A - J

Copyright Harmonisation in the Asian Pacific: Weaving the people together?

Dr Lida Ayoubi, Lecturer, School of Law, Auckland University of Technology,         New Zealand

In 2015 Professor Adrian Sterling proposed an “Asian Pacific Copyright Code” that would harmonise the copyright laws of Asian Pacific countries that adopt the code. Regional as well as international copyright harmonisation has proven to be a complex issue. For instance, the 1994 Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) was arguably the most significant step in harmonising intellectual property (IP) law including copyright on a global scale. There have been attempts at harmonising copyright and related rights in the European Union since the late 1990s and their success or failure is still debated. The Asian Pacific countries have particular characteristics, one of which being their indigenous populations, that might further complicate harmonisation. The relationship between indigenous knowledge and culture and copyright is already a major component of the IP and human rights literature. This article evaluates copyright harmonisation in the Asian Pacific region while focusing on the existing experiences of international and regional harmonisation; the relevant particularities of the Asian Pacific countries; and, an indigenous peoples’ rights perspective on such harmonisation. 
A Study on the Contradiction between Droit de Suite and the First Sale Doctrine—From the Perspectives of Law and Economics

Associate Professor Kuang-Cheng ChenGraduate Institute Law for Intellectual Property Rights, School of Law, Shih Hsin University, Taiwan

Droit de Suite” was adopted in the Second Draft of the Amendment to the Copyright Act of China (hereafter, the Copyright Act Amendment of China) on July 6, 2012, and Clause 1, Article 12 of the Copyright Act Amendment of China regulated that authors, successors, or legatees of artistic, photographic, and musical works or drafts could obtain the rights of benefit sharing after these works or drafts are auctioned. From this amendment, we can understand the Chinese government’s attempts to ensure healthy auctions and factor in European laws. In fact, “Droit de Suite” initially emerged from a special law in France in 1920, and it was formally ruled in Article 14ter of the 1948 Brussels Amendment of Berne Convention for the Protection of Literary and Artistic Works in 1886. “Droit de Suite” is designed to protect the authors of artistic works who could obtain a certain percentage of rewards from the auction prices of each auction of these works. However, the “First Sale Doctrine,” which is a primary part of the “Right of Distribution” in copyright laws, indicates that authors exhaust their control and rights of distribution for original and duplicated works after they first sell or transfer the ownership of these works. Apparently, the “First Sale Doctrine” aims to ensure the free exchange of works and flow of information to lower the searching costs within transaction costs. Since they cannot be transferred or succeeded, “Moral Rights” (including “Droit de Suite”) occupy the dominant status when they conflict with “Economic Rights.” Hence, it follows that “Moral Rights” are superior to the limits of “Economic Rights,” including the “First Sale Doctrine.” In this manner, “Droit de Suite” blocks the maximum use of copyrighted works, thereby narrowing down the application of the “First Sale Doctrine” with economic analyses. Although “Droit de Suite” protects the personal benefits gained by authors from auction rewards internally, courts and auction winners bear high external transaction costs, including the high enforcement and control costs of “Droit de Suite.” Consequently, this study evaluates whether “Droit de Suite” added under “Moral Rights” is efficient from the legal and economic perspectives. In addition, it suggests restricted approaches for “Droit de Suite” by considering contracts and limited terms in order to internalize its external costs in the case that states plan to add it within the ambit of “Moral Rights” in copyright laws.

The Making Available Right: Problems with "the Public"

Cheryl Foong, Lecturer, Curtin Law School, Curtin University, Perth,              Western Australia 

In recent years, we have seen developments in networked technologies such as cloud storage throw the spotlight on the exclusive right of the copyright owner to communicate copyright material to the public.  Since its introduction through the WIPO Internet Treaties, the right to communicate to the public by “making available” has promised to take centre stage in the Internet era we now inhabit. However, it has not been until recent times that its scope and impact has come under close scrutiny. This paper reviews the elements and operation of the making available right, focusing in particular on the increasingly problematic notion of “the public”. It will analyse the pitfalls of a judicial trend, spanning several jurisdictions (Australia, EU and US), that exhibits an expansive interpretation of the element. This trend is found in recent cases, and is further illuminated by an analysis of historical cases. This paper posits that an approach to copyright that takes into account its communications function—to promote the dissemination of knowledge and culture—would bring a deeper level of understanding and balance to the issues at hand.  

Future-proofing copyright

Dr Rebecca GiblinDeputy Director of the Monash Centre for Commercial Law and Regulatory Studies (leading Innovation and Intellectual Property).  Monash University, Melbourne, Australia

In thinking about whether a new regional copyright law ought to be developed and what it might look like, it's instructive to consider lessons from both the broader international experience and recent trends in domestic policy-making. The major international copyright treaties are virtually impossible to change, and the chances of the Berne Convention ever being revised again look vanishingly small. On the domestic front, lawmakers in an increasing number of countries are finding it politically impracticable to enact substantial reform in the midst of an increasingly contentious copyright discourse, even in spaces where the treaties permit them to do so. In both cases, the result can be outdated mandates that fail to respond adequately to new technological and social realities. Drawing from this history Dr Giblin will identify the main traps to be wary of in contemplating any new regional copyright agreement, before proposing some positive mechanisms that may enable us to do a better job of future-proofing copyright.  

China’s cultural censorship system and its influence on copyright protection

Dr Tianxiang He, Assistant Professor, School of Law, City University of Hong Kong

Besides the copyright laws, the Chinese government uses its censorship system, along with its import quotas and enforcement campaigns, to adjust wrongdoings that it finds in its cultural market. China is famous for its strict censorship system regarding cultural goods. China is not, of course, the only country which advocates censorship, but its uniqueness lies in the political purposes that its censorship system serves. This article explores China’s censorship system in the cultural sector in detail. It examines the ex ante and ex post censorship system in three major areas: publication, traditional broadcasting channel, and online publishing, and the interplay among related legislations, regulations, and national enforcement campaigns. The Chinese government is very open in terms of the content being distributed across different channels. It is also clear that the possibility for foreign capitals to conduct business is severely restricted in China. Therefore, foreign copyright holders have to rely on local service providers. However, given the ambiguous ex ante censorship criteria and the punishment officially licensed local distributors will receive for letting ‘bad stuff’ in, many foreign works will be denied entry de facto, simply because no practitioners would dare take the risk. Even for those works that have passed the harsh censorship examination and have already entered the Chinese market via traditional means, they still have to face explicit and implicit restrictions, such as discrimination between local and foreign works in broadcasting hours, and import quotas. Moreover, that they are ‘safe’ now does not mean that they will be ‘safe’ in the future, since the ex post censorship, along with enforcement campaigns, will ensure that when a once ‘safe’ object becomes a threat, it will soon disappear from public view. This article explains how China uses these legal instruments and utilizes enforcement campaigns, to strategically live up to their international obligations and serve its political needs of content control and market domination, rather than merely the outward purposes of these regulatory instruments and campaigns such as copyright protection.

 Harmony and counterpoint: dancing with fair use in New Zealand and Australia?

Melanie Johnson, Copyright Officer, Libraries and Learning Services, 
University of Auckland, New Zealand
&
Robin Wright, Copyright Manager, Swinburne University of Technology, Australia

Free trade agreements now include intellectual property provisions aimed at the harmonising law between trading partners in order to facilitate trade.  New Zealand and Australia are parties to the Transpacific Partnership Agreement which has required that members increase protections for copyright.  Since 2004 various recommendations have been made in Australia to introduce a broader United States-style expanded fair dealing provision to counterbalance the increased protections for rights owners as a result of the Australia United States Free Trade Agreement and to provide greater flexibility in a rapidly changing digital environment.  This paper will consider whether harmonisation of the copyright law of Australia and New Zealand is possible with particular regard to fair use and whether or not it is in the best interests of both parties.  Currently both New Zealand and Australia have prescriptive fair dealing exceptions based on the British model which do not readily adapt to developments in technology.  If Australia accepts the recommendations and adopts a fair use regime, will New Zealand follow suit?  New Zealand Australia Closer Economics Relations (CER) is a commitment to create a seamless trans-Tasman business environment, making it as easy for New Zealanders to do business in Australia as it is to do business in and around New Zealand and includes measures to unify policy, laws and regulatory regimes in both countries.  In order to compete on a level playing field with Australia, New Zealand may wish to adopt a similar provision or risk falling further behind in innovation and development of its technology. While there will be strong resistance from rights owners, should it arrive, fair use or an equivalent provision in New Zealand and Australia may end up looking very different to fair use in the US.

Putting Artists, and Guardians of Indigenous Works First: Towards a Restricted Scope of Freedom of Panorama in the Asian-Pacific Region

Dr Jonathan Barrett, Senior Lecturer, School of Accounting and Commercial Law, Victoria University of Wellington, New Zealand

Freedom of panorama is an exception to authors’ exclusive rights to economically exploit their works. Australia and New Zealand have adopted the particularly broad conception of freedom of panorama which typifies British heritage copyright systems. In this scheme, all authors of architectural works, buildings, sculptures and works of artistic craftsmanship are potentially affected by freedom of panorama, since they may not be able to fully exploit their works in the marketplace. Furthermore, these works, which are in the public space may, are commonly treated as being in the public domain and consequently subjected to derogatory treatment. However, the impact of freedom of panorama on Indigenous artists is arguably most acute because certain of their works are not intended to be commercially exploited. At worst, an Indigenous artist whose work is exploited by outsiders may face serious community sanctions for failing in their guardianship obligations. Many countries in the Asian-Pacific region have Indigenous peoples, either in a minority or a majority, whose three dimensional artistic works may be adversely affected by excessively liberal freedom of panorama provisions. This paper argues for the adoption of a restricted scope of freedom of panorama across the Asian-Pacific region for the benefit of artists in general but specifically for Indigenous artists and guardians of their works. 

TPM regulation in New Zealand and the United States: Round one to the U.S?

Associate Professor Susan Corbett, School of Accounting and Commercial Law, Victoria University of Wellington, New Zealand

The importance of intellectual property to the global economy is reflected by the inevitable presence of an intellectual property chapter in bilateral and multilateral free trade agreements. The United States, a leading exporter of copyright works, leads many such agreements and requires contracting states, many of which are copyright importers, to strengthen their intellectual property laws to be equivalent to United States’ laws. However, states should ensure they do not amend their laws in ways that will result in their citizens being placed at a disadvantage compared to United States’ citizens. For example, the copyright section of the Trans Pacific Partnership (TPP) requires Parties to introduce strict restrictions on the use of circumvention devices to unlock technical protection measures (TPMs) on copyright works, and to provide increased penalties for infringing activities. Although these measures conform to the equivalent provisions in the United States’ Digital Millenium Copyright Act (DMCA), they do not acknowledge the outcomes of the three-yearly rulemaking process that moderates the TPM anti-circumvention provisions of the DMCA for specific classes of copyright works. Focusing on New Zealand, this article describes the anti-circumvention provisions that New Zealand proposes to introduce into its copyright law to comply with the TPP. The article contrasts the New Zealand amendments with the 2015 rule made under the DMCA and explains why domestic compliance with the TPP by all Parties should proceed with caution.  

Remapping Copyright Functionality: The Quixotic Search for a Unified Test of Separability for PGS Works

Professor Shubha Ghosh, Crandall Melvin Professor of Law and Director of the Technology Commercialization Law Program, Syracuse University College of Law

Intellectual property protection of design has been a vexing problem, perhaps more so in the United States than in Europe. Design protection is a central question in many Asian countries, such as Singapore, India, and China as these countries work to diversify their economic basis and move to compete globally in manufacturing, software, and entertainment sectors. Debates in the United States over design protection, whether conducted in the legislature or the courts, have centered on creating incentives for vexatious litigation among competitors and the adequacy of existing copyright, trademark, and patent laws in protecting the economic interests of designers. As the United States has not adopted a sui generis statute to protect designs, the debate continues within trademark, patent, and copyright laws as to the scope of protection for purely ornamental features of a work. This Article focuses on the debate within copyright, made particularly salient by the United States Supreme Court’s decision to review Star Athletica v. Varsity Brands in the 2016-2017 term.  This potentially watershed case will have implications for design protection in Asia as lawmakers attempt either to emulate a desirable legal regime or to avoid mistakes.  This Article explores the dilemmas confronting the Court in identifying the appropriate test for separability. The United States Court of Appeals for the Sixth Circuit, the intermediate appeals court whose decision in Star Athletica the Supreme Court is reviewing, identified nine distinct tests adopted by the intermediate appellate courts to separate copyrightable aesthetics from noncopyrightable function in a given work. The Sixth Circuit also announced its own hybrid test. These tests are the product of nearly forty years of jurisprudence, at least since the current Copyright Act of 1976. It is difficult to imagine how the Court will identify the one correct test from all these options. Most likely, it will distill some general principles to help guide the lower courts in reviewing cases, drawing on its foundational decision in Mazer v. Stein. Perhaps these principles will evolve into some clear rules and applicable standards. Most likely, litigation will continue and jurisprudence on separability will continue to proliferate.  The case of maps and charts, although seemingly far removed from cheerleader outfits, fashion design, and accessorizing, provides a window into the dilemma of creating a coherent doctrine of copyright functionality. This Article casts attention to maps and charts, in part, because they comprised, along with books, the original subject matter of copyright the first United States statute enacted in 1790. The lessons gleaned from the study of maps will have implications for design protection regimes globally and particularly in Asia. 

Copyright v Freedom of Contract: The “Contract Override” Issue in Hong Kong’s Copyright Amendment

Dr Wenwei Guan, Assistant Professor, School of Law, City University of Hong Kong

Although both failed attempts of copyright amendment in the 2011 Bill and 2014 Bill shared with one another an emphasis on copyright’s limitation over free speech, the contract override issue indicates a particular confusion as to the nature of copyright, contract freedom and international obligation. As property right recognition gives constitutional support to copyright and contract serves as the means to individual freedom manifested in private property, contract override bears certain constitutional legitimacy. This paper argues, however, that while property right has an in-built limitation from the needs of others, and the Victorian sanctity of contract has been gradually qualified by “the needs of the all”, the balance of rights and obligations to the consideration of public interest and social development is imperative, and is an international obligation for intellectual property protection under TRIPS subject to no derogation. The proposal that allows contract, as the means for individual freedom manifested in private property, to override those copyright exceptions aiming at limiting private rights for the balance of rights and obligations finds no jurisprudential support. The paper calls for a careful examination of the nature of copyright, contract freedom and international obligation should Hong Kong’s copyright amendment effort resume.
Implementation of the Marrakesh Treaty for Visually Impaired Persons into Chinese Copyright Law

Jie Hua, Assistant Professor, School of Law, Tongji University, Shanghai China

Development of digital network technology has advanced people’s capability to access to obtain, disseminate and utilize copyright information and works. Despite of the digital progress, a large number of visually impaired persons (VIPs) are deprived of access to copyright information and works due to lack of exceptions in national copyright laws for facilitating VIPs to obtain copyright works in low cost or even freely. In order to resolve the global book famine of VIPs, the World Intellectual Property Organization (WIPO) adopted the Marrakesh Treaty to Facilitate Access to Published Works for Persons who are Blind, Visually Impaired, or otherwise Print Disabled (the Marrakesh Treaty) on 27 June 2013 to provide a series of exceptions to copyright for facilitating the visually impaired to access to copyright works. The Treaty creates minimum standard of exceptions and provides leeway for Contracting Parties to domestically incorporate these exceptions. As a member country of WIPO, China has signed the Marrakesh Treaty but has not ratified it. It is important for China to implement the Treaty provisions into its copyright law before submitting the ratification to WIPO. After analyzing the reasons for global book famine of the visually impaired and examining the key provisions in the Marrakesh Treaty, this article figures out inadequate exceptions for the benefit of the VIPs in the current Chinese Copyright Law and suggests proposals for implementing the Treaty provisions into the domestic law. In detail, this article proposes the Chinese Copyright Law expanding the scope of beneficiary persons and accessible format copy, clarifying authorized entity and types of works under the exceptions, adjusting permitted activities in compliance with the Marrakesh Treaty, as well as taking relevant issues, such as export and import of accessible format copy and circumvention of technological measures, into consideration. Furthermore, lawmakers in China may consider two either-or approaches to implement the Marrakesh Treaty: to incorporate the provisions directly into the Chinese Copyright Law; or to promulgate an independent copyright regulation to particularly govern exceptions for people with visual and print disability.


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