Melbourne Law School - Research Publications
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ItemInoculating Law Schools Against Bad Metrics(Elsevier BV, 2021-01-25)Law schools and legal scholars are not immune to the expanding use of quantitative metrics to assess the research of universities and of scholars working within universities. Metrics include grant and research income, the number of articles produced in journals on ranked lists, and citations (by scholars, and perhaps courts). The use of metrics also threatens to expand to measure other kinds of desired activity, with various metrics suggested to measure the impact of research beyond scholarly circles, and even more amorphous qualities such as leadership and mentoring. Many working legal scholars are (understandably) unaware of the full range of ways in which metrics are calculated, and how they are used in universities and in research policy. What is more, despite a large and growing research policy literature and perhaps an instinct that metrics are inherently flawed as a means to recognise research 'performance', few researchers are aware of the full scope of known and proven weaknesses and biases in research metrics. In this contribution to a forthcoming book, we describe the use of metrics in university and research and higher education policy (with a focus on Australia). We review the literature on the many flaws and biases inherent in metrics used, with a focus on legal scholarship. Most importantly, we also want to promote a conversation about what it might look like for academic researchers working in law faculties or on legal issues to assess research contributions that promote the shared values of the legal academy. Our focus is on two areas of research assessment: research impact and the bucket of concepts variously described as mentorship, supervision, and/or leadership. We reframe the questions that researchers and assessors should ask: not, “what impact has this research had”, but “what have you done about your discovery?”; not “what is your evidence of research leadership”, but, “what have you done to enable the research and careers of others?”. We also present concrete suggestions for how working legal scholars and faculties can shift the focus of research assessment towards the values of the legal academy. The chapter incorporates some of our thinking on developing meaningful legal research careers - something that will hopefully be of interest to any working legal scholar.
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ItemWe Need to Talk About Aereo: Copyright-Avoiding Business Models, Cloud Storage and a Principled Reading of the 'Transmit' Clause(Columbia University School of Law, 2014)Businesses are exploiting perceived gaps in the structure of copyright rights by ingeniously designing their technologies to fulfill demand for individual access through a structure of personalized copies and playback engineered in ways intended to implicate neither the public performance nor the reproduction rights. The archetypal example is Aereo Inc.’s system for providing online access to broadcast television. Aereo allows users to tune into individual antennae to stream TV to themselves, near-live, online. Aereo’s activities look a lot like the retransmission of broadcast signals, an activity which Congress has made very clear must result in remuneration for rightholders. However, Aereo’s careful design, which assigns each user her own antenna to generate an individual transmission copy from which she can access only the signals she could freely pick up from her own rooftop, means that it can also be argued that Aereo is simply enabling consumers to engage in legitimate non-remunerable uses. If the legality of this design is upheld by the Supreme Court this term, Aereo and subsequent comers will be able to offer consumers on-demand access to content, in a way that competes with licensed services, without any obligation to remunerate the rightholder. The implications of these business models are significant: in the case of audio and audiovisual works, for example, the on-demand access market may soon exceed the value of the retention copy-based market. When some participants are licensed but their competitors are not, the imbalance may provoke licensees to revise or forego their agreements. More generally, opportunistic engineering choices that obscure some courts’ perceptions of the impact on the on-demand access market risk removing evolving markets from the scope of copyright owners’ exclusive rights. Businesses that free-ride on copyrighted works also obtain an unfair competitive advantage over copyright licensees. The authors of this paper approach copyright from very different perspectives, but are united in the view that it is undesirable for legal outcomes to depend so heavily on technical design. This article addresses the U.S. caselaw that encouraged businesses such as Aereo to design technologies that could rival or even displace copyright-remunerative modes of making works of authorship available to the public. We consider the implications for copyright owners were Aereo and its supporters to succeed in their reading of the Copyright Act, as well as the implications for other technologies, particularly those involving “cloud” storage, were the broadcasters to prevail. Finally, each author offers her own analysis to demonstrate how it is possible to read the U.S. Copyright Act’s transmit clause in a way that does not make technological design determine the outcome. Either one of our readings, we argue, enables copyright’s exclusive rights to remain effective without discouraging technological innovation.
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ItemWhat Happens When Books Enter the Public Domain? Testing Copyright’s Underuse Hypothesis Across Australia, New Zealand, the United States and Canada(Melbourne Law School, 2019)A key justification for copyright term extension has been that exclusive rights encourage publishers to make older works available (and that, without them, works will be ‘underused’). We empirically test this hypothesis by investigating the availability of ebooks to public libraries across Australia, New Zealand, the United States and Canada. We find that titles are actually less available where they are under copyright, that competition apparently does not deter commercial publishers from investing in older works, and that the existence of exclusive rights is not enough to trigger investment in works with low commercial demand. Further, works are priced much higher when under copyright than when in the public domain. In sum, simply extending copyrights results in higher prices and worse access. We argue that nations should explore alternative ways of allocating copyrights to better achieve copyright’s fundamental aims of rewarding authors and promoting widespread access to knowledge and culture.