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 Should a Licensing Market Require Licensing?

2016 ◽  
Author(s):  
Mark Lemley
Keyword(s):  
Copyright Law ◽  
Copyright Owner ◽  
Injunctive Relief ◽  
Definition Of ◽  
And Control

Copyright owners have persuaded the courts that they should win cases inwhich a defendant's use doesn't injure their market directly, but in whichthey could and would have charged a fee to grant permission for the use.Even assuming courts are right to have accepted this argument, it isunreasonable to then give the copyright owner not just the fee they wouldhave charged but the power to prevent the use altogether or to collectdamages far in excess of that fee. Licensing market cases are excellentchoices for separating compensation and control, giving copyright ownersthe right to get paid without giving them control over transformative uses.Doing so is harder than simply denying injunctive relief, however. Itrequires us to rethink our definition of damages in copyright law with theaim of remedying injury rather than always seeking to deter infringement.

Small-Scale Deliberation and Mass Democracy: A Systematic Review of the Spillover Effects of Deliberative Minipublics

2021 ◽  
pp. 003232172110072
Author(s):  
Ramon van der Does ◽  
Vincent Jacquet
Keyword(s):  
Systematic Review ◽  
Empirical Evidence ◽  
Empirical Research ◽  
Spillover Effects ◽  
Future Research ◽  
Small Scale ◽  
Long Term Effects ◽  
Current Crisis ◽  
Mass Democracy

Deliberative minipublics are popular tools to address the current crisis in democracy. However, it remains ambiguous to what degree these small-scale forums matter for mass democracy. In this study, we ask the question to what extent minipublics have “spillover effects” on lay citizens—that is, long-term effects on participating citizens and effects on non-participating citizens. We answer this question by means of a systematic review of the empirical research on minipublics’ spillover effects published before 2019. We identify 60 eligible studies published between 1999 and 2018 and provide a synthesis of the empirical results. We show that the evidence for most spillover effects remains tentative because the relevant body of empirical evidence is still small. Based on the review, we discuss the implications for democratic theory and outline several trajectories for future research.

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.

Gender

2017 ◽  
pp. 644-672
Author(s):  
Paola Giuliano
Keyword(s):  
Domestic Violence ◽  
Gender Roles ◽  
Empirical Research ◽  
Labor Force Participation ◽  
Gender Norms ◽  
Social Attitudes ◽  
Attitudes Toward Women ◽  
Cultural Norms ◽  
Historical Origin ◽  
And Gender

Social attitudes toward women vary significantly across societies. This chapter reviews recent empirical research on various historical determinants of contemporary differences in gender roles and gender gaps across societies, and how these differences are transmitted from parents to children and therefore persist until today. We review work on the historical origin of differences in female labor force participation, fertility, education, marriage arrangements, competitive attitudes, domestic violence, and other forms of difference in gender norms. Most of the research illustrates that differences in cultural norms regarding gender roles emerge in response to specific historical situations but tend to persist even after the historical conditions have changed. We also discuss the conditions under which gender norms either tend to be stable or change more quickly.

scholarly journals Sexual deviance in prison: Queering identity and intimacy in prison research

2020 ◽  
Vol 20 (5) ◽  
pp. 551-563
Author(s):  
Nicola Carr ◽  
Tanya Serisier ◽  
Siobhán McAlister
Keyword(s):  
Empirical Research ◽  
Small Scale ◽  
Sexual Deviance ◽  
Research Project ◽  
Contemporary Research ◽  
Bisexual And Transgender ◽  
Research And Policy ◽  
Policy Solutions

Recent years have seen increased attention in both research and policy towards lesbian, gay, bisexual and transgender prisoners as a group with distinct needs. This has been driven by wider political recognition of lesbian, gay, bisexual and transgender rights and research suggesting that lesbian, gay, bisexual and transgender prisoners are particularly ‘vulnerable’ to bullying and abuse within prison settings. Much of this research, and the policy solutions associated with it, we argue, ignores or side-steps queer perspectives, relying instead on liberal conceptions of identity, vulnerability and, ultimately, assimilation. Just as contemporary campaigns around marriage rights see lesbian, gay, bisexual and transgender communities and individuals as fundamentally the same as the majority, rather than posing a challenge to the heteronormativity of marriage as an institution, much contemporary research and policy on lesbian, gay, bisexual and transgender prisoners sees this group as marked only by potential discrimination. We argue here instead that experiences of lesbian, gay, bisexual and transgender prisoners can be read ‘queerly’ so as to potentially challenge the rigid gender and heteronormative foundations that underlie systems of incarceration. We draw on a small-scale empirical research project around the experience of lesbian, gay, bisexual and transgender prisoners to revisit contemporary paradoxes of prisons and sexuality and to problematise understandings of identity, intimacy and deviance in the prison context.

scholarly journals Intercession and the Taboo and Stigma on Mental Health and Doctrinal Anomalies: Pastoral and Theological Implications of Public Prayer Practices

2019 ◽  
Vol 23 (2) ◽  
pp. 206-223
Author(s):  
Armand Léon van Ommen
Keyword(s):  
Mental Health ◽  
Empirical Research ◽  
Alasdair Macintyre ◽  
Cultural Norms ◽  
Mary Douglas ◽  
Wide Range ◽  
The Way ◽  
Public Worship

Abstract Prayers of intercession cover a wide range of topics, yet prayers for mental health or issues around sexuality or divorce prove to be taboo and stigmatised. This article interprets this finding from empirical research with the theories of taboo as outlined by Alasdair MacIntyre and Mary Douglas. The article offers pastoral-theological reflections on the problem of taboo and stigma – caused by doctrine or cultural norms – in intercession. The article argues that the practices of solidarity, naming, and hospitality reframe the way taboo and stigma can be thought about theologically and therefore eventually might influence intercession in public worship.

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 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

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.

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