Cyberspace Law and Policy Centre, University of New South Wales
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Tuesday, January 06, 2009


Creative Commons Asia Pacific Conference 2009

The 2009 Creative Commons Asia Pacific Conference will be hosted by the Arellano University School of Law, Manila, on the 5-6 February 2009.

Visit the Philippine Commons website for further information about the Conference, as well as other local CC developments and events.

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Friday, October 10, 2008


Untitled #1

During an Alice Springs gallery visit last Friday, Arts Minister Peter Garrett energetically hyped the great benefits that a resale royalty scheme will apparently confer on visual artists in Australia. The proposed legislation to establish a right to resale royalties for visual artists is expected to be in place by mid-2009.

The announcement that the royalty scheme will soon be a reality is undoubtedly good news for many visual artists. Royalties will be payable upon all ‘original works of graphic or plastic art’ that sell for $1000 or more, upon their second sale. The right will apply to all eligible works that are acquired after the legislation commences – whether the first acquisition or transfer of ownership was by gift, inheritance, sale, or some other means. The royalty payable will be calculated at an uncapped flat rate of 5% of the resale price.

The media release reporting Garrett’s announcement pointed to a number of advantages in the introduction of the scheme: Indigenous artists and their estates will benefit from both the significant increases in price that many works are now fetching on the secondary market, as well as the requirements for greater accountability and record-keeping that will be contained in the legislation. Visual artists in general will benefit from the fact that a right to royalties places them in the same field as artists working in the mediums of music, film, literature and so forth, where royalties are an established part of those artists’ income from their work.

Unsurprisingly, a few significant factors were conveniently glossed over during the fanfare. Firstly, the definition of what will constitute a ‘work of art’ appears to contain some substantial holes. The definition proposed will be based upon that utilised in the EU, and covers works in such media including “a painting, a collage, a drawing, a limited edition print, a sculpture, a ceramic, an item of glassware or a photograph”. Video/digital/new media are conspicuously absent from this definition, and it will be interesting to see how (or if) the right also applies to works that are sold as ‘installation’-type suites, including video, sound and so on.

Further issues are raised when the outcomes of the scheme, and precisely who will benefit, are considered. While Indigenous artists have been a particular (and deserving) focus in this aspect of the debate over introduction of the scheme, the Discussion Paper issued by DCITA in 2004 made the point that often, female artists (from all backgrounds) are underrepresented in the secondary art market (2004, p34); male artists, and especially white male artists, are by far the dominant group in terms of whose work fetches significant prices upon resale. While the $1000 minimum resale price opens the scheme to many visual artists, the recurring issue of whose art is bought and sold more often, involving arguments about gender/culture/race and the art market, are unavoidable.

The resale royalty scheme is a valuable and long-overdue right for visual artists. Re-examining how a ‘work of art’ is to be defined will be an important aspect in the drafting of the legislation, and hopefully one that is paid due attention considering the increasing interest in new/digital media in contemporary art practice. Most importantly, the scheme is certainly not a final answer to supporting the entire visual arts community, in all its diversity. As the Arts Law Centre stated in its response to the Discussion Paper:
…this is but one mechanism for increasing the income steam of artists in Australia. It does not negate the need for other support mechanisms being available to visual artists and craftspeople, such as increased funding to the visual arts and many of the other proposals outlined in the Myer Report (2004, p6).

Indeed, this blogger is waiting with interest to see which killer arts policy is next heralded by Peter Garret.

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Wednesday, June 25, 2008


Thrilling Goings-on in the Wonderful World of Copyright Law

The ACTA saga continues, with the Australian Digital Alliance's press release zeroing in on the impenetrable veil of secrecy surrounding negotiations of the proposed Agreement. This follows media coverage, articles, and blog posts - including those on The Patry Copyright Blog, LawFont and House of Commons - debating just how sketchy the few available details about the Agreement are, and wide appeals to allow some level of public consultation on the Agreement in Australia.

In other copyright news, the Attorney-General's Department has tabled its Review of Sections 47J and 110AA: Copyright Exceptions for Private Copying of Photographs and Films. The Review recommends that no amendments be made to the provisions for the time being, gesturing to the relatively short period of operation of the provisions as one reason for this.

In the UK, 'Mr Modchips' has survived a copyright stoush, with judgement in his favour handed down by the Court of Appeal (Criminal Div). It was found that any alleged copyright infringement would have taken place prior to use of the modchips. It will be interesting to see whether the judgement prompts legislative action, as occured following the decision of the somewhat similar case of Stevens v Sony in the High Court of Australia.

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Thursday, June 12, 2008


Gettin' Medieval On Yo' iPod

The prospect of wanton destruction or confiscation of iPods, laptops and other devices suspected of containing copyright-infringeing content has become increasingly real, with news of a proposed international agreement on copyright policing surfacing recently.

A leaked 'discussion paper' on the Anti-Counterfeiting Trade Agreement (ACTA) on Wikileaks, since taken up by other bloggers and mainstream news outlets, has inspired exasperation and outrage in many quarters. It is expected that a draft Agreement will be tabled at the upcoming G8 summit in Tokyo, and it reads like a copyright law wish-list drafted by large record companies and movie studios.

Under the proposed Agreement, border security and other such officials in member States would have powers of search and siezure, where they have a suspicion - and mere suspicion would likely be enough - that an electronic device holds content that might infringe copyright. As Graeme Philipson (The Age) points out, because the discretionary power would be in the hands of security guards and acted upon immediately, there would be no involvement of courts or lawyers, and little chance for appeal. The copyright owner would be removed from the process of suing for infringement upon some evidence that it has actually occured.

In effect, a bunch of security guards at an airport could decide they 'suspect' you of being an infringinger and annihilate your iPod or laptop. (The fact that this could herald a whole new genre of 'profiling', a la 'terrorist suspect of middle-eastern appearance', is another matter. How do you spot a copyright infringer?)

Of more concern is that, because the security officials would also be able to determine what is or is not 'infringing', already-weak fair use/fair dealing type provisions that still offer at least some protection would arguably go out the window completely. Just picture trying to argue with humourless airport security staff that you're carrying a disk full of burned content to use for the purpose of parody. After a long-haul flight. With the prospect of all your other devices being searched as well. And then confiscated because they don't like your attitude.

Obviously, the only people who think this sounds like a great idea have been some US-based record and movie companies. Apparently, they have been throwing 'contributions' at US Congress members to 'encourage' sponsorship of the proposed Agreement.

This all has the vague stench of cultural oppression about it - it's a piece of paper being promoted by culturally and economically dominant groups. It empowers state servants to act outside the law and any kind of due process, make judgements about those crossing a border, and perform random search/seize/destroy activities without room for argument. The US will undoubtedly be urging other nations to sign up (or else). Finally, the fact that the Agreement has been drafted with little public discussion and largely kept secret does nothing to allay the sense that there are some serious problems with the way that copyright 'patrolling' is heading.

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Friday, June 06, 2008


Pirates on the high ©s

News from the treacherous waters of online piracy:

The Australian Federation Against Copyright Theft will reportedly be launching a new campaign aimed at school-aged children and teens this month. In an effort to sell the idea that downloading copyright films and television shows is a no-no, children and young people will be encouraged to produce their own films, thereby convincing them that shelling out for a movie ticket and overpriced popcorn is a sign of moral fortitude (and isn’t that the goal of every teenager?).

On the one hand, educating young people about the intricacies of copyright law, and how this affects a fairly normalised behaviour among their peer-groups, is a positive step. Ever-increasing attempts by industry bodies to crack down on online 'piracy', including leaning on ISPs to start dispensing ‘justice’ on industry’s behalf, means that knowing about the potential risks is the best way to enable young people to make informed choices about their online activities.

AFACT also points out that it wants to convey how damaging to local film-making and industry investment illegal downloads can be. This blogger has some sympathy with that point – life in the film and TV industry, particularly in Australia, involves constant scratching for cash and other resources, for all but the biggest players. Continuing investment in the local industry (at all levels) depends on the commercial success of what are usually very expensive, highly speculative undertakings. While arguably it is foreign product that is usually downloaded, the overall profitablity of the sector (here and in the US) impacts how local studios and projects are funded. For example, dwindling attendance numbers at cinemas (which are never the most profitable businesses to start with) leads to rising ticket and concession prices, which leads to fewer screens showing a narrower range of product, leading to greater difficulty in getting local content out to the audience, equalling low regard and even lower funding for Australian film and tv.

On the other hand, however, allowing the message to be watered down to the equivalent of a patronising ‘Stealing is Bad’ is unlikely to move the target audience. Following the laughable In Tune campaign featuring successful musicians discussing life as a struggling artiste, it can only be hoped that the AFACT campaign demonstrates a more sophisticated understanding of its target audience and their concerns. The more emphasis on fact and an understanding of copyright law (and potential risks involved in its contravention), the better.

Still on the subject of incurring the wrath of copyright owners – in May, a US jury handed down a guilty verdict against a man charged with conspiracy to commit criminal copyright infringement. 25 year-old Barry Gitarts was allegedly a member of Apocalypse Production Crew, a group specialising in making pre-release copyright recordings available online as MP3 files for download. Typically, the RIAA could barely contain its glee at the verdict. The potential sentence for the unfortunate Barry includes up to 5 years imprisonment, a fine of $250,000, and making full restitution.

In this blogger's opinion, Gitarts would make a far more compelling poster-boy for any anti-piracy campaign than the Veronicas.

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Tuesday, June 03, 2008


C.C.T.V. Eye

Manchester band The Get Out Clause has been grabbing news space in recent weeks for their creative approach to living in the modern surveillance state that is the UK.

Being poor musicians with nary a cent to fund a flashy music clip, the band simply set up their gear around the city streets of Manchester and performed for the omnipresent CCTV cameras. Cunning use of the Freedom of Information Act 2000 (UK) delivered the requested footage into their hands, which they edited into a clip now doing the rounds of Youtube and various news outlets.

Aside from putting a new spin on the notion of creativity and the 'commons', this raises a few interesting copyright questions. Housemate Abi and I, via our friend Google, did some cursory investigation: according to info on the Office of Public Sector Information site,
'The supply of documents under FOI does not give the person who receives the information an automatic right to re-use the documents without obtaining the consent of the copyright holder.'
This, however, applies to information listed in a publication scheme, and a quick look over the FOI Act itself suggests that it doesn't contain express provisions about copyright in material acquired under the Act.

So does the UK government (or whoever it outsources the CCTV collection to) own the original footage - does that footage even fall under the Copyright Act in the UK?? Does any licence to 'use' the acquired material also include rebroadcasting - and where would fair dealing fit in here? Might a similar film-making method work in Australia (although use of street CCTV is somewhat less prevalent, at least for now)??

All food for thought, especially for those more au fait with UK law than this blogger...

It remains to be seen whether CCTV DIY will take off as something of a trend - if it does, brace yourselves for an onslaught of arty types 'performing' in front of a public wall or train ceiling near you.

CCTV may have more to answer for than we first thought...

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Conferences in Brisbane

Two upcoming conferences taking place in Brisbane this month (particularly good news for those wanting to escape the winter further south):

'Building an Australasian Commons'
, Creative Commons Australia
Tuesday 24 June 2008
8.30am-5pm @ State Library of Queensland, South Brisbane - and free!

'Creating Value: Between Commerce and Commons', ARC Centre of Excellence for Creative Industries and Innovation
25-27 June 2008
Brisbane Convention & Exhibition Centre

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Thursday, May 15, 2008


Cheque’s finally in the mail for (some) artists

The recently released Federal Budget held at least one item of interest for the nation’s starving artists: a planned $1.5 million to be spent on establishing a resale royalty scheme. Such a scheme has long been advocated for (by Matthew Rimmer and the Arts Law Centre, amongst many others), in order to bring Australia into line with other jurisdictions including those in Europe, and North and Latin America.

The move to ensure that visual artists benefit from appreciation in the value of their works has been seen as particularly significant for Indigenous artists. Considering the current market for Australian Indigenous artists’ works, a right to resale royalties would translate to a not-insubstantial extra income for some better-known, sought-after artists.

The interesting part will be watching how the scheme develops – at the moment, tenders to administer the scheme should be sought in the later part of this year. For example, nothing appears to have been decided about the term that the right will operate for – that is, whether it will operate on the basis of life + 70 years, or how payments to estates of deceased artists might be managed.

At the same time as K-Rudd gives, however, he also taketh away.

Funding for some other arts sectors has, of course, been slashed – for example, the regional arts fund. So, if you’re an incredibly talented, established (and probably, quite old) artist, whose work has had the benefits of time and hype to appreciate (and which actually sells)– lucky you. That royalty cheque may be in the mail sooner than you thought.

For all those struggling unknowns out there, well, there’s every chance that the program you were relying on for a kick start may be pulled.

Looks like that starving artist cliché will be around (and pulling you a beer) for a while yet.

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Tuesday, May 13, 2008


Tune out, Rock on

The music industry is once again raising its shrill voice against ‘piracy’, running a campaign featuring a video starring well-known Australian musos. Artists including members of Silverchair, the Veronicas, and Jimmy Barnes discuss the ins and outs of being a musician, under the tag line: “just paying the rent", "not living like a rock star".

Musos who might actually be having difficulty paying their rent were notably absent from the credits – presumably they couldn’t get someone else to fill in for them down at the café that day, or were too busy uploading their latest single onto Trig.

Unsurprisingly, the campaign has become controversial, inciting much media commentary (check some out here, and here) and raising the ire of Frenzal Rhomb guitarist Lindsay McDougall. McDougall originally appeared in the video, and now says it was on false pretences. According to Crikey, he was

“furious at being ‘lumped in with this witch hunt’ and that he had been ‘completely taken out of context and defamed’ by the Australian music industry, which funded the video. He said he was told the 10-minute film, which is being distributed for free to all high schools in Australia, was about trying to survive as an Australian musician and no one mentioned the video would be used as part of an anti-piracy campaign.” (Crikey)

The original clip including his input has been removed, but is archived.

And what would a debate involving artists’ rights be without a manifesto? ‘Tune out’ has obligingly penned one in response to the In Tune campaign.

Perhaps in an effort to appear marginally down-with-the-kids, the industry campaign page has this pseudo-licence, below, in its footer. It is in some ways similar to a ‘Free for Education’- style licence, and/or may invite the false expectation that they support a sort of personal "fair use" model in some circumstances:

“In Tune was produced with the support of the Australian music industry.
In Tune can be used for personal use and as a free non-commercial
educational resource. For more info, email:"

So, there you have it – the kid drummer from Operator Please thinks MySpace is pretty cool, Lindsay McDougall continues to stick it to the Man, and the Veronicas look flawless even when they’re concerned and slightly annoyed.

Thank goodness for free (for educational purposes only) online videos.

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