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Edited by Johanna Gibson

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Jani McCutcheon

Abstract

Photographs of cultural collections are an essential means of disseminating art and democratizing access to culture. This article reviews the policies of five major Australian galleries on access to their collections. It finds they tend to claim copyright in photographs of their collections, including of public domain works. This reflects a perceived entitlement to control access to their digital collections, often bolstered by a misstatement of copyright exceptions, restrictive quasi-copyright contract terms, licensing practices, and physical property rights in photography's appurtenances. This curbs the emancipatory potential of digitization, generating a conflict between the property interests of cultural institutions and the public interest in enhanced access to culture. The problem is particularly acute with respect to images of public domain art, exclusive control over which diminishes the public domain. This article considers the novel question of whether copyright subsists in photographs of two-dimensional art under Australian law, arguing that such photographs lack the originality indispensable to copyright subsistence. This conclusion significantly undermines cultural institutions’ licensing models and challenges misconceptions of property rights in the photographic surrogates of two-dimensional cultural objects. The article urges cultural institutions to liberate the digital surrogates of public domain art to enhance access to cultural capital.

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TABLE OF TREATIES, CONVENTIONS AND OTHER INSTRUMENTS

Where to Litigate Unitary Rights vs National Rights in the EU

Torsten B. Larsen

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TABLE OF LEGISLATION

Where to Litigate Unitary Rights vs National Rights in the EU

Torsten B. Larsen

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TABLE OF CASES

Where to Litigate Unitary Rights vs National Rights in the EU

Torsten B. Larsen

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PREFACE

Where to Litigate Unitary Rights vs National Rights in the EU

Torsten B. Larsen

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INTRODUCTION

Where to Litigate Unitary Rights vs National Rights in the EU

Torsten B. Larsen

This chapter sets the limits for the study by defining the purpose, scope, jurisdictional advantages for the plaintiff (jurisdiction strategies) and limits. Keywords: purpose; scope; jurisdiction strategies; limits

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EXTENDED TABLE OF CONTENTS

Where to Litigate Unitary Rights vs National Rights in the EU

Torsten B. Larsen

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Qian Zhan

A consumer survey, as an instrument used to gather data on the beliefs and attitudes of consumers towards trademarks or products, is considered to have vital influence in trademark litigation. In recent years, courts have come to rely increasingly on the results of surveys conducted by one or both litigants in trademark lawsuits. The practical issue for trademark litigants is determining whether, when and how to develop survey evidence, given the cost, time, and other constraints. To shed light on this specific issue, we undertook a statistical analysis of trademark infringement cases in China. By examining 17 836 cases decided by China's courts over a 16-year period from 2001 through 2016, this article presents an empirical study assessing the statistical relationship between the presentation of survey evidence and case outcomes. The goal of our study is to help trademark litigants to determine the importance and value of presenting consumer surveys in trademark infringement case and make more informed decisions about their litigation strategies.

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Edited by Johanna Gibson