Melbourne Law School - Research Publications
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ItemNo Preview AvailableFilm Review: Four Perspectives on Hanung Bramantyo’s Kartini(Indonesian Resources and Information Program (IRIP), 2017-07)Following the Melbourne screening of Hanung Bramantyo’s new film Kartini in May 2017, the University of Melbourne’s Indonesia Forum organised a symposium on the theme ‘The film Kartini and Kartini as a source of historical and contemporary inspiration in Indonesia’. Four speakers were invited to present their responses based on their particular areas of research. Here they briefly re-present their takes on director Hanung’s latest cinematic interpretation of Indonesia’s iconic female national hero.
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ItemSocial Media and Court Communication(Sweet and Maxwell, 2015)Courts have traditionally relied on the delivery of judicial decisions as their sole means of direct communication with the general public. Over time this reliance is shifting, including through the willingness of courts to have their proceedings televised. Courts have also sought to have greater influence on how others communicate about and report their decisions, such as by employing public information officers to prepare press releases on court activities and liaise with the media. Most recently, judges and courts have taken their engagement with the public one step further by experimenting with the use of social media. Social media such as Twitter or Facebook provide a new means by which courts can enhance their openness and accessibility. However, such technologies also come with a fresh set of challenges. In particular, unlike television or media reporting, social media is designed to foster dialogue and ongoing interaction between participants. This needs to be carefully considered, as the use of social media has the potential to affect not only the processes by which courts communicate, but also the nature and substance of court proceedings. While this latter effect could be positive, injudicious use of social media could compromise a court’s ability to operate with independence and integrity. Drawing on a case study of social media use by courts in three common law jurisdictions (the United Kingdom, Australia and the United States of America), this paper considers the extent to which direct communication processes via social media may further the underlying objectives of court communication and enhance the courts’ constitutional role. It considers the opportunities and challenges posed by such media for courts, and how the inherent limits and constraints of social media may affect the nature of court communication. We assess the extent to which courts should make greater use of social media to enhance their existing communication processes and consider whether additional safeguards should be adopted to ensure the use of social media does not detrimentally impact upon the judicial system.
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ItemWhat Can 100,000 Books Tell Us About the International Public Library e-Lending Landscape?(University of Borås, Sweden, 2019)Introduction. We investigated the relative availability of e-books to libraries for e-lending in five English-language countries & analysed their licence terms and prices. Method. We created a unique dataset recording author, publisher, price and terms for 100,000 titles and 388,045 e-lending licences across Australia, New Zealand, Canada, the United States and United Kingdom through the aggregator Overdrive. We developed new algorithms to estimate the original publication year for each title & to match titles across jurisdictions. Analysis. We examined the relationships between title price, age, terms, jurisdiction, publisher and publisher type using various statistical analyses and machine learning. Results. Price and licence differences across countries are largely attributable to the Big 5 publishers. Prices are largely independent of title age (unless the title is in the public domain) or the rights libraries obtain in exchange. Licence terms are not affected by age either, meaning that the most restrictive terms are often applied to older, less demanded books. Conclusions. By setting terms independent of titles' value to libraries, publishers may discourage libraries from adding older and less-demanded books to their collections. We will test this hypothesis in a follow-up library survey.
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ItemWe (Still) Need to Talk About Aereo: New Controversies and Unresolved Questions After the Supreme Court's Decision(Columbia University Libraries and Columbia Law School, 2015)Recent judicial interpretations of U.S. copyright law have prompted businesses to design technologies in ways that enable the making and transmission of copies of works to consumers while falling outside the scope of the owner’s exclusive rights. The archetypal example was Aereo, Inc.’s system for providing online access to broadcast television. Aereo allowed users to tune into individual antennae to stream near-live TV to themselves, online. If this activity fell within the scope of the exclusive right of public performance, then it required the permission of right holders. The “Transmit Clause” of the U.S. Copyright Act’s definition of “to perform publicly” brings within the scope of the public performance right: [T]ransmitting or otherwise communicating a performance or display of the work . . . to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times. Holdings from the Second Circuit that the relevant performance was the specific transmission from each copy, and that those performances could not be public if made to only a single user, gave Aereo a blueprint for avoiding liability. It took up the invitation by designing a system incorporating thousands of dime-sized antennas. By temporarily assigning one to each user, from which she could access only the signals she could freely pick up from her own rooftop, Aereo’s service enabled individual copies to be made of each program and then transmitted on request to the user. Since each transmission was directed only to the single requesting user, Aereo argued it could not be considered made “to the public.”
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ItemA New Copyright Bargain? Reclaiming Lost Culture and Getting Authors Paid(Columbia University Libraries and Columbia Law School, 2018)Copyright’s fundamental structure is based on outdated assumptions, including that marginal costs of copying and distribution are high, and registration systems necessarily onerous and expensive. International treaties embedded these assumptions into domestic laws worldwide, and for good reasons: when the Berne Convention prohibited formalities in 1908, it was a necessary response to compulsory registration systems that unfairly burdened authors. And, when those high marginal costs meant only the most popular works could be made enduringly available anyway, there was little downside in granting long terms that could outlast their owners’ interest: those less popular works were going to be lost regardless.
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ItemWhy were Commonwealth Reversionary Rights Abolished (and What Can We Learn Where They Remain)?(Sweet and Maxwell, 2019)In this Paper we examine the development and removal of the 1911 Imperial copyright reversion right. We find this right was spuriously removed in the UK, Australia and New Zealand. We then find that criticisms of the right in Canada (it still exists there) can help teach us what a new, effective reversion right might look like.
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ItemAvailable, but not accessible? Investigating publisher e-lending licensing practices(University of Borås, Sweden, 2019-09)Introduction. We report our mixed-methods investigation of publishers’ licensing practices, which affect the books public libraries can offer for e-lending. Method. We created unique datasets recording pricing, availability and licence terms for sampled titles offered by e-book aggregators to public libraries across Australia, New Zealand, Canada, the United States and United Kingdom. A third dataset records dates of availability for recent bestsellers. We conducted follow-up interviews with representatives of 5 e-book aggregators. Analysis. We quantitatively analysed availability, licence terms and price across all aggregators in Australia, snapshotting the competitive playing field in a single jurisdiction. We also compared availability and terms for the same titles from one aggregator across five jurisdictions, and measured how long it took for a sample of recent bestsellers to become available for e-lending. We used data from the aggregator interviews to explain the quantitative findings. Results. Contrary to aggregator expectations, we found considerable intra-jurisdictional price and licence differences. We also found numerous differences across jurisdictions. Conclusions. While availability was better than anticipated, licensing practices make it infeasible for libraries to purchase certain kinds of e-book (particularly older titles). Confidentiality requirements make it difficult for libraries to shop (and aggregators to compete) on price and terms.
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ItemAt the Intersection of Public Service and the Market: Libraries and the Future of Lending(Thomson Reuters, 2015)Most library uses of books occur outside the purview of copyright and the market. Loans fall outside copyright’s exclusive rights; libraries have exceptions for many activities that involve copying. Author remuneration for library uses via the public lending right is governed by distinctly non-market considerations. This changes when works take digital form: electronic lending involves copies and transmissions which copyright owners have a right to license. As a result, libraries’ ability to engage in electronic lending is governed by private contract, which means market forces largely determine the terms on which libraries can provide access – and whether they may do so at all. This has potentially significant implications: libraries have traditionally played an important role in furthering the public’s interest in access to content and other societal goals including the encouragement of Australian authorship. This article provides a doctrinal mapping of the regulation of physical and digital lending. It also identifies avenues of investigation which need to be explored to inform the practices of libraries and policymaking. What could we lose by a wholesale operation of market forces? And what could we gain?
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ItemNo Preview AvailableLawyers, Confidentiality and Whistleblowing: Lessons from the McCabe Tobacco Litigation(Melbourne University, Law Review Association, 2017)In 2006, Christopher Dale leaked information about Clayton Utz’s internal investigation into the events surrounding the destruction of documents that would have been relevant and damaging to their client, British American Tobacco, in the 2002 McCabe litigation. This article uses this case study to examine whether lawyers can and should act as whistleblowers against colleagues and clients who abuse the administration of justice. We argue that although lawyers must have strong obligations of confidentiality to clients and others, their role as gatekeepers of justice also demands that they be allowed to blow the whistle when they have information about clients or other lawyers using legal services to subvert the administration of justice, and be protected when they do so. The article evaluates the circumstances in which such whistleblowing is appropriate and makes suggestions about how the law should be reformed by reference to three touchstones: the nature of the relationship between the lawyer and the wrongdoer; the nature of the wrongdoing itself; and, the process used to disclose the wrongdoing.