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Abstract:
Digital communications technologies have led to fundamental changes in the ways that cultural institutions fulfil their public missions of access, preservation, research, and education. Institutions are developing publicly-accessible websites in which users can visit online exhibitions, search collection databases, access images of collection items, and in some cases create their own digital content. Digitization, however, also raises the possibility of copyright infringement. “Copyright and Digitization” aims to assist understanding and compliance with copyright law across libraries, archives, and museums. It discusses the exclusive rights of the copyright owner, the major exemptions used by cultural heritage institutions, and stresses the importance of “risk assessment” when conducting any digitization project. It also includes two cases studies, examining digitizing oral histories and student work. As well as free availability here, print copies are available for purchase via www.createspace.com/3405063.

copyright, cultural institutions, public access, online exhibitions, copyright and digitization

Abstract:
This article reports on a comparative content analysis of more than 1,400 Australian and US newspaper articles. The study suggests that in the US - where defamation plaintiffs face much heavier burdens than under Australian law - defamatory allegations are made more frequently against both political and corporate actors than in Australia. The US articles contained apparently defamatory allegations at nearly three times the rate of the Australian sample. In particular, the Australian media appeared to be less comfortable making allegations in relation to corporate affairs than its US counterpart. In addition, some US articles included far more extreme commentary than the Australian sample, which suggests a less restrained style of public debate may be fostered under US law. Through introducing comparative content analysis to Australian media law research, the article supports the idea that Anglo-Australian defamation law has a chilling effect media speech.

defamation, Australia, United States, media, newspaper, chilling effect of defamation law, content analysis, comparative, defamatory allegations, media speech

Abstract:
Celebrity has been a notable focus in recent media and cultural research, with work considering its textual construction as well as its production, circulation and consumption. Concurrently, celebrities' claims for privacy from certain media publications have been important in English, European and New Zealand case law - law which has significance beyond those jurisdictions and has received considerable Australian attention from lawyers and commentators. In light of themes about celebrity from cultural and media research, this article examines an illustrative legal claim by celebrities where privacy was sought from particular media coverage; namely, the long running Douglas v Hello! litigation. The authors explore ideas about the celebrity as a commodity and the treatment of photographs in privacy-related claims, and draw out two points. The first concerns legal awareness of what could be called the celebrity industry and its role in the construction and circulation of media content. In some situations, these industrial aspects of celebrity may carry doctrinal weight for issues such as when reasonable expectations of privacy exist. The second raises matters about the uses of celebrity content in terms of subjectivity - uses which are suggested in contemporary media and cultural research - and the role of privacy itself within identity formation, which has been raised recently within Australian legal commentary on privacy.

celebrity, privacy, law, publicity, media, culture, commodity, photograph

Abstract:
The development of new digital technologies has led to fundamental changes in the ways that copyright works are created, accessed and distributed.

These developments have enhanced the ability of cultural institutions to fulfill their public interest missions of access, preservation, research and education. For instance, many institutions are developing publicly-accessible websites in which users can visit online exhibitions, search collection databases, access images of collection items and - in some cases - create their own digital content. Many internal activities are also facilitated by digital technologies, including collection management, preservation activities, exhibition planning, and record keeping for incoming and outgoing loans.

The increased use of digital technologies also raises many logistical and administrative issues, including in relation to copyright. Institutions are aware that digitisation raises the possibility of copyright infringement, and are implementing measures to ensure that staff knowledge of copyright is up to date, and that systems are implemented to facilitate copyright compliance.

These guidelines are intended to assist understanding and compliance with copyright law.

copyright, digitisation, digital, collection, art, gallery, long, library, museum, cultural, institution, technology, guideline, compliance, comply

Abstract:
This book, Defamation: Comparative Law and Practice, investigates defamation law and litigation practice in Australia, England and the US through original empirical research. It focuses on two themes. The first examines the central role that a publication's meaning plays in defamation law and practice, especially in England and Australia. The second considers the ways in which media speech is protected by qualified privilege in England and Australia, and by the constitutional rules that have developed since New York Times v Sullivan in the US.

Based on extensive interviews with expert litigators and analysis of court files, the book provides legal analysis and empirical context that is relevant to understanding important recent changes to defamation law, which have occurred in a number of Commonwealth countries, and compares them with the central constitutional developments to US defamation law since the 1960s. It provides a detailed explanation of key issues that are most often at stake in defamation disputes in each country. The contents and introductory chapter are available here. Further information is available at the author's home page.

Defamation/Libel, Media Law, Comparative Law, Empirical Legal Studies

Abstract:
This broad-ranging examination of privacy law considers the challenges faced by the law in changing technological, commercial and social environments. The book encompasses three overlapping areas of analysis: privacy protection under the general law; legislative measures for data protection in digital communications networks; and the influence of transnational agreements and other pressures toward harmonised privacy standards. Leading, internationally recognised authors discuss developments across these three areas in the United Kingdom, Europe, the United States, APEC (the forum for Asia-Pacific Economic Cooperation), Australia and New Zealand. Chapters draw on doctrinal and historical analysis of case law, theoretical approaches to both freedom of speech and privacy, and the interaction of law and communications technologies, in order to examine present and future challenges to law's engagement with privacy. The table of contents and first chapter are available here.

privacy, technology, media, law, data protection, digital, transnational, UK, comparative, US, Europe, APEC, Australia, New Zealand, freedom of speech

Abstract:
How Australian copyright law deals with Aboriginal painting has changed since the late 1980s. Prominent cases have moved the law towards greater protection and offered some recognition of Aboriginal understandings of their cultural heritage. This paper focuses on writing about copyright and Aboriginal art and comments on four issues that may warrant closer attention: copyright, cultural heritage and self-determination; the criteria for copyright protection; appropriation of art works; and the 'common place' of law and Aboriginal art. The first point examines the value of adding ideas from cultural heritage into writing about copyright. It suggests a tension with heritage may be present in some copyright writing, and that an underlying motif for both areas is self-determination. The second section examines the criteria for copyright protection. It questions a continued concern in some copyright writing with the requirement of originality. And it explores an apparent lack of appreciation of the significance of recent case law in some of the literature, especially from North America. The third section considers appropriation of art works, both as a narrower concept that may infringe copyright and more widely. It considers how the cultural value of a work could be drawn on in arguments to limit appropriation. The final section argues that continuing to rely on copyright law, if specific indigenous cultural legislation is not achievable politically, may not be so serious a limitation as is sometimes suggested. In the paper, attention is centred on Australian Aboriginal painting and legal writing about it from Australia and internationally. References are made to the somewhat similar legal and political situations of indigenous people in Canada and the US, and some contrasts are noted with the situations in Africa and elsewhere.

The paper concludes with the thought that there may be little point debating the merits of copyright (and other law) reform. It is over twenty years since high-level reform reports have emerged in Australia. They have suggested that copyright does not provide adequate protection to indigenous cultural heritage. The law, however, has not changed in response - at least it has not changed in terms of explicit law reform. As far as case law is concerned, a series of copyright cases has strengthened protection, and native title litigation in Australia has revolutionised the underlying framework. Through these developments, copyright protection of Aboriginal art has gained a greater place in legal discourse. But it seems likely that the perception has changed even more in other areas of society. What could be called the 'common place' of copyright law and Aboriginal art may be one of the most important changes in Australia since the 1980s. At one time, infringers of indigenous cultural heritage genuinely may not have considered that any legal protection could exist for the material they used. Other appropriators may have made a pragmatic decision based on the perceived unlikelihood of indigenous legal action. Now, neither approach could be nearly so likely.

art, copyright, heritage, Australian Aboriginal art

Abstract:
Digitisation and communications technologies offer new ways for cultural institutions to further their missions of preservation, research, education, and public access. But digitisation also offers substantial challenges to museums, galleries, and libraries, including the potential for creation and dissemination of digital works to constitute copyright infringement. Digital technologies also mean copyright law is undergoing its most significant period of change in decades. Digitisation dramatically alters the way copyright works are accessed and distributed. The balance between copyright owners' rights and the public interest in access to copyright material is a key issue in digitisation. Cultural institutions are an excellent site for investigating policy issues regarding digitisation because they are important creators, users, and disseminators of digital copyright material.

This paper analyses Australian copyright law in relation to digitisation and cultural institutions, noting the law's complexity and focusing on provisions that have received little judicial and academic attention to date. It explores difficulties that are likely to face cultural institutions in understanding and complying with the law, and considers options in terms of institutional practices and copyright law reform. The research is part of a joint project of the CMCL and IPRIA, instigated and supported by Museums Australia. It is primarily funded by the Australian Research Council (LP0348534) along with six Australian cultural institutions: Art Gallery of NSW, Australian Centre for the Moving Image, Australian War Memorial, Museum Victoria, National Museum of Australia, State Library of Victoria.

digitisation, copyright, cultural institutions, Australia, museum, art gallery, preservation, library, public interest, Museums Australia, Art Gallery of NSW, National Museum of Australia, State Library of Victoria, Australian War Memorial, Australian Centre for the Moving Image, Museum Victoria

Abstract:
Digital technologies are leading to fundamental changes in the ways that copyright works are created, accessed and distributed. These changes are significant for cultural institutions' missions of access, preservation, research and education. Digital technologies also raise many administrative issues, including in relation to copyright. These short guidelines aim to assist understanding and compliance with copyright law within the sector, and supplement the authors' full Guidelines for Digitisation.

copyright, law, cultural institution, library, museum, film art, gallery, short, compliance, comply, culture, digitisation, digital

Abstract:
Statutory limitations periods can bar claims to recover stolen artworks. In doing this, Australian limitations law generally does not consider the conduct of either a dispossessed owner or current possessor of a stolen work. This paper compares Australian, English and US law on the issue and argues that recent reform suggestions should be extended so Australian law does encourage all art market actors to be diligent in their dealings with works that may have been stolen.

comparative law, property law

Abstract:
Legal and media commentators frequently argue that defamation law 'chills' media speech. But critical questions remain about whether a chilling effect exists. In particular, when media professionals produce news, are they restricted by defamation concerns? And if so, how? These questions are addressed in this paper, which provides an analysis of interview based fieldwork into news production practices and defamation law at major print media organisations in the US and Australia. On the basis of this analysis, we make three arguments. First, defamation law is perceived to have a more direct, and potentially chilling effect, in Australia. Second, despite this difference, the organisational processes for managing news production in the context of defamation law are similar. Third, journalists, editors and legal advisors actively negotiate organisational responses to defamation law. Overall, the research indicates that defamation law does not operate as a straightforward constraint, but rather through interactions and negotiations between media professionals and their legal advisors.

defamation, journalism, journalistic practice, media professionals, Australia, United States, media, news production

Abstract:
Australian and English case law has developed qualified privilege defences that are available to the media and appear to protect more political or public interest speech than traditional defamation law. This article draws on judicial decisions and qualitative research into defamation litigation to examine the defences' scope, strength and practicality in litigation. England's Reynolds privilege emerges as a well-supported, relatively strong, flexible and innovative defence, especially compared with Australia's narrower and weaker privileges under Lange and New South Wales legislation. The research strongly supports the further development of Australian privilege defences, as well as more careful consideration of judge and jury roles in each country. A closer understanding of Reynolds offers important benefits for protecting the publication of public interest news and commentary, and it is particularly useful in light of recent, and proposed, Australian law reforms.

Lange, Reynolds, qualified privilege, defamation, law, Australia, English

Abstract:
Empirical research into the digitisation of collections in Australian museums, galleries, libraries and archives suggests that copyright law affects what material is digitised and how it is made accessible. This article analyses digitisation within cultural institutions in light of the Digital Agenda reforms of 2000 and the Copyright Amendment Act 2006 (Cth). Copyright law can have a significant impact on digitisation practices, particularly with regard to digitising audiovisual material and orphan works, and in relation to digital access: that is, the public availability of digital content. Research suggests that, for the Copyright Act 1968 (Cth) (Copyright Act) to work on its own terms, some small-scale reforms are required. However, the research also underscores larger questions about the sustainability of existing copyright law and practice. Provisions in the Copyright Amendment Act 2006 (Cth) may improve the situation, depending on the operation of the new flexible dealing exception for the sector in s 200AB. This suggests the need for continued attention and debate on copyright exceptions and the possibility of new collective licensing models.

digital, copyright, access, digitisation, museum, gallery, library, archive, Australia

Abstract:
The basis of the cause of action in defamation varies between different Australian jurisdictions. Defamation is based on the publication at common law, while in NSW the action is based on each pleaded imputation. Drawing on empirical research into defamation litigation, the article suggests this apparently minor and technical difference is an important influence on the complexity of NSW litigation. The NSW approach does not offer the benefits of precision suggested in some commentary. Instead, it appears to restrict the scope of legal speech. Empirical research suggests that pleading disputes happen far more frequently in NSW than in Victoria for little, if any, benefit. The article critically reviews the NSW Law Reform Commission's repeated support for the imputation-based cause of action, and argues that it should not prevent Australian law moving to a cause of action based on published material. Although the article focuses on NSW and Victorian defamation law and practice, the issues are relevant more widely in Australia and in comparable jurisdictions internationally. The cause of action's basis - in the imputations or the publication - should be seen as an important aspect of how speech is protected under defamation law. A cause of action based on the publication should be recognised as preferable in any reforms to defamation law.

defamation, Australia, New South Wales, Victoria, empirical research, publication, imputation, cause of action, litigation, legal speech, NSW Law Reform Commission

Abstract:
This report examines steps that could be taken to control cross-border tobacco advertising, promotion and sponsorship under the WHO's Framework Convention on Tobacco Control (FCTC). It recommends a multilayered approach - which includes formal law and regulation, monitoring and enforcement practices, education, and international cooperation - be applied in relation to three categories of actors: advertising producers and their agents, content providers, and technological intermediaries, if the aims of the FCTC are to be met.

media law, advertising, regulation, tobacco, WHO, FCTC

Abstract:
Between March and September 2006, researchers at the Centre for Media and Communications Law (CMCL) interviewed 38 Australian television industry figures about their attitudes and experiences with regard to content control technologies for digital broadcasting. The interviews formed part of a three year research project into legal and technological mechanisms for controlling digital television content, which is funded by the Australian Research Council and encompasses questions in the fields of copyright law, media law and media policy.

The interviews explored issues such as content control for digital television broadcasts; viewer reuse of broadcast content; the interaction of technical and regulatory controls; and more general matters about the future of television in Australia. The aim was to gather a range of views from across the industry, including individuals employed within commercial, national, subscription and community broadcasting, external legal advisors, the production sector, industry organisations and regulators. Interviewees were asked for their individual, anonymous views and they appeared to provide frank responses. Interviewees certainly had a great deal of experience in the industry on which to draw: the median time they had spent working in the field was 15 years and the mean was more than 16 years.

This brief report outlines two related areas where information has been collected from the interviews: attitudes to content control technologies and viewer reuse of digital audiovisual content. Overall, the observations distilled here from industry professionals are largely consistent with points raised earlier in this project, such as the existence of varied industry attitudes to whether time-shifting for personal use should be allowed under Australian copyright law. But the snapshot from industry set out here will also provide a useful reference in more detailed future analysis of legal and policy issues concerned with digital television and content control in Australia.

digital television, Australia, industry, content control, reuse

Abstract:
In this book, TV FUTURES, leading researchers examine television and its digital future in terms of platforms and audiences, copyright law and media regulation - issues which are increasingly intertwined and demand interdisciplinary engagement. TV FUTURES offers accessible analyses for readers from across the fields of law, media studies and cultural research from an outstanding team of authors. Authors include: Jason Bosland, Kathy Bowrey, David Brennan, Tim Dwyer, Jock Given, Gerard Goggin, Elizabeth Handsley, Lesley Hitchens, Ellie Rennie, Teresa Rizzo, Julian Thomas, Rodney Tiffin, Kimberlee Weatherall, Robin Wright and Melissa de Zwart. The table of contents and first chapter are available here.

Digital, Television, copyright, regulation, mobile, Australia, US, UK, New Zealand

Abstract:
Many areas of digital communication, including digital television, raise concerns about unauthorised reuse of content. Proposals exist in the United States and Europe for applying content control technologies to free-to-air digital television to limit the reuse of broadcast content. These proposals have implications for regulatory options, and for the social and cultural position of television in countries such as Australia. Each proposal also demonstrates the importance of current issues in copyright reform for questions of media law and policy. By examining the history and current status of the broadcast flag in the United States and the Content Protection and Copy Management standard being developed in Europe, this article suggests that Australian regulators are likely to face similar calls for action on digital broadcast content and explains some of the possible regulatory choices regarding the transmission and the reception of digital free-to-air content. As with the United States' and European plans, the choices made in relation to television may have wider implications for digital networked communications and the evolution of a diverse media environment.

digital tv, free-to-air, content control, policy, law, media

Abstract:
Digital communications technologies are providing new means for museums, galleries, libraries and archives to pursue their public interest missions, including in relation to access. However, as practical impediments to collection access change, copyright law poses significant challenges to the development of digital collections. This article uses recent experience in Australia to discuss copyright's impact on digitisation, and to explain why and how copyright has influenced the cultural institution "without walls". It also describes recent amendments to Australian copyright law - in particular, introduction of a flexible exception for some activities by cultural institutions. This may represent an important development in Australia, and offers relevant case study internationally, for addressing copyright issues about digital access.

copyright, Australia, cultural, digital, collections

Abstract:
There are varied Australian approaches to suppression orders under common law and statute. This article outlines notable aspects of the law and examines concerns that have been raised by commentators about practices in Australia. Suppression or non-publication orders have been described as being made too frequently, especially outside the superior courts; their varied legal basis has been said to limit clear and comprehensive analysis by judges and lawyers; orders have been said to lack appropriate argument and reasons to support them; and their scope, precision and duration have been criticized. Existing Australian law and practice is used to evaluate reforms that came into force in April 2007 in South Australia. The reforms appear to be aimed at reducing the number of suppression orders and moving the law closer to the position that applies in most Australian jurisdictions. They offer an important opportunity for the development of suppression order law and practice within South Australia and elsewhere. Analyzing restrictions on publication also suggests there would be value in comparative and empirical research into suppression order practice for investigating what, if any, changes are warranted to the applicable law or court procedures.

suppression orders, Australia

Abstract:
This paper examines contemporary transformations in media markets in Malaysia and Singapore. In both countries, dominant models of 'old' media-government relations are being contested by the emergence of 'new' online and independent media. Our analysis is grounded in new institutional approaches towards the study of news media and political communication. We argue that while legislation and law, in particular defamation law, and informal and formal organisational relations influence the possibility of public debate through the media, internet-based media are emerging as a potentially critical new voice in journalism in both countries. At the same time, analyses of these potentials need to avoid technological determinism. Rather, there is a need to examine the social, political and economic contexts, and the media markets, in which the technologies are emerging.

Media markets, defamation law, new media, Malaysia, Singapore

Abstract:
This authoritative text provides a picture of how Australian intellectual property law has developed as a distinctly Australian body of law during the century since Federation. The book takes a selection of key intellectual property law cases and tells their stories, situating each case in its social context, as well as providing factual details about the arguments made in each case and the evidence adduced. Landmarks in Australian Intellectual Property Law offers a closer legal analysis of selected cases, many of which have been central to the framing of Australian intellectual property law. It provides a fuller sense of each case as revealing and influencing wider understandings and practices. Landmarks in Australian Intellectual Property Law is a valuable resource for academics, researchers, practitioners and judges in Australia and throughout the common law world.

Intellectual Property law, Landmarks, Australian law, law cases, social context, legal analysis, common law

Abstract:
Parties in civil defamation disputes very often disagree about what the publication in question means. While the differences may appear minor for example, does the publication convey that the plaintiff is guilty of some discreditable action or merely suspected of such guilt the way in which these differences are handled in law and litigation practice has great importance. Dealing well with the issue of meaning is central to litigation practices that are fair to both parties, respectful of limited court resources and responsive to the public interest in efficient and effective defamation litigation. This article examines three ways in which parties may differ about defamatory meaning, explains the contradictory labels that have been used for such differences in Australia, and considers how the Australian law on this issue has been modified in recent years. It then sets out two main contentions relevant to the uniform defamation statutes which now overlay the Australian common law on defamation. First, contrary to brief statements by the NSW Court of Appeal, the Australian common law does allow defenses for truth in relation to some types of meaning that differ from those pleaded by plaintiffs.

These defenses are now available nationwide under the uniform law. They usually arise in relation to the defense of truth, but some decisions have also applied them to publications of opinion. Second, the common law approach to this issue, which is seen particularly in recent decisions from Victoria, South Australia and Western Australia, should be reconsidered in light of evidence from litigation practice in Australia and England. The most equitable and effective approach to defenses of truth and opinion remains focused on the substance of the publication, rather than being caught in the intricacies of pleaded imputations, intricacies which have troubled defamation law in Australia for too long.

Polly Peck, defamation, truth, opinion, Australia

Abstract:
This article continues a project investigating the law applying to the civil recovery of stolen artworks, and the legal understanding of Australian art market actors such as commercial galleries and auction houses. Part one summarises our earlier research on art recovery and the reforms it suggested for the Australian law on limitation periods. We then examine, in part two, methodological questions related to the interviews underlying this article and explain its exploratory scope. Part three addresses some relevant aspects of the international context that develop from our earlier work, and part four reports on the legal understandings and practices of some Australian art market actors. The limited fieldwork described in this article suggests three conclusions. First, there appears to be little art market knowledge of the legal position about recovering stolen art. Second, there appears to be substantial art market support for a publicly available database or register of artworks that have been stolen previously in Australia. However, there is very little knowledge of the existing international listing services for art thefts. Third, current art market practices create difficulties when trying to investigate the legal title of art vendors, and buyers appear to face significant hurdles in meeting English or United States standards of good faith and due diligence. These practices, however, would not prevent the use of theft listing services. All this supports our earlier reform suggestions, and suggests current art market practices could well accommodate the development of listing services to encourage due diligence.

stolen art, Australia, Australian art market, limitation periods, art theft, England, United States, good faith, due diligence