Copyright Law and the Creative Industries

Research Symposium, QUT Faculty of Law, 29 October 2020

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QUT Faculty of Law

Thursday, 29 October 2020

10:00am to 3:00pm

Z1064, Gibson Room, Level 10, Z Block

QUT Gardens Point Campus

OVERVIEW

This event will focus upon copyright law and the creative industries. It will bring together legal scholars, policy-makers, and practitioners; creative artists from an array of disciplines; as well as theorists of new media and digital technologies. To begin with, this event will consider the origins of copyright law, policy, and practice. The speakers will explore their recent historical work about the foundation and evolution of copyright law and policy.

This symposium will explore how copyright law has affected a range of cultural practitioners, spectrum of creative industries. There will be a discussion of copyright law and literary works — looking at recent controversies over shadow texts. There will be a contemplation of the mixed precedents in respect of copyright law and appropriation art. There will be an analysis of litigation over copyright law and musical works — in light of the Blurred Lines decision. There will also be a discussion of how copyright law has operated in practice in respect of the performing arts, cinematographic films, and television broadcasts.

This symposium will consider to what extent Australian copyright law has kept up with new information technologies, and digital media. There will be a re-evaluation of the Digital Agenda Act, and its operation over the past 20 years. There will be a consideration of the impact of new laws in respect of site-blocking and search-filtering. The mega-litigation over Google Books, YouTube, and other Alphabet entities will be considered. As part of the symposium, there will be a consideration of whether our copyright laws are fit for purpose — given new developments in 3d printing, the Internet of Things, artificial intelligence, and robotics.

To finish up with, this event will examine copyright law and various forms of cultural rights. It will look at twenty years of moral rights protection in Australia — and the relative performance of the regime. It will consider the development of performers rights in respect of audio and audio-visual works. It will evaluate the operation of the right of resale for visual artists in Australia. It will finally investigate what progress — if any — has been made towards the protection of Indigenous intellectual property in Australia, and the implementation of the UN Declaration on the Rights of Indigenous Peoples 2007.

ACKNOWLEDGEMENT OF TRADITIONAL OWNERS

In keeping with the spirit of Reconciliation, we acknowledge the Traditional Owners of the lands where QUT now stands — and recognise that these have always been places of teaching and learning.

We wish to pay respect to their Elders — past, present and emerging — and acknowledge the important role Aboriginal and Torres Strait Islander people continue to play within the QUT community.

Session 1. Copyright Law and Creative Arts

Covert and Overt Plagiarism: On Poetry and Theft

Associate Professor Sarah Holland-Batt

Dr Ella Jeffery

Abstract

In 1920, T.S. Eliot delivered an axiomatic pronouncement which has shaped how most poets have thought about poetry and originality for the last century: “Immature poets imitate; mature poets steal,” he wrote in The Sacred Wood, “bad poets deface what they take, and good poets make it into something better, or at least something different.” A hundred years on, this paper returns to Eliot’s dictum to evaluate current thinking about poetry and theft in the literary field, focussing on recent case studies of “uncreative writing” — wherein theft is overt and central to the poet’s creative enterprise, as in forms including the cento, found poem, erasure poem, remix or the readymade — as well as recent poetry plagiarism scandals, wherein theft is covert and concealed. In doing so, we seek to define and make explicit the often tacit conventions in contemporary literary practice relating to appropriation and plagiarism from the perspective of the poet-practitioner. We will argue that disclosure and documentation — through epigraphs, notes and other means of acknowledgement — are central to the so-called “cento defence,” allowing the poet to present the work of others as their own, whereas alterations, especially minor substitutions, and the absence of disclosure, are central to a poetic conception of plagiarism.

Biographies

Associate Professor Sarah Holland-Batt is an award-winning poet, editor and critic whose most recent book, The Hazards, won the 2016 Prime Minister’s Literary Award for Poetry. Her honours include fellowships from Yaddo and MacDowell colonies in the United States, a Chateau de Lavigny Fellowship in Switzerland, a Hawthornden Fellowship in Scotland, and the Australia Council Literature Residency at the B.R. Whiting Studio in Rome, among others. In 2016 she was the first poet to be awarded a Sidney Myer Creative Fellowship, which recognises “outstanding talent and exceptional artistic courage.” Among many leadership roles in the literary sector, she has served as a judge of the Prime Minister’s Literary Awards, and is presently Chair of Australian Book Review. In 2020, supported by the Judith Neilson Institute for Journalism and Ideas and the Copyright Agency, she was appointed to write a weekly poetry column, Poet’s Voice, for The Australian.

Dr Ella Jeffery is a poet, editor and academic. Her debut collection of poems, Dead Bolt, won the Puncher & Wattmann Prize for a First Book of Poems and was published by the press in 2020. In 2019 she received the Queensland Premier’s Young Publishers and Writers Award, and the Mick Dark Fellowship for Environmental Writing. Her poetry has appeared widely in journals and anthologies including Best Australian Poems, Meanjin, Griffith Review and Southerly. She co-edits Stilts Journal, a triannual digital poetry journal publishing poets from around Australia, and is a Lecturer in Creative Writing at Queensland University of Technology in Brisbane.

The Exploitation of Art and Culture and the Law

Stephanie Parkin

Abstract

This Masters’ research focuses on the 2017 House of Representatives Standing Committee on Indigenous Affairs Parliamentary Inquiry into the ‘growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products for sale across Australia’. The thesis explores and gives priority to the evidence submitted by Aboriginal and Torres Strait Islander participants to the Inquiry and positions Inauthentic Art and Craft as a product of colonial occupation and power. The thesis investigates a number of relevant fields of intellectual property law. Such analysis considers the question: ‘How can the law protect Aboriginal cultural expression from exploitation?’ This session will also briefly cover the current issues and debate surrounding copyright and the Aboriginal flag.

Biography

Stephanie Parkin belongs to the Quandamooka People of Minjerribah (North Stradbroke Island). With a background in intellectual property law, Stephanie completed a Masters of Philosophy at the QUT Law Faculty researching the issue of inauthentic Aboriginal art and craft products in the souvenir market. Stephanie is the Chair of the Indigenous Art Code which promotes fair and ethical trading between Aboriginal and Torres Strait Islander artists and art dealers, and also works part time at the Copyright Agency.

Session 2 — Copyright Law and Performance

Find the Cost of Freedom — Balancing Rights in a World Out of Balance

Dr John Willsteed

Abstract

How can the law help or hinder the processes of creation, from the perspective of a musician AND academic? Copyright law purports to protect the product, and therefore the creator, from theft or misuse. But this can be at odds with the very notion of creation, in which we borrow from the past to make the present, and to influence the future.

Biography

John Willsteed remembers most of a long and varied career as a musician, travelling the world and leaving a legacy of hummable bass-lines. He has performed with many iconic Australian acts including The Go-Betweens, The Apartments, The Riptides and Ed Kuepper. He has been a guitarist in award winning Brisbane band Halfway since 2010. He is a graduate of the AFTRS, Griffith University and QUT, and has an abiding interest in the musical history of his hometown (Brisbane) and the ways in which it might be told. As a sound editor and composer he has received national and international awards including three AFI Awards for sound. Willsteed also embodies a deep commitment to the wider concept and reality of the creative industries. He has acted on the board of QPIX and was state representative of the Australian Screen Sound Guild. He has been president of Feral Arts management committee since 2005, and currently serves on the board of the Queensland Music Festival. He has been a teacher at private film schools, TAFE and universities since 2000 and his current role at QUT is Senior Lecturer in the School of Creative Practice.

‘Don’t Let This Flop’: TikTok Creators’ Strategic Improprieties

D. Bondy Valdovinos Kaye (Queensland University of Technology) and Dr Crystal Abidin (Curtin University)

Abstract

TikTok is a short-video digital media platform that encourages users to create and share audio-visual content between 15–60 seconds long. A key appeal of TikTok is its platform features that facilitate seamless content creation through innovative re-use. With a few taps on a mobile device, users can create their own videos using the same visual formats or audio clips from the video they were previously watching, through practices of mimicry that have been studied as “templatability” (Leaver, Highfield, & Abidin, 2020). TikTok creators who aspire to amplify their following and visibility often study the algorithmically curated homepage (‘For You Page’) and engage in strategies to increase their chances of appearing on it, often by siphoning attention and gamifying the TikTok algorithm. In other cases, they involve deliberately copying and misattributing trending video and audio content using TikTok’s platform features.

The features and affordances of social media platforms can ‘nudge’ users and creators towards IP infringement. However, this rarely leads to any formal legal action in non-commercial User Generated Content UGC) settings (Tan, 2018). Rather than focus on commercial exploitation of UGC, previous studies suggest that creators prioritise giving credit — or the moral right of attribution — as increasingly important on digital platforms such as Deviant Art (Perkel, 2016), Instagram (Meese & Hagedorn, 2019) and YouTube (Pappalardo & Meese, 2019). At present, the features and affordances of TikTok offer limited avenues for commercialization but valorises creators of popular video or audio challenges and memes (Kaye, 2020). Creators want to go viral on TikTok and some will do so by catapulting or feeding off the success of others.

Biography

D. Bondy Valdovinos Kaye is the Editorial Assistant for Media Industries Journal, a PhD candidate in the Digital Media Research Centre at Queensland University of Technology, and an avid musician. His research interests include digital music, cultural policy, and platform studies. He holds a Bachelor’s of Arts in Psychology and a Master’s of Science in Mass Communications from Kansas State University, USA.

Session 3 Copyright Law and Culture

Open GLAM: Copyright Law, 3D Printing, and Cultural Heritage

Professor Matthew Rimmer

Abstract

This presentation provides an account of empirical research in respect of copyright law, 3D Printing, and cultural institutions — such as galleries, libraries, archives, and museums. It considers the work of Michael Weinberg and the Engelberg Center on Innovation Law and Policy at the New York University School of Law in respect of the Open GLAM Movement. It examines efforts to improve upon the use of open access 3D printing by the GLAM sector. This paper explores the use of makerspaces by libraries. It looks at the networked approach of the Amsterdam Library system. This paper considers the use of 3D printing to make artistic works accessible for those with disabilities. In particular, it considers Klimt’s The Kiss at the Belvedere Museum in Austria, and its use of scanning and 3D printing of the Gustave Klimt painting The Kiss. This paper focuses upon the digital rendering of the bust of Nefertiti, generated from the Neues Museum’s 3D scan in Germany. It considers the role of 3D printing in the debate over repatriation of cultural artefacts and heritage from the British Museum. This paper focuses on the project Scan the World. It looks at the efforts of the Smithsonian to use Creative Commons licenses to allow for open access to its collection — including 3D scanning and 3D printing . This paper examines the support of the Creative Commons movement for the Free Palmyra Project. It looks at the Free Palmyra project, and the efforts to restore pieces of cultural heritage lost in armed conflict.

Biography

Dr Matthew Rimmer is a Professor in Intellectual Property and Innovation Law at the Faculty of Law, at the Queensland University of Technology (QUT). He has published widely on copyright law and information technology, patent law and biotechnology, access to medicines, plain packaging of tobacco products, intellectual property and climate change, Indigenous Intellectual Property, and intellectual property and trade. He is undertaking research on intellectual property and 3D printing; the regulation of robotics and artificial intelligence; and intellectual property and public health (particularly looking at the coronavirus COVID-19). His work is archived at QUT ePrints, SSRN Abstracts, Bepress Selected Works, and Open Science Framework.

Creativity, Culture, Copyright and COVID-19

Elliott Bledsoe

Abstract

Amidst the closure of arts and cultural venues and cancellation of arts events early in the coronavirus pandemic many artists and cultural organisations shifted to providing access to creative works and content online. This increased reliance on digital technologies to connect with audiences has exposed the limitations of the Copyright Act for creators, institutions and audiences.

Biography

Elliott Bledsoe is a Copyright Officer, with the Australian Digital Alliance and Australian Libraries Copyright Committee. Elliott Bledsoe has more than 10-years experience in copyright. He advocates for the public interest in copyright and for increased copyright literacy in the arts and cultural sectors. Currently he works part-time with Australian Digital Alliance and the Australian Libraries Copyright Committee. He is also the Co-lead of the Australian chapter of Creative Commons.

Session 4 Intellectual Property and the Right to Repair

Copyright and the Right to Repair

Professor Leanne Wiseman and Dr Kanchana Kariyawasam

Abstract

The inability to repair and modify consumer goods is increasingly and globally important as countries transition to Circular Economies. The inability of Australians to repair their smart goods or to access repair or service information has a significant impact on not only the Australian economy, but also its economic future. At the heart of legal and regulatory barriers to repair are the IP rights exerted by the manufactures. This paper will focus on the role that copyright plays in inhibiting consumer’s ability to repair their goods.

Manufacturers of digital enabled goods, such as our smart phones, smart watches and the myriad of smart devices that now inhabit our homes, use copyright in the computer software to ‘lock’ up consumer goods. They rely upon the copyright scheme of technological protection measures (TPMs), developed in the 1990s to protect music, film and other digital works to prohibit access to the underlying software programs that are now embedded in everyday smart consumables. In addition to TPMs, copyright owners are using copyright law to deny access to basic repair information in product manuals. This has attracted much recent attention, particularly in relation to access to repair information for ventilators, that have been so urgently needed during the Covid 19 crisis.

This paper will explore how copyright owner’s excessive control over the owner’s ability to repair and modify physical goods has given rise to the international right to repair movement. In so doing, it will consider the different regulatory approaches being taken to the Right to Repair internationally, and explores how reform of IP, particularly copyright law, could rebalance the competing demands of private incentives for product and technology innovation and the public’s concerns over access to goods that have digital technologies embedded within them.

Biographies

Professor Leanne Wiseman is a Professor of Intellectual Property Law at the Griffith Law School, Griffith University. Her research addresses critical questions about the role intellectual property plays in hindering or enabling access to new technologies. She has published widely on intellectual property, in particular, copyright law, and its intersection with new digital technologies. Her current research focus is on intellectual property and the right to repair and legal implications of the digitalisation occurring in consumables, motor vehicles and agricultural machinery.

Dr Kanchana Kariyawasam is a Senior Lecturer in Griffith Business School at Griffith University. Kanchana’s primary research interests lie in the field of intellectual property (IP) law and her publications are in the fields of intellectual property and consumer Law. Kanchana completed her PhD in IP Law at Griffith and holds Masters Degree in IP from the University of Queensland. She has published widely on copyright law and information technology, patent law and biotechnology, and access to medicines.

The Right to Repair in Australia: Patent Law and 3D Printing in a Circular Economy

Professor Matthew Rimmer

Abstract

In light of the larger international debate about sustainable development and the circular economy, this paper considers patent law and the right to repair in Australia. It provides a critical evaluation of the decision of the Full Court of the Federal Court in Calidad Pty Ltd v. Seiko Epson Corporation [2019] FCAFC 115 — as well as a preview of the High Court of Australia consideration of the matter. It highlights the divergence between the judicial approach of the Full Court of the Federal Court, and the policy approach taken by the Productivity Commission in respect of patent law, the right to repair, and competition policy. As a result of the outcome in this decision, it is recommended that there is a need to provide for greater recognition of the right to repair under patent law. In the spirit of modernising Australia’s regime, this paper makes a number of recommendations for patent law reform — particularly in light of 2D printing, 3D printing, additive manufacturing, and digital fabrication. It calls upon the legal system to embody some of the ideals, which have been embedded in the Maker’s Bill of Rights, and the iFixit Repair Manifesto.

Biography

Dr Matthew Rimmer is a Professor in Intellectual Property and Innovation Law at the Faculty of Law, at the Queensland University of Technology (QUT). He has published widely on copyright law and information technology, patent law and biotechnology, access to medicines, plain packaging of tobacco products, intellectual property and climate change, Indigenous Intellectual Property, and intellectual property and trade. He is undertaking research on intellectual property and 3D printing; the regulation of robotics and artificial intelligence; and intellectual property and public health (particularly looking at the coronavirus COVID-19). His work is archived at QUT ePrints, SSRN Abstracts, Bepress Selected Works, and Open Science Framework.

Session 5. Copyright Law and New Technologies

Riddles Wrapped in Enigmas within Mysteries: AI, Secrets, Online Games and Copyright

Dr. Bruce Arnold

Abstract

Networked computer games are a vibrant creative industry. In the emerging attention economy they may be as financially and culturally significant as the movies. Increasingly the user experience in those games will be determined by artificial intelligence founded on interrogation of billions of daily interactions with players across the globe. This presentation explores the interaction of artificial intelligence, copyright, trade secrets and contract in new world of massive multiplayer online games such as Animal Crossing. It argues that the richest experiences in that world will be scripted by AI, not auteurs. Do we need a new copyright paradigm?

Biography

Dr Bruce Baer Arnold teaches technology and intellectual property law at the University of Canberra. He has written extensively on data protection and the regulation of disruptive technologies. He has a particular interest in robotics and artificial intelligence, including the accountability of algorithmic decision-making and personhood for AI. He is currently writing a book on law, culture and markets around the Animal Crossing New Horizons game platform.

GPT-3 — Copyright Law and Power

Dr Michael Guihot

Abstract

Open AI’s third generation Generative Pre-trained Transformer is a language model that uses machine learning to generate text. The latest model is significantly better performing than GPT-2, not because of advances in algorithms, but because of the large amounts of data upon which it was trained. This raises issues of copyright in the original data, but also raises issues about copyright in GPT-3’s output.

Biography

Michael Guihot’s research investigates the intersection of new technology and law, including the regulation of artificial intelligence, and the impact of new technologies on power and governance. My current research investigates how changes in global power structures affect private and public governance, and the impact of new technology on legal institutions. I have published in international journals on the regulation of artificial intelligence, am co-author of the book Artificial Intelligence, Robots and the Law.

Lady Ada: Limor Fried, Adafruit Industries, Intellectual Property and Open Source Hardware

Professor Matthew Rimmer

Abstract

This paper provides a profile of Limor Fried of Adafruit Industries — as an advocate of open source hardware, and a policy campaigner for intellectual property law reform. In terms of methodology, the work draws upon the techniques of biographical life writing, the media corporate case studies and the open source community mapping. This paper considers the copyright challenges for open source hardware — particularly with the Supreme Court of the United States decision on copyright subsistence in Star Athletica LLC. v. Varsity Brands Inc., and ongoing conflicts over technological protection measures. It reviews the trademark disputes of Adafruit Industries — looking at the matter of Fried v. Linco Inc. It explores the intervention of the Open Source Hardware Association in the design patent dispute in Luxembourg v. Home Expressions Inc. It analyses how Adafruit Industries has engaged in defensive patenting, and pushed for patent law reform with President Barack Obama. It finally considers the tensions between open source hardware and enhanced protection of trade secrets. The conclusion considers how open source hardware advocates such as Limor Fried can play an important role in intellectual property law reform in the future. It also explores current and future challenges for Adafruit Industries and open source hardware — including the current coronavirus COVID-19 public health crisis.

Biography

Dr Matthew Rimmer is a Professor in Intellectual Property and Innovation Law at the Faculty of Law, at the Queensland University of Technology (QUT). He has published widely on copyright law and information technology, patent law and biotechnology, access to medicines, plain packaging of tobacco products, intellectual property and climate change, Indigenous Intellectual Property, and intellectual property and trade. He is undertaking research on intellectual property and 3D printing; the regulation of robotics and artificial intelligence; and intellectual property and public health (particularly looking at the coronavirus COVID-19). His work is archived at QUT ePrints, SSRN Abstracts, Bepress Selected Works, and Open Science Framework.

Absentees

Unfortunately, due to unforeseen contingencies, Katya Henry and Dr Anne Matthew were unable to perform their presentations at the conference. We hope to provide a platform for their exciting and interesting talks at a future event.

29 October 2020 — Copyright Law and the Creative Industries

Copyright Law and the Creative Industries, Research Symposium, QUT Faculty of Law, 29 October 2020, https://drrimmer.medium.com/copyright-law-and-the-creative-industries-c86aee08d834

Session 1 — Copyright Law and the Creative Arts

1. Associate Professor Sarah Holland-Batt and Dr Ella Jeffery, ‘Covert and Overt Plagiarism: On Poetry and Theft’, QUT Faculty of Law, 29 October 2020, https://t.co/ZEAJPeOwVW?amp=1

2. Stephanie Parkin, ‘The Exploitation of Art and Culture and the Law’, QUT Faculty of Law, 29 October 2020, https://t.co/rvXqVHd0xZ?amp=1

Session 2 — Copyright Law and Performance

3. Dr John Willsteed, ‘Find the Cost of Freedom — Balancing Rights in a World Out of Balance’, QUT Faculty of Law, 29 October 2020, https://t.co/M1N6ZEW5EF?amp=1

4. D. Bondy Valdovinos Kaye and Dr Crystal Abidin, ‘Don’t let this Flop’: TikTok Creators’ Strategic Improprieties’, QUT Faculty of Law, 29 October 2020, https://t.co/tNYjb4oAg9?amp=1

Session 3 — Copyright Law and Culture

5. Professor Matthew Rimmer, ‘Open GLAM: Copyright Law, 3D Printing, and Cultural Heritage’, QUT Faculty of Law, 29 October 2020, https://t.co/9gD9Ex1i0E?amp=1

6. Elliott Bledsoe, ‘Creativity, Culture, Copyright and COVID-19’, QUT Faculty of Law, 29 October 2020, https://t.co/Jf6wJ40iGw?amp=1

Session 4 — Intellectual Property and the Right to Repair

7. Professor Leanne Wiseman and Dr Kanchana Kariyawasam, ‘Copyright and the Right to Repair’, QUT Faculty of Law, 29 October 2020, https://t.co/tpinaiB2bF?amp=1

8. Professor Matthew Rimmer. ‘The Right to Repair in Australia: Patent Law and 3D Printing in a Circular Economy’, QUT Faculty of Law, 29 October 2020, https://t.co/w8pjmuC8Ks?amp=1

Session 5 — Copyright Law and New Technologies

9. Dr. Bruce Arnold, ‘Riddles Wrapped in Enigmas within Mysteries: AI, Secrets, Online Games and Copyright’ QUT Faculty of Law, 29 October 2020, https://t.co/9WO9EbEERR?amp=1

10. Dr Michael Guihot, ‘GPT-3 — Copyright Law and Power’, QUT Faculty of Law, 29 October 2020, https://t.co/5h9VPxGszO?amp=1

11. Professor Matthew Rimmer, ‘Lady Ada: Limor Fried, Adafruit Industries, Intellectual Property, and Open Source Hardware’, QUT Faculty of Law, 29 October 2020, https://t.co/lZa5Xz57jN?amp=1

Credits

Front Page Picture — QUT Art Museum — http://www.artmuseum.qut.edu.au/