On 26/06/2009, at 7:25 PM, Gavin Melles wrote:
> It's actually very simple in Australia we're going to get hammered
> as academics if we're found in possession of and worse distributing
> copyright protected material. Simple really
As a fellow Australian researcher I have to say I don't find it
simple. Certainly I'm in possession of a great deal of copyright
protected material, being surrounded by great big piles of books and
research papers, and I distribute copies of papers to students and
colleagues as well. If you're only talking about infringing material
it doesn't get any simpler.
Section 40 of the Copyright Act 1960 says:
>> (1) A fair dealing with a literary, dramatic, musical or artistic
>> work [...] for the purpose of research or study does not constitute
>> an infringement of the copyright in the work.
http://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/s40.html
So what's fair dealing? We don't precisely know:
>> The Act does not contain a definition of the term “fair dealing”
>> because, whether or not a use is “fair” is something that needs to
>> be determined on a case by case basis
http://kirra.austlii.edu.au/au/journals/DTLJ/2003/1.html#b40
Copyright cases are judged in terms of the social contract that
underlies the existence of copyright, and revolve around commercial
damage done by an infringement.
Copyright in Australia as elsewhere is in flux. A recent high court
judgement brings a little historical context to bear:
>> 23. Undoubtedly, the classical notion of an individual author was
>> linked to the invention of printing and the technical possibilities
>> thereafter for the production of texts otherwise than by collective
>> efforts, such as those made in mediaeval monasteries. The
>> technological developments of today throw up new challenges in
>> relation to the paradigm of an individual author. A "work of joint
>> authorship", as recognised under the Act, requires that the
>> literary work in question "has been produced by the collaboration
>> of two or more authors and in which the contribution of each author
>> is not separate from the contribution of the other author or the
>> contributions of the other authors"[13]. As in other cases where
>> the facts resemble those under consideration here[14], the Weekly
>> Schedules (and the Nine Database) were the result of both a
>> collaborative effort and an evolutionary process of development,
>> involving in this instance both manpower and the use of computers.
>> However, nothing in these reasons turns on any conclusion as to the
>> precise identity of the author or authors of those works.
>> 24. In assessing the centrality of an author and authorship to the
>> overall scheme of the Act, it is worth recollecting the
>> longstanding theoretical underpinnings of copyright legislation.
>> Copyright legislation strikes a balance of competing interests and
>> competing policy considerations[15]. Relevantly, it is concerned
>> with rewarding authors of original literary works with commercial
>> benefits having regard to the fact that literary works in turn
>> benefit the reading public.
>> 25. In both its title[16] and opening recitals[17], the Statute of
>> Anne of 1709[18] echoed explicitly the emphasis on the practical or
>> utilitarian importance that certain seventeenth century
>> philosophers attached to knowledge and its encouragement in the
>> scheme of human progress[19]. The "social contract" envisaged by
>> the Statute of Anne, and still underlying the present Act, was that
>> an author could obtain a monopoly, limited in time, in return for
>> making a work available to the reading public.
http://www.austlii.edu.au/au/cases/cth/high_ct/2009/14.html
Cheers,
V.
--
Viveka Weiley, PhD Candidate
Creativity and Cognition Studios & Games Studio @ UTS
+ ACID (Australasian CRC for Interaction Design)
http://www-staff.it.uts.edu.au/~viveka/
Research blog: http://ba.viveka.id.au
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