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Edited by Jessica C. Lai and Antoinette Maget Dominicé

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Peter K. Yu

Since its inception, copyright law has been developed around the concept of “copy”. Although copyright began mostly as a right vested in copies, and therefore a right to prevent others from multiplying copies, the emphasis has now been dramatically shifted to the act of copying itself. The terms “copy” and “copies” have also been slowly re-conceptualised to respond to changing technology and to expand the scope of copyright protection. The first half of this chapter takes a historical perspective. It recounts the use of the concept of “copy” by the Stationers’ Company and in the Statute of Anne. It also addresses two different sets of challenges to this foundational concept: (1) the US Supreme Court case of White-Smith Music Publishing Co v Apollo Co and (2) the efforts in the mid-1990s to update the concept to meet the needs of the digital environment. The second half of this chapter is forward-looking. It examines four areas in which digital technology has posed major challenges to the concept of “copy”: reproduction, distribution, public performance and making available. The chapter concludes with six observations concerning the future development of copyright law in the digital environment.

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Dan L. Burk

During the past several years, an increasing number of scholars in a variety of fields have begun to re-emphasise the centrality of matter in their exploration of the world. This “new materialism” seems in part a reaction to the “discursive turn” during the latter years of the twentieth century which over-emphasised the cultural and semiotic dimensions in our understanding of the universe. Drawing on multiple theorists from Deleuze to Latour, scholars in disciplines across the humanities and social sciences have begun rejecting the physical dualisms that pervade even postmodern analyses, in order to develop a coherent understanding of observed phenomena. This approach has become particularly important in the area of “digital humanities”, where the digitisation of traditional expressive forms, or the development of new digital expressive forms, fundamentally implicates the connectivity of the virtual and the material. Copyright has long rested upon a series of dualistic doctrinal structures, including the fundamental dichotomy between the immaterial “work” and its fixation in a physical “copy.” This distinction, which was never entirely coherent even in traditional media, has broken down in the face of digital instantiations of creativity. The disconnection between legal doctrine and new media has now resulted in decades of incomprehensible decisions regarding the fixation of works in computer circuitry or the transmission of works across telecommunications media, particularly the internet. New materialism might offer copyright a path out of such unsustainable distinctions, by providing a viewpoint that traverses the artificial opposition of work and copy, recognising the primacy of matter in the development of creative expression.

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Giorgio Spedicato

The lending of books in electronic format by public libraries (digital lending) is gaining increasing importance both in the US and in the EU. Digital lending involves a number of acts that are subjected to the copyright holders’ exclusive rights, but – unlike in the case of the loan of physical books – a general consensus has emerged that no exception or limitation provided by copyright law may be applied to such activities. Thus, public libraries are currently offering to their patrons digital lending services based not on copyright limitations or exceptions, but on contractual arrangements among the parties concerned. Quite interestingly, despite the fact that they are aimed at regulating digital objects, many of such agreements provide solutions that intentionally mimic some of the “frictions” of the physical world (for example, distance between users and libraries, rivalry in consumption and deterioration of physical books and so on). Private-ordering models have proven to be satisfactory for copyright holders, who object to the introduction of a specific exception in copyright law and argue that “frictions” are needed for digital lending not to interfere with the market for the sale of e-books. On the other hand, however, many librarians consider such “frictions” to be nonsensical in the digital environment and point out that contract-based solutions for digital lending have led to unnecessarily high prices and, in some cases, a refusal to supply e-books to libraries. Although many limitations that are inherent in the use of physical books may seem absurd when applied to intangible copies, this chapter argues that incorporating a number of “frictions” into digital lending models may be a fair price to pay in exchange for its judicial (or, in a next future, legislative) recognition as an activity not subjected to the copyright holders’ exclusive rights.

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Susan Corbett

For cultural heritage institutions (CHIs) the divide between material and immaterial is epitomised by the impact of digital technologies. Ideally, in line with theories of cultural property and the objectives of CHIs, CHIs should be able to make use of the enhanced opportunities provided by digital technologies for effective archiving and preservation and for increased public accessibility to their collections. In practice, however, due to large numbers of works in their collections that are copyright orphan works, CHIs are legally unable to do this because effective digital archiving requires that many copies be made of the physical item. The orphan works problem is particularly serious for “born-digital” works, such as computer software, whose material platforms are in danger of physical deterioration or commercial obsolescence before the copyright expires on the digital creative work. Permitted uses for archiving and preservation in copyright laws generally permit only a limited category of CHIs to make a single copy of a work for preservation purposes. Furthermore, the permitted uses strictly limit the availability of such a copy to the public. In essence, a value judgment has been made concerning the kinds of culture that are worthy of preservation and the institutions that may preserve them. For example, many institutions that tend to collect early “born digital” works are excluded from the permitted uses for archiving and preservation. A similar value judgment is made by CHIs themselves. Wary of the unsupportive legal environment for digitisation, some CHIs have adopted a policy of accepting works for their collections only if the copyright owner of the work signs a release permitting the CHI to digitise the work for its objectives. Arguing that such a policy creates a gate-keeping role which cannot be justified by cultural heritage theories, the chapter describes and critiques recent proposals and initiatives to address the orphan works problem more generally. It explains why they may not be practicable for budget-constrained CHIs and argues that solutions for orphan works that adhere rigorously to existing interpretations of the three-step test in the TRIPS agreement are never going to be suitable for CHIs. The chapter concludes with a reminder that a solution for “born-digital” orphan works is urgently needed.

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Edited by Jessica C. Lai and Antoinette Maget Dominicé

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Catherine E. Bell, Jessica C. Lai and Laura K. Skorodenski

Issues around defining respectful relationships, and within those relationships, reconciling laws and values concerning use and control of intangible indigenous heritage, arise in numerous museum contexts including: repatriation of material culture and associated information; co-management of information or cultural expressions that were (and often still are) considered sensitive or sacred by an Aboriginal community; data and products of research derived from Aboriginal peoples or conducted within their territories; and digital images and multimedia processes designed to enhance exhibits or access to information and participation of Aboriginal peoples in interpretation and control of collections and/or a broader public through use of contemporary technologies (for example, “virtual museums”). However, the particular nature of western intellectual property norms (largely dictated by international obligations) and the intangible/tangible divide in western property complicate the matter. This chapter will introduce the current legal and policy environment for addressing intangible heritage in museum contexts and how intellectual property law, in particular trade mark and copyright law, and its relationship with chattel property and contract law, offer opportunities and challenges for policy implementation respectful of indigenous laws and relationships.

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Edited by Jessica C. Lai and Antoinette Maget Dominicé

Traditionally, in order to be protected intellectual property goods have almost always needed to be embodied or materialised (and – to a certain extent – to be used and enjoyed), regardless of whether they were copyrighted works, patented inventions or trademarks. This book examines the relationship between intellectual property and its physical embodiments and materialisations, with a focus on the issue of access and the challenges of new technologies. Expert contributors explore how these problems can re-shape our theoretical notion of the intangible and the tangible and how this can have serious consequences for access to intellectual property goods.
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Jessica C. Lai

This chapter examines modern case law to show that patent law continues to be interested in the tangible physical embodiment of inventions as well as the intangible idea and information behind them. Focusing on information-based technologies, it analyses the different ways that Europe, the US and Australasia have recently dealt with software, business methods, biotechnology and methods of medical treatment or diagnosis. The cross-jurisdictional overview underscores the importance of physical embodiment or physical effects when it comes to identifying an “invention” or “manner of new manufacture”, even with these more informational kinds of developments. The chapter highlights the inconsistency between the arguments that such technologies cannot constitute patentable subject matter because they are information-based and have no corresponding physical embodiment or observable physical effects, on the one hand, and the concept that patent law is about the intangible, on the other hand. Finally, the chapter questions patent law’s ties to the physical and whether it is desirable or not.