The outer limits of copyright law - Where law meets philosophy and culture

Law and Critique

Volumn 12, Issue 1, 2001, Pages 75-98

  Bowrey, Kathy ^a  

^a UNIVERSITY OF NEW SOUTH WALES   (Australia)

Author keywords

Authorship; Commodification; Copyright; Culture; Indigenous rights; Jurisprudence; Literary theory; Philosophy; Positivism; Romanticism; Technological neutrality

Indexed keywords

EID: 34247729487     PISSN: 09578536     EISSN: 15728617     Source Type: Journal    
DOI: 10.1023/A:1011289228679     Document Type: Review

References (78)

1. See for example, E. Hettinger, "Justifying Intellectual Property", Philosophy and Public Affairs 18/1 (1989), 31;
2. J. Hughes, "The Philosophy of Intellectual Property", The Georgetown Law Journal 11 (1988), 287;
3. M. Radin, "Property and Personhood", Stanford Law Review 34 (1982), 957.
4. As in the work of W. Gordon, "Creation of Commercial Value: Copyright Protection of Works of Information", Columbia Law Review 90 (1990), 1865;
5. "An Inquiry into the Merits of Copyright: The Challenges of Consistency, Consent and Encouragement Theory", Stanford Law Review 41 (1989), 1343;
6. "A Property Right in Self Expression", Yale Law Review 102 (1993), 1533.
7. Most notably the work of M. Rose, Authors and Owners. The Invention of Copyright (Cambridge, Mass.: Harvard University Press, 1993).
8. See for example M. Woodmansee and P. Jaszi, eds., The Construction of Authorship: Textual Appropriation in Law and Literature (London: Duke University Press, 1994).
9. D. Saunders, Authorship and Copyright (London: Routledge, 1992), 101.
10. B. Sherman and L. Bently, The Making of Modern Intellectual Property (Cambridge: Cambridge University Press, 1999).
11. See K. Bowrey, "Book Review: Sherman & Bently, The Making of Modern Intellectual Property Law", European Intellectual Property Review 22/7 (2000), 343.
12. (1774) 4 Burr. 2408, 98 Eng. Rep. 257.
13. This is the accepted reading of the legal significance of Donaldson v Becket.
14. Bulun Bulun v.R & T Textiles Pty Ltd [1998] 41 IPR 513.
15. Supra n. 10, at 524f.
16. Mabo v. The State of Queensland [No 2] (f992) 175 CLR 1;
17. Wik Peoples v. Queensland (1996) 187 CLR 1;
18. Native Title Act 1993 (Cth).
19. Supra n. 10, at 517.
20. Ibid, at 522ff.
21. Ibid, at 525.
22. Ibid.
23. Ibid.
24. S. Ricketson and M. Richardson, Intellectual Property. Cases, Materials and Commentary (Sydney: Butterworths, 1998), 4.1.25.
25. Communal ownership of the copyright could, however, arise once the artist acts upon community authorisation to paint in accordance with custom.
26. J. McKeough and A. Stewart, Intellectual Property in Australia (Sydney: Butterworths, 1997), at 6.3.
27. Supra n. 10, at 525.
28. Affadavit of Mr. Bulun Bulun in Bulun Bulun (1998), Supra n. 10, at 518.
29. Supra n. 10, at 518 (emphasis added).
30. Ibid., at 520 (emphasis added).
31. Ibid., at 515 (emphasis added).
32. Ibid, at 525.
33. Ibid, at 531.
34. The individualist concept of the person as owner of property is so fundamental to the modern law of property that it is clear why a positivist interpretation would assign the issue of communal authorship to the 'political'.
35. See J. Raz, The Authority of Law (Oxford: Clarendon, 1979), 70-77.
36. Supra n. 10, at 525.
37. Kalamazoo (Australia) Pty Ltd v. Compact Business Systems Pty Ltd (1985) 5 IPR 213.
38. Ladbroke (Football) Ltd v. William Hill (Football) Ltd [1964] 1 WLR 273.
39. Supra n. 31, at 231.
40. Apple Computer Inc v. Computer Edge Pty Ltd (1983) 50 ALR 581;
41. (1984) 53 ALR 225;
42. Computer Edge Pty Ltd v. Apple Computer Inc (1986) 161 CLR 171.
43. It is within this same space that Sherman & Bently recognise a kind of dialogue occurring that correlates the various heads of intellectual property protection, so that copyright, as a body of law, anticipates the role of design and patent law.
44. Supra n. 31, at 231.
45. Ibid.
46. In response to the criticism that the 'system' was insubstantial, Thomas found "that there is intellectual input in the forms in as much as they are designed and presented in a way which will produce meaningful results to the user." Supra n. 31, at 232.
47. In the judgment the two are treated under separate headings.
48. Supra n. 31, at 233.
49. Ibid.
50. Ibid.
51. Ibid., at 234.
52. Ibid., at 231.
53. Ibid., at 234.
54. Evidence was given of the development of each system at 217-226.
55. Supra n. 31, at 237.
56. Supra n. 31, at 220.
57. Copyright Act (1968), s. 35(6).
58. If it were the latter, this could be considered a case of "joint-authorship".
59. Supra n. 31, at 235 & 238.
60. Supra n. 31, at 238 (emphasis added).
61. Supra n. 5.
62. Supra n. 6.
63. Sega Enterprises Ltd & Anor v. Galaxy Electronics Pty Ltd (1996) 35 IPR 161;
64. (1997) 37 IPR 462.
65. Copyright Act (1968), s. 24 further provides that: For the purpose of this Act, sounds or visual images shall be taken to have been embodied in an article or thing if the article or thing has been so treated in relation to those sounds or visual images that those sounds or visual images are capable, with or without the aid of some other device, of being reproduced from the article or thing.
66. Sega (1996), supra n. 55, at 163.
67. Ibid., at 165.
68. Sega (1997), supra n. 55, at 470 (my emphasis).
69. Sega (1996), supra n. 55, at 167.
70. Developments in artificial intelligence and more sophisticated user interaction in software have progressed rapidly in the computer industry. The graphic designer's role is becoming correspondingly more complicated and more deeply integrated with the programming and other production processes. As with the film industry, special effects technologies are also becoming increasingly important to the computer games market. How this affects the attribution of authorship to the vision experienced by the user remains to be seen.
71. A. Fitzgerald, "National Report: Sega Enterprises Ltd & Anor v. Galaxy Electronics Pty Ltd & Anor (1996)", European Intellectual Property Review 20 [1997], D-37, at 38.
72. Burchett referred to Gibbs CJ's comment in Computer Edge Pty Ltd v. Apple (1986) supra n. 34, that: "... although it would be no doubt right to give the Copyright Act a liberal interpretation, it would not be justifiable to depart altogether from its language and principles in an attempt to protect the products of scientific and technological developments which were not contemplated, or only incompletely understood, when the statute was enacted"
73. in Sega (1996), supra n. 55, at 169.
74. This concern was heightened further following APRA v. Telstra Corporation Ltd (1993) 46 FCR 131;
75. (1995) 60 FCR 221;
76. (1997) 146 ALR 649 and cited as a reason for the Copyright Amendment (Digital Agenda) Act, 2000 which seeks to avoid the specificity of previous legislative approaches.
77. Copyright Law Review Committee, Simplification of the Copyright Act 1968 Report Part 2: Categorisation of Subject Matter and Exclusive Rights and Other Issues (1999), Chapter 5.
78. Supra n. 65, Chapter 6.