of this Restatement project alleging political capture or illegitimate law reform, the draft’s provisions are routine and straightforward.  They will surprise no one and are almost boring in their adherence to and synthesis of the copyright statute and judicial interpretations of it. Far from being radical or ill-advised, the Restatement of Copyright Law is a reasonable and welcome addition to the work of the ALI. Part I of this Article situates the current Restatement of Copyright Law in the historical context of other ALI projects, drawing parallels in their purposes, processes, and political tensions. Part II describes the controversy over a “retelling” of copyright law as misguided insofar as it fails to account for the practice of interpretation as part of the practice of law that is constrained by professional standards.  Part III describes the analysis and exposition of the provisions of the draft portions of the Restatement of Copyright Law presented to the ALI membership for discussion and vote this year as unremarkable but also beneficial, achieving the ALI’s goals of clarification and simplification of the sprawling federal case law interpreting and applying the 1976 Copyright Act.

scholarly journals Implied Licences in Copyright Law

2021 ◽  
Author(s):  
Poorna Mysoor
Keyword(s):  
State Intervention ◽  
Case Law ◽  
Copyright Law ◽  
Copyright Owner ◽  
The Internet ◽  
Technological Environment ◽  
Competing Interests ◽  
Policy Goals ◽  
Judicial Reasoning

Implied licences can serve as a flexible and targeted mechanism to balance competing interests, including those of copyright owners and content users, especially in today’s dynamic technological environment. However, implication as a process is contentious and there are no established principles for implying copyright licences. The resulting uncertainty has led to incoherence, diminishing the value of implied licences in judicial reasoning. This book develops a methodical and transparent way of implying copyright licences, based on three sources: the consent of the copyright owner; an established custom; and state intervention to achieve policy goals. The frameworks proposed are customised separately for implying bare and contractual licences, where relevant. The book goes on to analyse the existing case law methodically in the light of these frameworks to demonstrate how the court’s reasoning can be made transparent. Underscoring the contemporary relevance of implied licences, the book tests and validates the methodology in relation to three essential and ubiquitous functions on the internet—browsing, hyperlinking, and indexing.

scholarly journals In Support of Tolerated Use: Rethinking Harms, Moral Rights and Remedies in Australian Copyright Law

2019 ◽  
Author(s):  
Kylie Pappalardo ◽  
James Meese
Keyword(s):  
Empirical Research ◽  
Thought Experiment ◽  
Copyright Law ◽  
Copyright Owner ◽  
Moral Rights ◽  
Small Scale ◽  
Cultural Norms ◽  
Injunctive Relief

In this article, we propose a thought experiment: what if copyright law could better incorporate social and cultural norms around content engagement and re-use? We draw on empirical research that explores the norms of different creative communities when they reuse the work of others, and the norms of consumers around sharing. We outline how both creators and copyright users engage almost daily in small-scale infringement that does not substitute or disrupt copyright owners’ established markets, either because the uses are highly transformative, or personal and unremarkable. We suggest that copyright could better reflect these norms if both norms and moral rights were considered as part of a remedies assessment. We propose that in cases where work has been attributed and treated with integrity, and where the use does not directly cause economic harm to the copyright owner, courts should award only nominal damages and decline to order injunctive relief.

scholarly journals BENTUK PERLINDUNGAN HUKUM TERHADAP PEMEGANG HAK TERKAIT (NEIGHBOURING RIGHTS)

2019 ◽  
Vol 3 (1) ◽  
pp. 20-35
Author(s):  
Zulvia Makka
Keyword(s):  
Legal Protection ◽  
Copyright Law ◽  
Moral Rights ◽  
Legal Issue ◽  
Economic Rights ◽  
The Public ◽  
The Law ◽  
Neighbouring Rights ◽  
Scope Of Protection

ABSTRAKHak terkait adalah hak yang berkaitan dengan hak cipta yang merupakan hak ekslusif bagi pelaku pertunjukan, producer fonogram, atau lembaga penyiaran. Berdasarkan pengertian hak terkait tersebut maka dapat dipahami bahwa yang merupakan pemilik hak terkait adalah pelaku pertunjukan, produser fonogram (lebih dikenal sebagai produser rekaman), dan lembaga penyiaran. Perlu adanya perlindungan untuk pelaku karena pelaku pertunjukan memiliki hak moral dan hak ekonomi yang terdapat pada pasal 23 UUHC. Yang memuat pada pelaku pertunjukan yang tidak dapat dihilang atau tidak dapat dihapus dengan alasan apapun. Namun pada prakteknya seringkali hak terkait ini dikesampingkan, karena lingkup perlindungan tidak hanya mencakup hak ekonomi dan hak moral. Permasalahan diatas menimbulkan isi hukum bentuk perlindungan terhadap hak terkait menurut undang-undang Hak Cipta dan perolehan Hak Terkait dalam Hak Cipta Isu hukum ini diteliti dengan menggunakan metode dengan tipe penelitian Normatif.Bentuk pelindungan Hukum terhadap Hak Terkait menurut Undang-Undang Hak Cipta terdiri dari 2 (dua) yaitu, perlindungn hukum preventif dan perlindungan hukum represif. Perolehan hak terkait dalam UUHC yaitu hak moral dan hak ekonomis. Hak moral pelaku pertunjukan merupakan hak yang melekat pada pelaku pertunjukan yang tidak dapat dihilangkan atau tidak dapat dihapus dengan alasan apapun walaupun hak terkait telah dialihkan. Hak Ekonomi Pelaku Pertunjukan adalah suatu hak yang diberikan oleh Undang-undang secara eksklusif kepada Pencipta untuk untuk memanfaatkan keuntungan suatu ciptaan yang biasanya berupa publikasi suatu salinan ciptaan atau fonogram supaya dapat tersedia untuk publik dalam jumlah tertentu. Kata Kunci : Perlindungan, Hak Terkait, Hak Moral, Hak Ekonomi  AbstractRelated rights are rights relating to copyright which are exclusive rights for performers, producer phonograms, or broadcasters. Based on the understanding of related rights, it can be understood that those who are related rights holders are performers, phonogram producers (better known as record producers), and broadcasting institutions. There needs to be protection for the perpetrators because the performers have the moral rights and economic rights contained in article 23 of UUHC. Which includes the performers who cannot be lost or cannot be removed for any reason. But in practice often these related rights are ruled out, because the scope of protection does not only cover economic rights and moral rights. The above issues give rise to the contents of the law in the form of protection of related rights according to the Copyright law and the acquisition of Related Rights in Copyright This legal issue is examined using methods with normative research types.The form of legal protection against Related Rights according to the Copyright Act consists of 2 (two), namely, preventive legal protection and repressive legal protection. The acquisition of related rights in the UUHC is moral rights and economic rights. The moral rights of performers are the rights inherent in the performers who cannot be removed or cannot be removed for any reason even though the related rights have been transferred. The Economic Rights of Performers is a right granted by the Law exclusively to the Creator to utilize the benefits of a work which is usually in the form of the publication of a copy of a work or phonogram so that it can be available to the public in a certain amount. Keywords: Protection, Related Rights, Moral Rights, Economic Rights

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