Melbourne Law School - Research Publications
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ItemARE CONTRACTS ENOUGH? AN EMPIRICAL STUDY OF AUTHOR RIGHTS IN AUSTRALIAN PUBLISHING AGREEMENTS(MELBOURNE UNIV LAW REVIEW ASSOC, 2020-01-01)A majority of the world’s nations grant authors statutory reversion rights: entitlements to reclaim their copyrights in certain circumstances, such as their works becoming unavailable for purchase. In Australia (as in the United Kingdom) we have no such universal protections, leaving creator rights to be governed entirely by their contracts with investors. But is this enough? We investigate that question in the book industry context via an exploratory study of publishing contracts sourced from the archive of the Australian Society of Authors. We identify serious deficiencies in the agreements generally as well as the specific provisions for returning rights to authors. Many contracts were inconsistent or otherwise poorly drafed, key terms were commonly missing altogether, and we demonstrate that critical terms evolved very slowly in response to changed industry realities. In response to this new evidence we propose that consideration be given to introducing baseline minimum protections with the aim of improving author incomes, investment opportunities for publishers and access for the public.
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ItemNo Preview AvailableOptus v NRL: A Seismic Shift for Time Shifting in Australia(Sweet and Maxwell, 2012)In Optus v NRL, Australia’s Federal Court recently held that consumers had broad rights to “time shift” television programs, including via the use of remote recording and storage devices. The applicants were the AFL and the NRL, sporting organisations which had big plans for the monetisation of internet streaming rights, and Telstra, which had already paid some $153m for rights to several seasons of AFL games. This paper provides a detailed overview of the decision and the relevant law, and considers its likely significance for stakeholders including broadcasters, sports operators and other content owners, streaming providers and consumers.
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ItemOn Aereo and 'Avoision'(Copyright Society of Australia, 2014)Avoision describes conduct which seeks to exploit 'the differences between a law's goals and its self-defined limits' - a phenomenon particularly apparent in tax law. This short paper explains how the technology company Aereo utilised avoision strategies in an attempt to design its way out of liability under US copyright law. The authors argue that existing formulations encourage such strategies by applying differently depending on how the transaction is structured, resulting in a wasteful devotion of resources to hyper-technical compliance with the letter rather than meaning and purpose of the law.
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ItemRewinding Sony: An Inducement Theory of Secondary Liability(Sweet and Maxwell, 2005)Discusses the US Supreme Court ruling in Metro - Goldwyn - Mayer Studios Inc v. Grokster Ltd, which preserved the technology protecting rule established by its earlier decision in Sony Corp of America v. Universal City Studios Inc but failed to clarify its application to peer to peer (P2P) technologies. Reviews the operation of the Sony rule on vicarious and contributory liability in copyright cases, its application in subsequent case law, the Grokster judgment's likely impact on the Sony principles and the remaining areas of uncertainty regarding the revised test to be met by P2P companies seeking to escape secondary liability for inducement of copyright infringement. Reflects on the likely effects of the Grokster ruling for future technologies.
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ItemStranded in the Technological Dark Ages: Implications of the Full Federal Court's Decision in NRL v Optus(Sweet and Maxwell, 2012)Australia’s Full Federal Court recently overturned the findings of the trial judge in the Optus v NRL television time-shifting case. Finding that the time-shifting provider (and not just the user) “makes” the relevant recording, the decision effectively renders remote television time-shifting services unlawful in Australia. This paper argues that it also has significant ramifications for more traditional time-shifting technologies, and, if not overturned, might decimate the value of the nascent Australian time-shifting right and strand consumers in a technological dark age.
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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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ItemProtection of genomic data and the Australian Privacy Act: when are genomic data 'personal information'?(Oxford University Press, 2023-02-01)Key Points • Personal information’, protected under the Australian Privacy Act 1988 (Cth), is ‘about an identified individual or an individual who is reasonably identifiable’ (S.6), so the legal assessment of ‘identifiability’ shapes the protection of genomic data under the Privacy Act. • Not all genomic data are captured by the statutory definitions of ‘genetic information’ in the Privacy Act; however, genomic data that do not fit the definition may still be protected if they are about an identifiable individual. • In applying the legal test of identifiability to genomic data, the interaction between the data and the data environment must be examined. Overemphasis on particular features of genomic data, such as ‘rareness’ or ‘uniqueness’, may lead to a misapplication of the Privacy Act. • Whether genomic data are personal information is primarily a matter of the opportunities and likelihood of linking the genomic data in question with other data available in the data environment.
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ItemAbandoning individual enforcement? Interrogating the enforcement of age discrimination law(CAMBRIDGE UNIV PRESS, 2023-02-15)Abstract Discrimination law primarily relies on individual enforcement for addressing discrimination at work; yet those who are most impacted by discrimination are likely the least able to enforce their rights. The question then becomes: what role should individual enforcement play in discrimination law? Can we effectively abandon individual enforcement as part of the legislative model? Drawing on a mixed method, multi-year comparative study of the enforcement of age discrimination law in the UK, Australia and Sweden, this paper considers the gaps, limits and risks of the individual enforcement model in discrimination law. Integrating doctrinal analysis; statistical analysis of claims and cases, and data from the EU and OECD; qualitative expert interviews; and a survey of legal practitioners, this paper argues that while individual enforcement is inherently limited as a tool for achieving systemic change, it must remain part of any legislative model. Reflecting on the experience in Sweden, where individual enforcement of discrimination law is significantly curtailed, the paper posits that individual rights and individual enforcement remain important complements to other regulatory tools, particularly in jurisdictions with strong enduring age norms. Abandoning or severely restricting individual enforcement is unlikely to support either the macro or micro effectiveness of age discrimination law.
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