Intellectual Property in News? Why Not?

This Chapter addresses arguments for and against property rights in news, from the outset of national law efforts to safeguard the efforts of newsgathers, through the various unsuccessful attempts during the early part of the last century to fashion some form of international protection within the Berne Convention on literary and artistic works and the Paris Convention on industrial property. The Chapter next turns to contemporary endeavors to protect newsgatherers against “news aggregation” by online platforms. It considers the extent to which the aggregated content might be copyrightable, and whether, even if the content is protected, various exceptions set out in the Berne Convention permit its unlicensed appropriation

Inducers and Authorisers: A Comparison of the US Supreme Court\u27s \u3ci\u3eGrokster\u3c/i\u3e Decision and the Australian Federal Court\u27s \u3ci\u3eKaZaa\u3c/i\u3e Ruling

On June 27, 2005, the US Supreme Court announced its much-awaited decision in MGM Studios, Inc. v. Grokster Ltd. A few months after this, the Federal Court of Australia handed down its decision at first instance in relation to parallel litigation in that country concerning the KaZaa file sharing system. Both decisions repay careful consideration of the way in which the respective courts have addressed the relationship between the protection of authors\u27 rights and the advent of new technologies, particularly in relation to peer-to-peer networks. In the Grokster case, songwriters, record producers and motion picture producers alleged that two popular \u27file-sharing\u27 networks, Grokster and Streamcast (dba Morpheus) should be held liable for facilitating the commission of massive amounts of copyright infringement by the end-users who employed the defendants\u27 peer-to-peer (P2P) software to copy and redistribute films and sound recordings to each others\u27 hard drives. The Court reversed the Ninth Circuit\u27s grant of summary judgment for defendants, holding that the technology entrepreneurs could be held liable for \u27actively inducing\u27 the end-users\u27 acts of infringement. A similar decision was reached in Australia with respect to the KaZaa software, albeit in this proceeding the court had the advantage of much greater factual material as to the operation of the KaZaa system than did the US Supreme Court in Grokster. Nonetheless, both cases illustrate the difficulties that arise as consumer-wielded digital media increasingly supplant the traditional intermediaries who made copyrighted works available to the public (and who traditionally were the targets of copyright enforcement) and as courts struggle to balance meaningful protection for works of authorship against the progress of technological innovation. For some, the weakening of copyright control is the necessary price to pay for technological advancement. For others, authors\u27 ability to maintain exclusive rights remains a cornerstone of any copyright system as it adapts to accommodate new modes of exploitation. Grokster is the latest, and most important, in a series of US decisions to address that balance by articulating the liability of an enterprise which does not itself commit copyright infringement, but instead makes it possible for others to infringe. To appreciate the Supreme Court\u27s analysis, it helps to set the case in both domestic and international doctrinal context. Because unauthorized P2P distribution of copyrighted works extends well beyond the US, copyright owners have pursued legal actions in other countries, including the Netherlands and Australia. While the Australian case still awaits full appellate consideration, it provides a useful example of how another common law jurisdiction (Australia) analyses the liability of those who provide goods or services to facilitate infringement. In this regard, it is also useful to consider what obligations, if any, exist at the international level with respect to the liability of infringement-facilitators. We will conclude with some (perhaps foolhardy) forecasts for the post-Grokster/KaZaa future of copyright enforcement

The International Framework for the Protection of Authors: Bendable Boundaries and Immovable Obstacles

This Article is concerned with the international framework within which authors’ rights in their works are protected and exploited. It is not about brave new worlds that might exist outside or beyond this framework where rights and usages are reconceived and restructured on some totally new basis, but instead with what that framework presently allows and facilitates. The Article is therefore pragmatic in its approach, simultaneously seeking to expose the potential flexibilities and gaps within the international framework that may enable the realization of some, at least, of the objectives of those who would seek to reform and reformulate copyright laws. Indeed, it may be that there is a brave new world for the protection of authors’ rights that is embedded within the interstices of the present international framework just waiting to be uncovered and realized

Inducers and Authorisers: A Comparison of the US Supreme Court\u27s \u3ci\u3eGrokster\u3c/i\u3e Decision and the Australian Federal Court\u27s \u3ci\u3eKaZaa\u3c/i\u3e Ruling

On June 27, 2005, the US Supreme Court announced its much-awaited decision in MGM Studios, Inc. v. Grokster Ltd. A few months after this, the Federal Court of Australia handed down its decision at first instance in relation to parallel litigation in that country concerning the KaZaa file sharing system. Both decisions repay careful consideration of the way in which the respective courts have addressed the relationship between the protection of authors\u27 rights and the advent of new technologies, particularly in relation to peer-to-peer networks. In the Grokster case, songwriters, record producers and motion picture producers alleged that two popular \u27file-sharing\u27 networks, Grokster and Streamcast (dba Morpheus) should be held liable for facilitating the commission of massive amounts of copyright infringement by the end-users who employed the defendants\u27 peer-to-peer (P2P) software to copy and redistribute films and sound recordings to each others\u27 hard drives. The Court reversed the Ninth Circuit\u27s grant of summary judgment for defendants, holding that the technology entrepreneurs could be held liable for \u27actively inducing\u27 the end-users\u27 acts of infringement. A similar decision was reached in Australia with respect to the KaZaa software, albeit in this proceeding the court had the advantage of much greater factual material as to the operation of the KaZaa system than did the US Supreme Court in Grokster. Nonetheless, both cases illustrate the difficulties that arise as consumer-wielded digital media increasingly supplant the traditional intermediaries who made copyrighted works available to the public (and who traditionally were the targets of copyright enforcement) and as courts struggle to balance meaningful protection for works of authorship against the progress of technological innovation. For some, the weakening of copyright control is the necessary price to pay for technological advancement. For others, authors\u27 ability to maintain exclusive rights remains a cornerstone of any copyright system as it adapts to accommodate new modes of exploitation. Grokster is the latest, and most important, in a series of US decisions to address that balance by articulating the liability of an enterprise which does not itself commit copyright infringement, but instead makes it possible for others to infringe. To appreciate the Supreme Court\u27s analysis, it helps to set the case in both domestic and international doctrinal context. Because unauthorized P2P distribution of copyrighted works extends well beyond the US, copyright owners have pursued legal actions in other countries, including the Netherlands and Australia. While the Australian case still awaits full appellate consideration, it provides a useful example of how another common law jurisdiction (Australia) analyses the liability of those who provide goods or services to facilitate infringement. In this regard, it is also useful to consider what obligations, if any, exist at the international level with respect to the liability of infringement-facilitators. We will conclude with some (perhaps foolhardy) forecasts for the post-Grokster/KaZaa future of copyright enforcement

International Copyright and Neighboring Rights: The Berne Convention and Beyond

This commentary deals with the history and development of the major international agreements affecting copyright and related rights, including the Berne Convention for the Protection of Literary and Artistic Works 1886-1970, the Rome Convention for the Protection of Performers, Phonogram Producers and Broadcasting Organisations 1961, the WIPO Copyright and Performances and Phonograms Treaties 1996 and the TRIPS Agreement (so far as it affects copyright and related rights). Doctrinal analysis exposes gaps and ambiguities in the current text and considers the extent to which subsequent international instruments have resolved those questions. The authors analyze questions of subject matter coverage, copyright ownership, duration, nature and scope of rights, and exceptions and limitations to copyright protection. Extensive analysis of private international law matters also figures prominently, with two chapters devoted to problems of international jurisdiction and choice of law.https://scholarship.law.columbia.edu/books/1095/thumbnail.jp