K - T

The Development of Performers’ Rights in New Zealand

Dr Jessica Lai, Senior Lecturer, School of Accounting and Commercial Law, Victoria University of Wellington, New Zealand

New Zealand first introduced performers’ rights into its law in the Copyright Act 1994 to meet its TRIPS obligations. This was relatively late compared to many countries. In the 22 years since the enactment, there has not been a single dispute relating to performers’ rights and New Zealand has not acceded to the WIPO Performances and Phonograms Treaty (WPPT). Nevertheless, New Zealand is proposing to expand performers’ rights in the Trans-Pacific Partnership (TPP) Agreement Amendment Bill. The TPP actually requires very little with respect to performers’ rights, as does the Asia-Pacific Copyright Code. This paper outlines the development of performers’ rights in New Zealand and asks where we are heading and why, given the seeming lack of importance of performers’ rights in New Zealand and absence of international obligations.

Major Amendments to China's Copyright Act: My Perspective

Prof. Dr.  Xiuqin Lin, Intellectual Property Research Institute, School of Law, Xiamen University, PR China

Since China launched the 3rd amendment to its Copyright Act in 2012, mainly to cater for the demand of China's internal social and economic development, there has been heated debates over every provisions under change. These debates may provide a window for readers outside China to look into the potential change of China's copyright landscape. I will discuss the key issues concerning the 3rd amendment to China's Copyright Act, including resale right, rental right, protection of "works of applied art", safe harbour rule for ISPs, copyright licensing, fair use and collective management. As a whole, the major proposed changes under the 3rd amendment attempt to enhance the protection of copyright, while  it seems to extend the scope of fair use at the same time. Moreover, the proposed new law lays great emphasis on the "use" or "application" of copyrighted work.

Broadening the Normative Inputs for 21st Century Copyright Reform: Isn’t it Time to Add Privacy Into the Mix?

Professor Emeritus Doris Estelle Long, The John Marshall Law School (Chicago)

From the heightened surveillance possibilities of drone photography, bot searches and filtering technologies, to the rapid unauthorized dissemination of personal information through the digital posting of leaked documents and personal sexting images that often qualify as copyright protectable works, privacy protection has become inextricably linked with copyright laws.  We have already seen its consideration in domestic law battles over the appropriateness of blocking injunctions, filtering technologies and bot searches in the enforcement of copyrights in the digital environment.  It is time to broaden the impact of privacy on copyright norms by considering its impact on a broader array of issues.  These issues are as varied as those dealing with the boundaries of authorial control, the subject matter of copyright itself, the scope of fair use/fair dealing limitations, and the effectiveness of presently discredited enforcement methodologies, including most significantly the value of notice and takedown (NTD) regimes.   For example, although NTD regimes, including those under the U.S. DMCA, French Hadopi and Canadian Reform laws, have been subject to severe (and often deserved) criticism, a revised regime that adds end user privacy issues into the mix could create a viable and fair process that meets the concerns of authors, distributors and end users.    Similarly, fair use/fair dealing exceptions and limitations and distributional rights over works that raise concerns over personal privacy could be altered to strike more realistic balances between users and content holders. It is too soon to predict what balances will be struck on a domestic or international basis.  But if we do not consider privacy issues now, we will end up with a reformation of copyright that will be as empty as those of the 1990s where end users’ voices were largely excluded.  Adding privacy concerns to copyright reformation considerations will not simplify the process.  But it may provide a normative basis that will survive the next technological revolution.

A Tale of Two Codes

Associate Professor Alexandra Sims, Department of Commercial Law, the University of Auckland, New Zealand

The first code: in November 2015 Professor Adrian Sterling proposed the draft Asian Pacific Copyright Code (the “Copyright Code”). The second code: computer programmes embedded in smart contracts. Part of the Copyright Code provides that authors have the right to “prevent unauthorised copying or communication to the public”. By implication authors have no right to prevent authorised copying or communication to the public or, indeed, any other use permitted under copyright law. On the other hand, the often quoted “Code is law” may finally be coming into fruition through the use of smart contracts. Smart contracts will allow a rights holder (who may or may not be the author) to receive micropayments for any use of their work. Some of those uses will infringe copyright, in which case the requirement to pay the rights holder is reasonable, other uses will not be unauthorised under copyright law and for those uses payment is problematic. If we agree that code should not trump copyright, the ability of code to override copyright law must be limited in the Copyright Code. The question is what form should the limitations take, including whether breaches of the limitations are actionable.  

 Does the Asian Pacific Copyright Code provide satisfactory remedial rights/solutions for copyright owners in the Asia-Pacific Region?

Paul Sugden, Department of Business Law and Taxation, Monash Business School, Monash University 

This paper considers Prof Adrian Sterling’s Asian Pacific Copyright Code (“Code”). The focus of the code is recognition and harmonisation of the substantive copyright.  In the Asia Pacific region a major issue is not the existence or recognition of substantive rights in copyright but the ability to enforce a remedy in foreign jurisdictions.  The existence of rights is pyric if the rights holder is in capable of enforcing remedies with in all code member countries. The effective enforcement of remedies to provide meaning to the substantive rights is an issue that Part G “Formalities, remedies and procedure” does not address. International harmonisation of remedies and awards has not been effective particularly when WTO DS 362 USA v China held remedies are a matter of “national treatment” and the substantive provision of remedies was required to accord with Art 62 TRIPS. The WTO, TRIPS system though does not provide private rights to owners. Thus what should Part G of the Code provide for private citizens to obtain effective remedial rights within the Asia Pacific? Supporting substantive rights requires an effective egalitarian remedial system, for corporate owners and individuals alike. Within the Asia Pacific region various forms of remedies are provided and levels of reciprocity and enforcement exist, which favour corporate owners, but not individuals or small to medium enterprises.  Could the UK High Court Intellectual Property and Enterprise Court, or the Court of Justice of the European Union provide models for an Asia Pacific Region Copyright Court to provide harmonised remedies with in the region?

Licencing Open Government Data

Jyh-An Lee, Assistant Professor, Faculty of Law, The Chinese University of                Hong Kong 

Governments around the world create and collect an enormous and wide-ranging amount of data. For various social, political, and economic reasons, open data has become a popular government practice and international movement in recent years. Open data policies are widely recognized as a tool to foster government transparency and economic growth. Businesses have also developed innovative applications, products, and services based on open government data (OGD). Although OGD is a global movement, it faces a number of unsolved legal hurdles. Among others, it is critically important for participating governments to devise the most appropriate legal means of releasing data, and intellectual property (IP) licensing has been viewed as one of the main obstacles for governments in this regard. Consequently, entrepreneurs may hesitate to use or reuse government data if there is no reliable licensing or clear legal arrangement governing it. This Article focuses on the legal issues associated with OGD licenses. Different government agencies have chosen different licensing terms to manage the release of their data. This study compares current open data licenses and argues that licensing terms reflect policy considerations, which are quite different from those contemplated in business transactions or shared in typical commons communities. This Article investigates the ambiguous legal status of data together with the new wave of OGD, which concerns some fundamental IP questions not covered by, or analyzed in depth in, the current literature. Moreover, this study suggests that governments should choose or adapt OGD licenses according to their own IP regimes. For example, whether a database right is protected as a sui generis right and whether moral rights are waivable in the subject jurisdiction both lead to licensing terms being designed differently. In the end, this Article argues that the design or choice of OGD license forms an important element of information policy; governments, therefore, should make this decision in accordance with their policy goals and in compliance with their own jurisdictions’ IP laws.

Principles for a De Lega Ferenda Copyright Code

Professor Kung-Chung Liu, Institutum Iurisprudentiae Academia Sinica, Taipei Taiwan, External Director, Applied Research Center for Intellectual assets and the Law in Asia (ARCIALA), Singapore Management University, Renmin University of P.R. China, Beijing, China

Copyright law is now facing overwhelming social discontent that challenges its legitimacy. Piecemeal amendment no longer suffices. Several attempts have been made in around 2010 to search for de lega ferenda copyright law for the US, European Union and WTO: Pamela Samuelson’s Copyright Principles Project, European Copyright Code by the Wittem Group and Proposals for Amendment of TRIPS by the Intellectual Property in Transition Project . The latest trial is probably the Asian Pacific Copyright Code put forward by Professor Adrian Sterling in 2015. This paper first studies, analyzes the principles put forward by these efforts, and summarizes their common themes. It then embarks on a quest for the principles of an ideal copyright code, which might have certain general applicability. It is suggested that a comprehensive copyright code is to be desired that includes law on collecting societies and law on copyright contacts. Any further expansion of copyright must not be pursued unless the criminal sanction against non-commercial infringement has been dropped and the collective exercise of rights be implemented. Other principles for de lega ferenda copyright law should also include: strengthening provisions on collective exercise of rights, imposing certain obligation on right-holders, exempting personal use, ensuing work creators get a fair share of the economic fruits of their creation, and incorporating competition law concerns.

  Movies Piracy and the Future of Copyright Law (Indonesia Case Study)

Dr Patricia Audrey R, Lecturer, Department of International Law, Faculty of Law, University of Brawijaya Indonesia

Globalization has generated many developments in almost all aspects of human life, in particular entertainment. For example, there is a seemingly never ending supply of movies which are delivered in many different forms including VCD and DVD. However, piracy is rife in this area. Piracy is an issue as it violates intellectual property rights. Indonesia is one of the countries that have been wrestling with the issue of movie piracy. The Association of Indonesia Film Producers’ data shows that Indonesia suffers from 90% movie piracy rates. This condition is supported by the high demand of consumer that wants to access movies for little or no cost. Dealing with this issue, Indonesia has established Law number 28 year 2014 on copyright which aims to fight copyright issues, such as piracy. Indonesia as a member of WTO is also obligated to adhere to the TRIPs Agreement. Yet this requirement has not prevented the increase in movie piracy, because movie piracy is considered to be cheap entertainment and awareness and knowledge of copyright law is low. This paper attempts to analyze Indonesia’s current law in relation to the protection of movies under Law number 28 year 2014 on Copyright and what action may take to provide better protection for movies in Indonesia. The study shows that the Law number 28 year 2014 on Copyright has failed to provide sufficient protection for movies against piracy. This paper will also show that effective steps can be taken to combat piracy by applying Friedman’s effective theory of law, which are: the needs to establish operative regulation relating with movies piracy issue, supported with the cooperation of anti-piracy movie task force system and the cooperation with society to fight piracy in the movie industry by providing socialization and building understanding relating with movies piracy.

 Fair Use and Traditional Cultural Expressions in Australia

Natalie P. Stoianoff, Professor and Director, Intellectual Property Program, University of Technology Sydney 
Evana Wright, Quentin Bryce Law, Doctoral Scholar and Teaching Fellow, University of Technology Sydney

This paper analyses the ability of Indigenous communities to control the use of Traditional Cultural Expressions (TCEs) including use under ‘fair use’ exceptions to copyright infringement. TCEs include Indigenous or traditional artworks, music and songs, stories and performances and are generated collectively and cumulatively. Copyright law vests ownership of a work in the author of that work however, in the case of TCEs, this fails to recognise the rights of the Indigenous community to which the author belongs and the obligations that the author owes to their community. This obligation to community has been recognised in Australian courts as a fiduciary duty however this approach is insufficient to fully reflect the rights and responsibilities of an Indigenous community to TCEs. Both the Indigenous community and the author or creator hold the responsibility for maintaining and protecting TCEs and therefore the community has a particularly important role to play in the context of making decisions as to how a copyrighted work may be used and who may provide consent to such use. Fair use provisions provide exceptions to copyright infringement and are intended to ensure that fair access to content is available while still protecting and incentivising creators of copyright works. It is critical that any rights under fair use provisions are balanced with the rights of the Indigenous community to maintain, control and protect their cultural heritage and TCEs. In the Productivity Commission’s ‘Intellectual Property Arrangements Draft Report April 2016’, support was given for the Australian Law Reform Commission’s (ALRC) recommendation to replace the existing fair dealing exceptions in the Copyright Act 1968 (Cth) with fair use provisions.  In the ALRC report ‘Copyright and the Digital Economy’ it was proposed that the introduction of a fair use exception be evaluated with reference to certain fairness factors including ‘(a) the purpose and character of use; (b) the nature of the copyright material; (c) the amount and substantiality of the part use; and (d) the effect of the use upon the potential market for, or value of, the copyright material.’  The authors argue that any fair use provisions must be subject to the right of an Indigenous community to control the use of TCEs without consent, especially in the case of sacred works. In particular, it may be necessary to carry out broad consultation with Indigenous communities in order to provide guidance on dealing with Indigenous cultural production. In addition, any amendment should make clear that any fair use is expressly subject to the moral rights regime in Part IX Copyright Act, including, in particular, the right of integrity of authorship that works are not subject to derogatory treatment. Indeed it may be said that respect for Indigenous works is a sub-set of the broader right of integrity of authorship.