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Asian Pacific Copyright Association Conference 20-22 November 2016

Programme

Sunday, 20 November 2016 5.15 pm Shuttle bus pick-up from 3 hotels (Best Western Plus > Hotel Jen >

Robert Black College) to dinner venue 6.00 pm Pre-conference dinner

Restaurant: Peking Garden Restaurant (Alexandra House branch) Address: Shop B1, Basement 1, Alexandra House, 16-20 Chater

Road, Central Transport: 2-min walk from Exit H, Central MTR Station Cuisine: Chinese, Beijing cuisine Phone: 2526-6456 Map: https://drive.google.com/file/d/0B3Vaav-

YAZ6RMTVNQXBzcWFHWnc/view?usp=sharing

Monday, 21 November 2016 8.00 am Shuttle bus pick-up from 2 hotels (Best Western Plus,

bus leaves at 8:05 am; Hotel Jen, bus leaves at 8:15 am) to conference venue

8.30 – 9.00 am Registration including tea and coffee 9.00 – 9.15 am Welcome

Professor Michael Hor Dean, Faculty of Law, the University of Hong Kong.

9.15 – 10.00 am Keynote address: Professor Peter Yu

The RCEP and Trans-Pacific Copyright Norms. Chair: Assoc Prof Susan Corbett (General Secretary, Asian Pacific Copyright Association)

10.00 – 10.30 am Morning tea

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10.30 am – 12.00 pm Session One – Addressing the Asian Pacific

Copyright Code

Chair: Assoc Prof Haochen Sun Commentator: Dr Rebecca Giblin

1. Prof Liu, Kung-Chung Principles for a De Lega Ferenda Copyright Code

2. Assoc Prof Alexandra Sims A Tale of Two Codes

3. Dr Lida Ayoubi Copyright Harmonisation in the

Asian Pacific: Weaving the people together

4. Paul Sugden Does the Asian Pacific Copyright Code provide satisfactory remedial rights/solutions for copyright owners in the Asia-Pacific Region

5. Melanie Johnson Harmony and counterpoint: dancing with

fair use in New Zealand and Australia? (Co-authored with Robin Wright)

12.00 – 1.00 pm Lunch (for Chairs, Speakers, and paid participants. In room 319, 3/F Cheng Yu Tung Tower, HKU)

1.00 – 2.45 pm Session Two – Copyright and Communication Chair: Assoc Prof Chen, Kuang-Cheng

Commentator: Prof Shubha Ghosh

1. Cheryl Foong The Making Available Right: Problems with "the Public

2. Dr Jessica Lai The Development of Performers

Rights in New Zealand

3. Richard White Researchers' attitudes towards open access and their publishing practices: a view from the bottom of the Asian Pacific

4. Dr Patricia Audrey Ruslijanto Movies Piracy and the Future of Copyright Law (Indonesia Case Study)

5. Dr He, Tianxiang China’s cultural censorship system and its influence on copyright protection

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2.45 – 3.15 pm Afternoon tea 3.15 – 5.15 pm Session Three – Copyright law in China and Hong

Kong – new developments

Chair: Assoc Prof Li, Yahong

Commentator: Professor Liu, Kung–Chung

1. Prof Dr Lin, Xiuqin Major Amendments to China's Copyright Act: My Perspective

2. Prof Wang, Qian Whose works must not be broadcast by Compulsory Licence in China? A commentary on Article 49.2 of the draft amendment of China’s Copyright Law

3. Dr Hua, Jie (Jerry) Implementation of the Marrakesh Treaty

for Visually Impaired Persons into Chinese Copyright Law

4. Dr Guan, Wenwei Copyright v Freedom of Contract: the “Contract Override” Issue in Hong Kong’s Copyright Amendment

5. Assoc Prof Haochen Sun Copyright and the Public Interest: A Tale of Two Digital Library Litigations

5.15 – 5.45 pm APCA Information Presentation APCA Executive Committee

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6.00 pm Shuttle bus leaves for dinner (pick-up at the HKU Haking Wong Podium, behind canteen)

6.30 pm Conference dinner (for Chairs, Speakers, and paid

participants)

Restaurant: Jumbo Kingdom http://www.jumbokingdom.com/eng/main.php

Venue: Shum Wan Pier Drive, Wong Chuk Hang,

Aberdeen Transport: Shuttle bus from HKU

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For guests who prefer to make their own way, please visit: http://www.jumbokingdom.com/eng/contact.php

Cuisine: Seafood Phone: 2553-9111 Map: https://drive.google.com/file/d/0B3Vaav-

YAZ6RWHllVmFabkFpUmc/view?usp=sharing

Tuesday, 22 November 2016 8.00 am Shuttle bus pick-up from 2 hotels (Best Western Plus,

bus leaves at 8:05 am; Hotel Jen, bus leaves at 8:15 am) to conference venue

8.30 – 9.00 am Registration including tea and coffee 9.00 – 9.45 am Keynote address: Dr Rebecca Giblin

Future-Proofing Copyright

Chair: Dr Jessica Lai

9.45 – 10.00 am Morning tea 10.00 – 11.30 am Session Four – Copyright and the arts

Chair: Craig Dickson (Treasurer, Asian Pacific Copyright Association)

Commentator: Prof Peter Yu

1. Prof Shubha Ghosh Remapping Copyright Functionality: The Quixotic Search for a Unified Test of Separability for PGS Works

2. Dr Jonathan Barrett Putting Artists, and Guardians of

Indigenous Works First: Towards a Restricted Scope of Freedom of Panorama in the Asian-Pacific Region

3. Assoc Prof Chen, Kuang-Cheng A Study on the Contradiction between

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Droit de Suite and the First Sale Doctrine—From the Perspectives of Law and Economics

4. Prof Natalie P Stoianoff Fair Use and Indigenous Cultural Expressions (Co-authored with Evana Wright)

11.30 am – 1.15 pm Session Five – Data, Technology and Copyright

Chair: Prof Anne Cheung Commentator: Prof Wang, Qian

1. Prof Emeritus Broadening the Normative Inputs for

Doris Estelle Long 21st Century Copyright Reform: Isn’t it Time to Add Privacy Into the Mix?

2. Dr Lee, Jyh-An Licencing Open Government Data

3. Assoc Prof Susan Corbett TPM regulation in New Zealand and the United States: Round one to the U.S?

4. Huang, Weijie Reconstructing Property Rule and Liability Rule for Copyright Holders, Users and

ISPs: The Age of User-Generated Content (Co-authored with Assoc Prof Zhang, Han)

5. Dr Guan, Wenwei Copyright, Artificial Intelligence and

equitable compensation or lack thereof. Can we make things right again? (Written by Ronald Yu)

1.00 – 1.30 pm Closing remarks: Associate Professor Haochen Sun Director, Law and Technology Centre; Director, LLM Program in IT & IP Law, Faculty of Law, The University of Hong Kong

Associate Professor Alexandra Sims President, Asian Pacific Copyright Association

1.30 – 2.00 pm Lunch (for Chairs, Speakers, and paid participants. In

room 319, 3/F Cheng Yu Tung Tower, HKU)

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ABSTRACTS

Copyright Harmonisation in the Asian Pacific: Weaving the people together?

Dr Lida Ayoubi, Lecturer, School of Law, Auckland University of Technology, New Zealand

In 2015 Professor Adrian Sterling proposed an “Asian Pacific Copyright Code” that would harmonise the copyright laws of Asian Pacific countries that adopt the code. Regional as well as international copyright harmonisation has proven to be a complex issue. For instance, the 1994 Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) was arguably the most significant step in harmonising intellectual property (IP) law including copyright on a global scale. There have been attempts at harmonising copyright and related rights in the European Union since the late 1990s and their success or failure is still debated. The Asian Pacific countries have particular characteristics, one of which being their indigenous populations, that might further complicate harmonisation. The relationship between indigenous knowledge and culture and copyright is already a major component of the IP and human rights literature. This article evaluates copyright harmonisation in the Asian Pacific region while focusing on the existing experiences of international and regional harmonisation; the relevant particularities of the Asian Pacific countries; and, an indigenous peoples’ rights perspective on such harmonisation. Putting Artists, and Guardians of Indigenous Works First: Towards a Restricted Scope

of Freedom of Panorama in the Asian-Pacific Region

Dr Jonathan Barrett, Senior Lecturer, School of Accounting and Commercial Law, Victoria University of Wellington, New Zealand

Freedom of panorama is an exception to authors’ exclusive rights to economically exploit their works. Australia and New Zealand have adopted the particularly broad conception of freedom of panorama which typifies British heritage copyright systems. In this scheme, all authors of architectural works, buildings, sculptures and works of artistic craftsmanship are potentially affected by freedom of panorama, since they may not be able to fully exploit their works in the marketplace. Furthermore, these works, which are in the public space may, are commonly treated as being in the public domain and consequently subjected to derogatory treatment. However, the impact of freedom of panorama on Indigenous artists is arguably most acute because certain of their works are not intended to be commercially exploited. At worst, an Indigenous artist whose work is exploited by outsiders may face serious community sanctions for failing in their guardianship obligations. Many countries in the Asian-Pacific region have Indigenous peoples, either in a minority or a majority, whose three dimensional artistic works may be adversely affected by excessively liberal freedom of panorama provisions. This paper argues for the adoption of a restricted scope of freedom of panorama across the Asian-Pacific region for the benefit of artists in general but specifically for Indigenous artists and guardians of their works.

A Study on the Contradiction between Droit de Suite and the First Sale Doctrine—From the Perspectives of Law and Economics

Associate Professor Kuang-Cheng Chen, Graduate Institute Law for

Intellectual Property Rights, School of Law, Shih Hsin University, Taiwan

Droit de Suite” was adopted in the Second Draft of the Amendment to the Copyright Act of China (hereafter, the Copyright Act Amendment of China) on July 6, 2012, and Clause 1, Article 12 of the Copyright Act Amendment of China regulated that authors, successors, or legatees of artistic, photographic, and musical works or drafts could obtain the rights of benefit sharing after these works or drafts are auctioned. From this amendment, we can understand the Chinese government’s attempts to ensure healthy auctions and factor in European laws. In fact, “Droit de Suite” initially

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emerged from a special law in France in 1920, and it was formally ruled in Article 14ter of the 1948 Brussels Amendment of Berne Convention for the Protection of Literary and Artistic Works in 1886. “Droit de Suite” is designed to protect the authors of artistic works who could obtain a certain percentage of rewards from the auction prices of each auction of these works. However, the “First Sale Doctrine,” which is a primary part of the “Right of Distribution” in copyright laws, indicates that authors exhaust their control and rights of distribution for original and duplicated works after they first sell or transfer the ownership of these works. Apparently, the “First Sale Doctrine” aims to ensure the free exchange of works and flow of information to lower the searching costs within transaction costs. Since they cannot be transferred or succeeded, “Moral Rights” (including “Droit de Suite”) occupy the dominant status when they conflict with “Economic Rights.” Hence, it follows that “Moral Rights” are superior to the limits of “Economic Rights,” including the “First Sale Doctrine.” In this manner, “Droit de Suite” blocks the maximum use of copyrighted works, thereby narrowing down the application of the “First Sale Doctrine” with economic analyses. Although “Droit de Suite” protects the personal benefits gained by authors from auction rewards internally, courts and auction winners bear high external transaction costs, including the high enforcement and control costs of “Droit de Suite.” Consequently, this study evaluates whether “Droit de Suite” added under “Moral Rights” is efficient from the legal and economic perspectives. In addition, it suggests restricted approaches for “Droit de Suite” by considering contracts and limited terms in order to internalize its external costs in the case that states plan to add it within the ambit of “Moral Rights” in copyright laws.

TPM regulation in New Zealand and the United States: Round one to the U.S?

Associate Professor Susan Corbett, School of Accounting and Commercial Law, Victoria University of Wellington, New Zealand

The importance of intellectual property to the global economy is reflected by the inevitable presence of an intellectual property chapter in bilateral and multilateral free trade agreements. The United States, a leading exporter of copyright works, leads many such agreements and requires contracting states, many of which are copyright importers, to strengthen their intellectual property laws to be equivalent to United States’ laws. However, states should ensure they do not amend their laws in ways that will result in their citizens being placed at a disadvantage compared to United States’ citizens. For example, the copyright section of the Trans Pacific Partnership (TPP) requires Parties to introduce strict restrictions on the use of circumvention devices to unlock technical protection measures (TPMs) on copyright works, and to provide increased penalties for infringing activities. Although these measures conform to the equivalent provisions in the United States’ Digital Millenium Copyright Act (DMCA), they do not acknowledge the outcomes of the three-yearly rulemaking process that moderates the TPM anti-circumvention provisions of the DMCA for specific classes of copyright works. Focusing on New Zealand, this article describes the anti-circumvention provisions that New Zealand proposes to introduce into its copyright law to comply with the TPP. The article contrasts the New Zealand amendments with the 2015 rule made under the DMCA and explains why domestic compliance with the TPP by all Parties should proceed with caution.

The Making Available Right: Problems with "the Public"

Dr Cheryl Foong, Lecturer, Curtin Law School, Curtin University, Perth, Western Australia

In recent years, we have seen developments in networked technologies such as cloud storage throw the spotlight on the exclusive right of the copyright owner to communicate copyright material to the public. Since its introduction through the WIPO Internet Treaties, the right to communicate to the public by “making available” has promised to take centre stage in the Internet era we now inhabit. However, it has not been until recent times that its scope and impact has come under close scrutiny. This paper reviews the elements and operation of the making available right, focusing in particular on the increasingly problematic notion of “the public”. It will analyse the pitfalls of a judicial trend, spanning several jurisdictions (Australia, EU and US), that exhibits an expansive interpretation of the element. This trend is found in recent cases, and is further illuminated by an analysis of historical cases. This paper posits that an approach to copyright that takes into account its communications

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function—to promote the dissemination of knowledge and culture—would bring a deeper level of understanding and balance to the issues at hand.

Remapping Copyright Functionality: The Quixotic Search for a Unified Test of Separability for PGS Works

Professor Shubha Ghosh, Crandall Melvin Professor of Law and Director of the

Technology Commercialization Law Program, Syracuse University College of Law

Intellectual property protection of design has been a vexing problem, perhaps more so in the United States than in Europe. Design protection is a central question in many Asian countries, such as Singapore, India, and China as these countries work to diversify their economic basis and move to compete globally in manufacturing, software, and entertainment sectors. Debates in the United States over design protection, whether conducted in the legislature or the courts, have centered on creating incentives for vexatious litigation among competitors and the adequacy of existing copyright, trademark, and patent laws in protecting the economic interests of designers. As the United States has not adopted a sui generis statute to protect designs, the debate continues within trademark, patent, and copyright laws as to the scope of protection for purely ornamental features of a work. This Article focuses on the debate within copyright, made particularly salient by the United States Supreme Court’s decision to review Star Athletica v. Varsity Brands in the 2016-2017 term. This potentially watershed case will have implications for design protection in Asia as lawmakers attempt either to emulate a desirable legal regime or to avoid mistakes. This Article explores the dilemmas confronting the Court in identifying the appropriate test for separability. The United States Court of Appeals for the Sixth Circuit, the intermediate appeals court whose decision in Star Athletica the Supreme Court is reviewing, identified nine distinct tests adopted by the intermediate appellate courts to separate copyrightable aesthetics from noncopyrightable function in a given work. The Sixth Circuit also announced its own hybrid test. These tests are the product of nearly forty years of jurisprudence, at least since the current Copyright Act of 1976. It is difficult to imagine how the Court will identify the one correct test from all these options. Most likely, it will distill some general principles to help guide the lower courts in reviewing cases, drawing on its foundational decision in Mazer v. Stein. Perhaps these principles will evolve into some clear rules and applicable standards. Most likely, litigation will continue and jurisprudence on separability will continue to proliferate. The case of maps and charts, although seemingly far removed from cheerleader outfits, fashion design, and accessorizing, provides a window into the dilemma of creating a coherent doctrine of copyright functionality. This Article casts attention to maps and charts, in part, because they comprised, along with books, the original subject matter of copyright the first United States statute enacted in 1790. The lessons gleaned from the study of maps will have implications for design protection regimes globally and particularly in Asia.

Future-proofing copyright

Dr Rebecca Giblin, Deputy Director of the Monash Centre for Commercial Law and Regulatory Studies (leading Innovation and Intellectual Property)

Monash University, Melbourne, Australia

In thinking about whether a new regional copyright law ought to be developed and what it might look like, it's instructive to consider lessons from both the broader international experience and recent trends in domestic policy-making. The major international copyright treaties are virtually impossible to change, and the chances of the Berne Convention ever being revised again look vanishingly small. On the domestic front, lawmakers in an increasing number of countries are finding it politically impracticable to enact substantial reform in the midst of an increasingly contentious copyright discourse, even in spaces where the treaties permit them to do so. In both cases, the result can be outdated mandates that fail to respond adequately to new technological and social realities. Drawing from this history Dr Giblin will identify the main traps to be wary of in contemplating any new regional copyright agreement, before proposing some positive mechanisms that may enable us to do a better job of future-proofing copyright.

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Copyright v Freedom of Contract: The “Contract Override” Issue in Hong Kong’s Copyright Amendment

Dr Wenwei Guan, Assistant Professor, School of Law, City University of Hong Kong

Although both failed attempts of copyright amendment in the 2011 Bill and 2014 Bill shared with one another an emphasis on copyright’s limitation over free speech, the contract override issue indicates a particular confusion as to the nature of copyright, contract freedom and international obligation. As property right recognition gives constitutional support to copyright and contract serves as the means to individual freedom manifested in private property, contract override bears certain constitutional legitimacy. This paper argues, however, that while property right has an in-built limitation from the needs of others, and the Victorian sanctity of contract has been gradually qualified by “the needs of the all”, the balance of rights and obligations to the consideration of public interest and social development is imperative, and is an international obligation for intellectual property protection under TRIPS subject to no derogation. The proposal that allows contract, as the means for individual freedom manifested in private property, to override those copyright exceptions aiming at limiting private rights for the balance of rights and obligations finds no jurisprudential support. The paper calls for a careful examination of the nature of copyright, contract freedom and international obligation should Hong Kong’s copyright amendment effort resume.

China’s cultural censorship system and its influence on copyright protection

Dr Tianxiang He, Assistant Professor, School of Law, City University of Hong Kong

Besides the copyright laws, the Chinese government uses its censorship system, along with its import quotas and enforcement campaigns, to adjust wrongdoings that it finds in its cultural market. China is famous for its strict censorship system regarding cultural goods. China is not, of course, the only country which advocates censorship, but its uniqueness lies in the political purposes that its censorship system serves. This article explores China’s censorship system in the cultural sector in detail. It examines the ex ante and ex post censorship system in three major areas: publication, traditional broadcasting channel, and online publishing, and the interplay among related legislations, regulations, and national enforcement campaigns. The Chinese government is very open in terms of the content being distributed across different channels. It is also clear that the possibility for foreign capitals to conduct business is severely restricted in China. Therefore, foreign copyright holders have to rely on local service providers. However, given the ambiguous ex ante censorship criteria and the punishment officially licensed local distributors will receive for letting ‘bad stuff’ in, many foreign works will be denied entry de facto, simply because no practitioners would dare take the risk. Even for those works that have passed the harsh censorship examination and have already entered the Chinese market via traditional means, they still have to face explicit and implicit restrictions, such as discrimination between local and foreign works in broadcasting hours, and import quotas. Moreover, that they are ‘safe’ now does not mean that they will be ‘safe’ in the future, since the ex post censorship, along with enforcement campaigns, will ensure that when a once ‘safe’ object becomes a threat, it will soon disappear from public view. This article explains how China uses these legal instruments and utilizes enforcement campaigns, to strategically live up to their international obligations and serve its political needs of content control and market domination, rather than merely the outward purposes of these regulatory instruments and campaigns such as copyright protection.

Implementation of the Marrakesh Treaty for Visually Impaired Persons into Chinese Copyright Law

Jie Hua, Assistant Professor, School of Law, Tongji University, Shanghai China

Development of digital network technology has advanced people’s capability to access to obtain, disseminate and utilize copyright information and works. Despite of the digital progress, a large number of visually impaired persons (VIPs) are deprived of access to copyright information and works due to lack of exceptions in national copyright laws for facilitating VIPs to obtain copyright

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works in low cost or even freely. In order to resolve the global book famine of VIPs, the World Intellectual Property Organization (WIPO) adopted the Marrakesh Treaty to Facilitate Access to Published Works for Persons who are Blind, Visually Impaired, or otherwise Print Disabled (the Marrakesh Treaty) on 27 June 2013 to provide a series of exceptions to copyright for facilitating the visually impaired to access to copyright works. The Treaty creates minimum standard of exceptions and provides leeway for Contracting Parties to domestically incorporate these exceptions. As a member country of WIPO, China has signed the Marrakesh Treaty but has not ratified it. It is important for China to implement the Treaty provisions into its copyright law before submitting the ratification to WIPO. After analyzing the reasons for global book famine of the visually impaired and examining the key provisions in the Marrakesh Treaty, this article figures out inadequate exceptions for the benefit of the VIPs in the current Chinese Copyright Law and suggests proposals for implementing the Treaty provisions into the domestic law. In detail, this article proposes the Chinese Copyright Law expanding the scope of beneficiary persons and accessible format copy, clarifying authorized entity and types of works under the exceptions, adjusting permitted activities in compliance with the Marrakesh Treaty, as well as taking relevant issues, such as export and import of accessible format copy and circumvention of technological measures, into consideration. Furthermore, lawmakers in China may consider two either-or approaches to implement the Marrakesh Treaty: to incorporate the provisions directly into the Chinese Copyright Law; or to promulgate an independent copyright regulation to particularly govern exceptions for people with visual and print disability.

Harmony and counterpoint: dancing with fair use in New Zealand and Australia?

Melanie Johnson, Copyright Officer, Libraries and Learning Services, University of Auckland, New Zealand

& Robin Wright, Copyright Manager, Swinburne University of Technology, Australia

Free trade agreements now include intellectual property provisions aimed at the harmonising law between trading partners in order to facilitate trade. New Zealand and Australia are parties to the Transpacific Partnership Agreement which has required that members increase protections for copyright. Since 2004 various recommendations have been made in Australia to introduce a broader United States-style expanded fair dealing provision to counterbalance the increased protections for rights owners as a result of the Australia United States Free Trade Agreement and to provide greater flexibility in a rapidly changing digital environment. This paper will consider whether harmonisation of the copyright law of Australia and New Zealand is possible with particular regard to fair use and whether or not it is in the best interests of both parties. Currently both New Zealand and Australia have prescriptive fair dealing exceptions based on the British model which do not readily adapt to developments in technology. If Australia accepts the recommendations and adopts a fair use regime, will New Zealand follow suit? New Zealand Australia Closer Economics Relations (CER) is a commitment to create a seamless trans-Tasman business environment, making it as easy for New Zealanders to do business in Australia as it is to do business in and around New Zealand and includes measures to unify policy, laws and regulatory regimes in both countries. In order to compete on a level playing field with Australia, New Zealand may wish to adopt a similar provision or risk falling further behind in innovation and development of its technology. While there will be strong resistance from rights owners, should it arrive, fair use or an equivalent provision in New Zealand and Australia may end up looking very different to fair use in the US.

The Development of Performers’ Rights in New Zealand

Dr Jessica Lai, Senior Lecturer, School of Accounting and Commercial Law, Victoria University of Wellington, New Zealand

New Zealand first introduced performers’ rights into its law in the Copyright Act 1994 to meet its TRIPS obligations. This was relatively late compared to many countries. In the 22 years since the enactment, there has not been a single dispute relating to performers’ rights and New Zealand has not acceded to the WIPO Performances and Phonograms Treaty (WPPT). Nevertheless, New Zealand

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is proposing to expand performers’ rights in the Trans-Pacific Partnership (TPP) Agreement Amendment Bill. The TPP actually requires very little with respect to performers’ rights, as does the Asia-Pacific Copyright Code. This paper outlines the development of performers’ rights in New Zealand and asks where we are heading and why, given the seeming lack of importance of performers’ rights in New Zealand and absence of international obligations.

Licencing Open Government Data

Jyh-An Lee, Assistant Professor, Faculty of Law, The Chinese University of Hong Kong

Governments around the world create and collect an enormous and wide-ranging amount of data. For various social, political, and economic reasons, open data has become a popular government practice and international movement in recent years. Open data policies are widely recognized as a tool to foster government transparency and economic growth. Businesses have also developed innovative applications, products, and services based on open government data (OGD). Although OGD is a global movement, it faces a number of unsolved legal hurdles. Among others, it is critically important for participating governments to devise the most appropriate legal means of releasing data, and intellectual property (IP) licensing has been viewed as one of the main obstacles for governments in this regard. Consequently, entrepreneurs may hesitate to use or reuse government data if there is no reliable licensing or clear legal arrangement governing it. This Article focuses on the legal issues associated with OGD licenses. Different government agencies have chosen different licensing terms to manage the release of their data. This study compares current open data licenses and argues that licensing terms reflect policy considerations, which are quite different from those contemplated in business transactions or shared in typical commons communities. This Article investigates the ambiguous legal status of data together with the new wave of OGD, which concerns some fundamental IP questions not covered by, or analyzed in depth in, the current literature. Moreover, this study suggests that governments should choose or adapt OGD licenses according to their own IP regimes. For example, whether a database right is protected as a sui generis right and whether moral rights are waivable in the subject jurisdiction both lead to licensing terms being designed differently. In the end, this Article argues that the design or choice of OGD license forms an important element of information policy; governments, therefore, should make this decision in accordance with their policy goals and in compliance with their own jurisdictions’ IP laws.

Major Amendments to China's Copyright Act: My Perspective

Prof. Dr. Xiuqin Lin, Intellectual Property Research Institute, School of Law, Xiamen University, PR China

Since China launched the 3rd amendment to its Copyright Act in 2012, mainly to cater for the demand of China's internal social and economic development, there has been heated debates over every provisions under change. These debates may provide a window for readers outside China to look into the potential change of China's copyright landscape. I will discuss the key issues concerning the 3rd amendment to China's Copyright Act, including resale right, rental right, protection of "works of applied art", safe harbour rule for ISPs, copyright licensing, fair use and collective management. As a whole, the major proposed changes under the 3rd amendment attempt to enhance the protection of copyright, while it seems to extend the scope of fair use at the same time. Moreover, the proposed new law lays great emphasis on the "use" or "application" of copyrighted work.

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Principles for a De Lega Ferenda Copyright Code

Professor Kung-Chung Liu, Institutum Iurisprudentiae Academia Sinica, Taipei Taiwan, External Director, Applied Research Center for Intellectual assets and the Law

in Asia (ARCIALA), Singapore Management University, Renmin University of P.R. China, Beijing, China

Copyright law is now facing overwhelming social discontent that challenges its legitimacy. Piecemeal amendment no longer suffices. Several attempts have been made in around 2010 to search for de lega ferenda copyright law for the US, European Union and WTO: Pamela Samuelson’s Copyright Principles Project, European Copyright Code by the Wittem Group and Proposals for Amendment of TRIPS by the Intellectual Property in Transition Project . The latest trial is probably the Asian Pacific Copyright Code put forward by Professor Adrian Sterling in 2015. This paper first studies, analyzes the principles put forward by these efforts, and summarizes their common themes. It then embarks on a quest for the principles of an ideal copyright code, which might have certain general applicability. It is suggested that a comprehensive copyright code is to be desired that includes law on collecting societies and law on copyright contacts. Any further expansion of copyright must not be pursued unless the criminal sanction against non-commercial infringement has been dropped and the collective exercise of rights be implemented. Other principles for de lega ferenda copyright law should also include: strengthening provisions on collective exercise of rights, imposing certain obligation on right-holders, exempting personal use, ensuing work creators get a fair share of the economic fruits of their creation, and incorporating competition law concerns.

Broadening the Normative Inputs for 21st Century Copyright Reform: Isn’t it Time to Add Privacy into the Mix?

Professor Emeritus Doris Estelle Long, The John Marshall Law School (Chicago)

From the heightened surveillance possibilities of drone photography, bot searches and filtering technologies, to the rapid unauthorized dissemination of personal information through the digital posting of leaked documents and personal sexting images that often qualify as copyright protectable works, privacy protection has become inextricably linked with copyright laws. We have already seen its consideration in domestic law battles over the appropriateness of blocking injunctions, filtering technologies and bot searches in the enforcement of copyrights in the digital environment. It is time to broaden the impact of privacy on copyright norms by considering its impact on a broader array of issues. These issues are as varied as those dealing with the boundaries of authorial control, the subject matter of copyright itself, the scope of fair use/fair dealing limitations, and the effectiveness of presently discredited enforcement methodologies, including most significantly the value of notice and takedown (NTD) regimes. For example, although NTD regimes, including those under the U.S. DMCA, French Hadopi and Canadian Reform laws, have been subject to severe (and often deserved) criticism, a revised regime that adds end user privacy issues into the mix could create a viable and fair process that meets the concerns of authors, distributors and end users. Similarly, fair use/fair dealing exceptions and limitations and distributional rights over works that raise concerns over personal privacy could be altered to strike more realistic balances between users and content holders. It is too soon to predict what balances will be struck on a domestic or international basis. But if we do not consider privacy issues now, we will end up with a reformation of copyright that will be as empty as those of the 1990s where end users’ voices were largely excluded. Adding privacy concerns to copyright reformation considerations will not simplify the process. But it may provide a normative basis that will survive the next technological revolution.

Movies Piracy and the Future of Copyright Law (Indonesia Case Study)

Dr Patricia Audrey R, Lecturer, Department of International Law, Faculty of Law, University of Brawijaya Indonesia

Globalization has generated many developments in almost all aspects of human life, in particular entertainment. For example, there is a seemingly never ending supply of movies which are delivered

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in many different forms including VCD and DVD. However, piracy is rife in this area. Piracy is an issue as it violates intellectual property rights. Indonesia is one of the countries that have been wrestling with the issue of movie piracy. The Association of Indonesia Film Producers’ data shows that Indonesia suffers from 90% movie piracy rates. This condition is supported by the high demand of consumer that wants to access movies for little or no cost. Dealing with this issue, Indonesia has established Law number 28 year 2014 on copyright which aims to fight copyright issues, such as piracy. Indonesia as a member of WTO is also obligated to adhere to the TRIPs Agreement. Yet this requirement has not prevented the increase in movie piracy, because movie piracy is considered to be cheap entertainment and awareness and knowledge of copyright law is low. This paper attempts to analyze Indonesia’s current law in relation to the protection of movies under Law number 28 year 2014 on Copyright and what action may take to provide better protection for movies in Indonesia. The study shows that the Law number 28 year 2014 on Copyright has failed to provide sufficient protection for movies against piracy. This paper will also show that effective steps can be taken to combat piracy by applying Friedman’s effective theory of law, which are: the needs to establish operative regulation relating with movies piracy issue, supported with the cooperation of anti-piracy movie task force system and the cooperation with society to fight piracy in the movie industry by providing socialization and building understanding relating with movies piracy.

A Tale of Two Codes

Associate Professor Alexandra Sims, Department of Commercial Law, The University of Auckland, New Zealand

The first code: in November 2015 Professor Adrian Sterling proposed the draft Asian Pacific Copyright Code (the “Copyright Code”). The second code: computer programmes embedded in smart contracts. Part of the Copyright Code provides that authors have the right to “prevent unauthorised copying or communication to the public”. By implication authors have no right to prevent authorised copying or communication to the public or, indeed, any other use permitted under copyright law. On the other hand, the often quoted “Code is law” may finally be coming into fruition through the use of smart contracts. Smart contracts will allow a rights holder (who may or may not be the author) to receive micropayments for any use of their work. Some of those uses will infringe copyright, in which case the requirement to pay the rights holder is reasonable, other uses will not be unauthorised under copyright law and for those uses payment is problematic. If we agree that code should not trump copyright, the ability of code to override copyright law must be limited in the Copyright Code. The question is what form should the limitations take, including whether breaches of the limitations are actionable.

Fair Use and Traditional Cultural Expressions in Australia

Natalie P. Stoianoff, Professor and Director, Intellectual Property Program, University of Technology Sydney

& Evana Wright, Quentin Bryce Law, Doctoral Scholar and Teaching Fellow,

University of Technology Sydney

This paper analyses the ability of Indigenous communities to control the use of Traditional Cultural Expressions (TCEs) including use under ‘fair use’ exceptions to copyright infringement. TCEs include Indigenous or traditional artworks, music and songs, stories and performances and are generated collectively and cumulatively. Copyright law vests ownership of a work in the author of that work however, in the case of TCEs, this fails to recognise the rights of the Indigenous community to which the author belongs and the obligations that the author owes to their community. This obligation to community has been recognised in Australian courts as a fiduciary duty however this approach is insufficient to fully reflect the rights and responsibilities of an Indigenous community to TCEs. Both the Indigenous community and the author or creator hold the responsibility for maintaining and protecting TCEs and therefore the community has a particularly important role to play in the context of making decisions as to how a copyrighted work may be used and who may provide consent to such use. Fair use provisions provide exceptions to copyright infringement and are intended to ensure that

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fair access to content is available while still protecting and incentivising creators of copyright works. It is critical that any rights under fair use provisions are balanced with the rights of the Indigenous community to maintain, control and protect their cultural heritage and TCEs. In the Productivity Commission’s ‘Intellectual Property Arrangements Draft Report April 2016’, support was given for the Australian Law Reform Commission’s (ALRC) recommendation to replace the existing fair dealing exceptions in the Copyright Act 1968 (Cth) with fair use provisions. In the ALRC report ‘Copyright and the Digital Economy’ it was proposed that the introduction of a fair use exception be evaluated with reference to certain fairness factors including ‘(a) the purpose and character of use; (b) the nature of the copyright material; (c) the amount and substantiality of the part use; and (d) the effect of the use upon the potential market for, or value of, the copyright material.’ The authors argue that any fair use provisions must be subject to the right of an Indigenous community to control the use of TCEs without consent, especially in the case of sacred works. In particular, it may be necessary to carry out broad consultation with Indigenous communities in order to provide guidance on dealing with Indigenous cultural production. In addition, any amendment should make clear that any fair use is expressly subject to the moral rights regime in Part IX Copyright Act, including, in particular, the right of integrity of authorship that works are not subject to derogatory treatment. Indeed it may be said that respect for Indigenous works is a sub-set of the broader right of integrity of authorship.

Does the Asian Pacific Copyright Code provide satisfactory remedial rights/solutions for copyright owners in the Asia-Pacific Region?

Paul Sugden, Department of Business Law and Taxation, Monash Business School,

Monash University

This paper considers Prof Adrian Sterling’s Asian Pacific Copyright Code (“Code”). The focus of the code is recognition and harmonisation of the substantive copyright. In the Asia Pacific region a major issue is not the existence or recognition of substantive rights in copyright but the ability to enforce a remedy in foreign jurisdictions. The existence of rights is pyric if the rights holder is in capable of enforcing remedies with in all code member countries. The effective enforcement of remedies to provide meaning to the substantive rights is an issue that Part G “Formalities, remedies and procedure” does not address. International harmonisation of remedies and awards has not been effective particularly when WTO DS 362 USA v China held remedies are a matter of “national treatment” and the substantive provision of remedies was required to accord with Art 62 TRIPS. The WTO, TRIPS system though does not provide private rights to owners. Thus what should Part G of the Code provide for private citizens to obtain effective remedial rights within the Asia Pacific? Supporting substantive rights requires an effective egalitarian remedial system, for corporate owners and individuals alike. Within the Asia Pacific region various forms of remedies are provided and levels of reciprocity and enforcement exist, which favour corporate owners, but not individuals or small to medium enterprises. Could the UK High Court Intellectual Property and Enterprise Court, or the Court of Justice of the European Union provide models for an Asia Pacific Region Copyright Court to provide harmonised remedies with in the region?

Copyright and the Public Interest: A Tale of Two Digital Library Litigations

Associate Professor Haochen Sun, Department of Law, The University of Hong Kong

This article examines the best ways to promote the public interest through copyright law by comparing the recent litigations over the Google Library Project in the United States and China. The US courts ruled that the Google Digital Library was fair use on the basis of public interest considerations. By contrast, the Chinese courts ruled against Google with scant consideration of public interest protection, holding that its Digital Library did not constitute fair use. The article considers why the US and Chinese courts have made these conflicting judicial opinions. It further shows that the construction of both legal and cultural infrastructures is essential for promoting the public interest in copyright law.

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Whose works must not be broadcasted by compulsory license in China? A commentary on Article 49.2 of the Draft Amendment of China’s Copyright Law

Professor Qian Wang, Professor of Law, School of Intellectual Property,

East China University of Political Science and Law, Shanghai

China's Copyright Law provides a system of compulsory licensing for broadcasting organizations to broadcast certain works, and the system treats domestic and foreign works equally. Article 49.2 of the third draft amendment of the China Copyright Law narrows the scope of the application of the compulsory license to works of “Chinese copyright owners and foreign copyright owners whose works are created in China.” This article argues that that proposed Article 49.2 is not appropriate. It is claimed that the article is intended to comply with Article 11bis(2) of the Berne Convention. However, As a provision allowing member states to substitute the system of compulsory licensing for the exclusive right of broadcasting, Article 11bis(2) of the Berne Convention does not oblige China to apply the compulsory license only to domestic works. Article 49.2 of the third draft amendment is also based on the misinterpretation of the expression “these conditions (of compulsory license) shall apply only in the countries where they have been prescribed” in Article 11bis(2) of the Berne Convention. That expression means that when a broadcasting organization obtains a compulsory license to broadcast works and the broadcasting signal crosses the border, other member states receiving the broadcasting signal do not have an obligation to treat the unauthorized broadcast as a lawful one. If Article 49.2 is finally adopted, unjustified supra-national treatment will be created under which Chinese copyright owners are treated less well than most foreign copyright owners. Moreover, foreign copyright owners whose works are created in China will be subject to more copyright limitations than those foreign copyright owners who created their works somewhere else, thus producing another unjustified discrimination. The interests of broadcasting industry in China will also be seriously affected since they would have to negotiate with most foreign copyright owners to obtain licenses. This article suggests deleting Article 49.2 so that the compulsory license to broadcast certain works is able to apply equally to domestic and foreign works in China. Researchers' attitudes towards open access and their publishing practices: a view from

the bottom of the Asian Pacific

Richard White, Manager Copyright & Open Access, University of Otago Depending on who you listen to, Open Access is either the death of quality research publication or a moral and ethical obligation for publicly-funded researchers that represents the future of academic endeavour. Either way, we are all familiar with the problems facing universities around the world: subscription costs have soared as huge commercial publishing companies have obtained the copyright in around 50% of the world’s research outputs. As a counter to this the Open Access movement arose to seek ways of ensuring that publicly-funded research was available to that public, whether through ensuring – often paying – to waive some authors’ copyrights in favour of readers (Gold OA) or by applying less restrictive rights to versions other than the formal, publisher’s record (Green OA). Governments and funders around the world have also seized upon Open Access issuing mandates to require open access to research in the interests of fostering the spread of knowledge and economic development but such mandates have largely been restricted to the US and Europe. This presentation will report on the findings of a survey of researchers at the University of Otago, New Zealand about their attitudes towards Open Access and how their publishing practices have been influenced by it. As in many countries of the Asian Pacific, New Zealand researchers are operating without clear directives or financial support from government and funding agencies. The results of the research show a complex web of interrelated issues affecting staff: there is very strong support for OA in principle and many see a world of open research as an important opportunity; however, in practical terms cost and a lack of understanding of a an area of very rapid change present us with difficult challenges.

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Copyright, Artificial Intelligence and equitable compensation or lack thereof: Can we make things right again?

Ronald Yu, Executive Vice President, International Internet Preservation Consortium,

Part-time lecturer, The University of Hong Kong

The US Copyright Office stated that it will not register copyright for a work solely created by an artificial intelligence (AI). Were we to analyze how modern AI systems work, we could readily find support for this position as many such systems do not actually ‘think’ the way a human does because, as Jaron Lanier, a pioneer of virtual reality noted, we don’t even know what a thought is. The problem with current AI is that many works created by such systems incorporate copyrightable works from countless humans who are not compensated for their input. Some, like Lanier, have suggested this situation is inequitable and is exacerbating the income divide - yet their proposed solutions are technically and legally problematic. If copyright and IP laws were enacted to protect and encourage creators, and no portion of any copyrightable or other work created by current AI systems enjoys IP protection, how can we remedy this situation? Reconstructing Property Rule and Liability Rule for Copyright Holders, Users and ISPs:

The Age of User-Generated Content

Associate Professor Han Zhang, School of Law (School of Intellectual Property), South China University of Technology; Senior Visiting Scholar, School of Law,

University of California at Berkeley &

Weijie Huang, PhD Student, Faculty of Law, The University of Hong Kong

The “notice and takedown” regime authorizes copyright holders to stop possible infringements by removing user-generated content (UGC) without judicial injunctions. Copyright holders’ takedown notices substantially supersede injunctions known as property rules in Calabresi and Melamed’s structure. These substitutions will increase transaction costs for possible negotiations among copyright holders, users and Internet Service Providers (ISPs), since property rules can create clear boundaries for copyright infringements from an ex-ante perspective. However, when transaction costs among parties go up, liability rules providing compensation by “judicial pricing” take effect in an unbalanced way. While copyright holders can be relatively well compensated for copyright infringements, compensation for wrongful removal of UGC is strictly limited because of the subjective good-faith standard for copyright holders’ misrepresentation and the narrow scope of recoverable damage under the economic loss rule that is reluctant to provide remedy. The current regimes are based on the assumption that users can be copyright pirates and piracy damages the market of original works. Therefore, more emphases of current regimes are on protecting copyright holders’ entitlements. However, in this new age of UGC when users are more likely to be re-creators rather than copiers, UGC has become a major source of creativity and ISPs become the platform for creativity. Consequently, a more balanced reconstruction of property rule and liability rule for copyright holders, users and ISPs should be carried out. Replacing “notice and takedown” regime with property rules based on the decisions of courts or other authorities can promote future transaction and cooperation among copyright holders, users and ISPs. This replacement of regulations also contributes to possible industry chains that are based on the negotiation and collaboration among copyright holders as original creators, users as re-creators and ISPs as re-creative mediums. Strengthening liability rules in protection of users’ and ISPs’ entitlements can bring back the balance among copyright holders, users and ISPs. Specifically, objective standard in good faith test for copyright holders’ misrepresentation causing removal of UGC and applicable economic loss liability for copyright holders in tortious interference cases should be implemented.