Pub Date : 2013-02-01DOI: 10.21153/DLR2012VOL17NO2ART84
Wellett Potter
This article discusses the likely Australian copyright implications of an increasingly popular form of digital music expression: the music mash-up, a majority of which are created from pre-existing audio/sound recordings and video without permission of the copyright owner. In examining this issue, the analysis of the courts in the recent Larrikin music copyright infringement cases are examined. Consideration of the implications of music mash-up creation to moral rights is also considered. In the hypothetical scenario that a music mash-up artist is accused of copyright infringement, consideration is given as to the likely outcome of the application of the fair dealing exceptions under the Copyright Act 1968 (Cth). Finally, a suggestion is made as to the direction of future law reform in this area.
{"title":"Music Mash-Ups: The Current Australian Copyright Implications, Moral Rights and Fair Dealing in the Remix Era","authors":"Wellett Potter","doi":"10.21153/DLR2012VOL17NO2ART84","DOIUrl":"https://doi.org/10.21153/DLR2012VOL17NO2ART84","url":null,"abstract":"This article discusses the likely Australian copyright implications of an increasingly popular form of digital music expression: the music mash-up, a majority of which are created from pre-existing audio/sound recordings and video without permission of the copyright owner. In examining this issue, the analysis of the courts in the recent Larrikin music copyright infringement cases are examined. Consideration of the implications of music mash-up creation to moral rights is also considered. In the hypothetical scenario that a music mash-up artist is accused of copyright infringement, consideration is given as to the likely outcome of the application of the fair dealing exceptions under the Copyright Act 1968 (Cth). Finally, a suggestion is made as to the direction of future law reform in this area.","PeriodicalId":43081,"journal":{"name":"Deakin Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2013-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67649364","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2013-02-01DOI: 10.21153/DLR2012VOL17NO2ART82
Kembrew Mcleod, Peter DiCola
In this book excerpt, the authors address the role of two major legal exceptions to copyright protection in the music industry’s practices surrounding digital sampling. Although the United States law on the books requires a balance between the interests of copyright owners and sampling musicians, the business practice has been to mandate licensing in almost every instance. Despite this hurdle to a more balanced approach to sampling, the authors discuss several benefits that might come through doctrinal or statutory reforms, or even through developing best practices for claiming fair use.
{"title":"Non-Infringing Uses in Digital Sampling: The Role of Fair Use and the de Minimis Threshold in Sample Clearance Reform","authors":"Kembrew Mcleod, Peter DiCola","doi":"10.21153/DLR2012VOL17NO2ART82","DOIUrl":"https://doi.org/10.21153/DLR2012VOL17NO2ART82","url":null,"abstract":"In this book excerpt, the authors address the role of two major legal exceptions to copyright protection in the music industry’s practices surrounding digital sampling. Although the United States law on the books requires a balance between the interests of copyright owners and sampling musicians, the business practice has been to mandate licensing in almost every instance. Despite this hurdle to a more balanced approach to sampling, the authors discuss several benefits that might come through doctrinal or statutory reforms, or even through developing best practices for claiming fair use.","PeriodicalId":43081,"journal":{"name":"Deakin Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2013-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67649235","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2013-02-01DOI: 10.21153/DLR2012VOL17NO2ART79
Richard Coverdale, Lucinda Jordan, J. Plessis
This article examines the findings from a survey of 207 regional small businesses and 68 regional lawyers that explored the small business experience of accessing legal services in rural and regional Victoria. In particular, it considers small business expectations of local legal practices, their degree of satisfaction with existing legal services and identifies current and potential demand and supply gaps. By doing so it seeks to determine potential areas in which regional law firms can improve, expand and refine their services in response to the current and emerging demands on them and the communities they serve.
{"title":"Providing Legal Services to Rural and Regional Small Business: Gaps and Opportunities","authors":"Richard Coverdale, Lucinda Jordan, J. Plessis","doi":"10.21153/DLR2012VOL17NO2ART79","DOIUrl":"https://doi.org/10.21153/DLR2012VOL17NO2ART79","url":null,"abstract":"This article examines the findings from a survey of 207 regional small businesses and 68 regional lawyers that explored the small business experience of accessing legal services in rural and regional Victoria. In particular, it considers small business expectations of local legal practices, their degree of satisfaction with existing legal services and identifies current and potential demand and supply gaps. By doing so it seeks to determine potential areas in which regional law firms can improve, expand and refine their services in response to the current and emerging demands on them and the communities they serve.","PeriodicalId":43081,"journal":{"name":"Deakin Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2013-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67649462","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2013-02-01DOI: 10.21153/DLR2012VOL17NO2ART87
Gilles Renaud
I went on to read that the goal pursued by the author, a lawyer with the Appeals Division of the Office of the Prosecutor for the International Criminal Tribunal of the former Yugoslavia (ICTY) and the holder of a Doctorate in Law, was quite ambitious: to make plain how international sentencing law and practice is not yet defined by exact norms and principles and to investigate and analyse the process of international sentencing in order to explain how an offender responsible for multiple deaths associated with a heinous motive often receives a sanction far inferior to that meted out by domestic courts.
{"title":"'Sentencing in International Criminal Law: The UN Ad Hoc Tribunals and Future Perspectives for the ICC' by Silva D'Ascoli","authors":"Gilles Renaud","doi":"10.21153/DLR2012VOL17NO2ART87","DOIUrl":"https://doi.org/10.21153/DLR2012VOL17NO2ART87","url":null,"abstract":"I went on to read that the goal pursued by the author, a lawyer with the Appeals Division of the Office of the Prosecutor for the International Criminal Tribunal of the former Yugoslavia (ICTY) and the holder of a Doctorate in Law, was quite ambitious: to make plain how international sentencing law and practice is not yet defined by exact norms and principles and to investigate and analyse the process of international sentencing in order to explain how an offender responsible for multiple deaths associated with a heinous motive often receives a sanction far inferior to that meted out by domestic courts.","PeriodicalId":43081,"journal":{"name":"Deakin Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2013-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67649561","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2012-10-09DOI: 10.21153/DLR2008VOL13NO1ART156
D. Glasgow
A movement of activist ‘animal lawyers’ has arrived in Australia. This article contends that Australian lawyers have a significant role to play in advancing the animal protection cause. Part I discusses the philosophical foundation of the modern animal protection movement and describes the important theoretical divide that splits it into animal ‘welfare’ and animal ‘rights’. Part II explains the Australian legal regime governing animal protection to show how the law acts as a site of exploitation. Part III explores the role of lawyers within the movement. It does this by appraising the obstacles in the way of animal protectionism and exploring what makes an effective lawyer advocate. It then uses a case study of battery hens to demonstrate the valuable role lawyers can play to support the animal cause. The views expressed in this article are the author's own.
{"title":"THE LAW OF THE JUNGLE : ADVOCATING FOR ANIMALS IN AUSTRALIA","authors":"D. Glasgow","doi":"10.21153/DLR2008VOL13NO1ART156","DOIUrl":"https://doi.org/10.21153/DLR2008VOL13NO1ART156","url":null,"abstract":"A movement of activist ‘animal lawyers’ has arrived in Australia. This article contends that Australian lawyers have a significant role to play in advancing the animal protection cause. Part I discusses the philosophical foundation of the modern animal protection movement and describes the important theoretical divide that splits it into animal ‘welfare’ and animal ‘rights’. Part II explains the Australian legal regime governing animal protection to show how the law acts as a site of exploitation. Part III explores the role of lawyers within the movement. It does this by appraising the obstacles in the way of animal protectionism and exploring what makes an effective lawyer advocate. It then uses a case study of battery hens to demonstrate the valuable role lawyers can play to support the animal cause. The views expressed in this article are the author's own.","PeriodicalId":43081,"journal":{"name":"Deakin Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2012-10-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67646240","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2012-10-01DOI: 10.21153/dlr2012vol17no1art73
R. Gear
Review(s) of: Parallel justice for victims of crime, by Susan Herman, The National Centre for Victims of Crime, 2010, 173 pages, ISBN 978-0-615-32610-8 (paperback).
{"title":"'Parallel Justice for Victims of Crime' by Susan Herman","authors":"R. Gear","doi":"10.21153/dlr2012vol17no1art73","DOIUrl":"https://doi.org/10.21153/dlr2012vol17no1art73","url":null,"abstract":"Review(s) of: Parallel justice for victims of crime, by Susan Herman, The National Centre for Victims of Crime, 2010, 173 pages, ISBN 978-0-615-32610-8 (paperback).","PeriodicalId":43081,"journal":{"name":"Deakin Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2012-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67649509","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2012-10-01DOI: 10.21153/dlr2012vol17no1art69
Patrick Ferdinands
This article contends that human life has an intrinsic value from the moment of its conception based on its potential use to the community. This value to the community demands protection from the state. However, there is also a need to balance this aim against the legitimate health interests of pregnant women. Abortions should be permitted only in circumstances where the abortion is necessary to preserve the pregnant woman from any serious danger to her physical or mental health. This article shows that the lack of uniformity in Australia’s criminal law in the area of abortion plays a part in unduly undermining the right to life of unborn children. Accordingly, there is a need for effective uniform criminal laws throughout Australia that properly protect the right to life of unborn children and are duly sensitive to the valid health interests of pregnant women that give rise to circumstances justifying abortion.
{"title":"How the criminal law in Australia has failed to promote the right to life for unborn children: A need for uniform criminal laws on abortion across Australia","authors":"Patrick Ferdinands","doi":"10.21153/dlr2012vol17no1art69","DOIUrl":"https://doi.org/10.21153/dlr2012vol17no1art69","url":null,"abstract":"This article contends that human life has an intrinsic value from the moment of its conception based on its potential use to the community. This value to the community demands protection from the state. However, there is also a need to balance this aim against the legitimate health interests of pregnant women. Abortions should be permitted only in circumstances where the abortion is necessary to preserve the pregnant woman from any serious danger to her physical or mental health. This article shows that the lack of uniformity in Australia’s criminal law in the area of abortion plays a part in unduly undermining the right to life of unborn children. Accordingly, there is a need for effective uniform criminal laws throughout Australia that properly protect the right to life of unborn children and are duly sensitive to the valid health interests of pregnant women that give rise to circumstances justifying abortion.","PeriodicalId":43081,"journal":{"name":"Deakin Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2012-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67648755","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"'Cases that Changed the Law' by Graham Fricke","authors":"M. McMahon","doi":"10.21153/DLR2012VOL17NO1ART75","DOIUrl":"https://doi.org/10.21153/DLR2012VOL17NO1ART75","url":null,"abstract":"Review(s) of: Cases that changed the law, by Graham Fricke, Strictly Literary, 2012, 158 pages, ISBN 9780987086556 (paperback).","PeriodicalId":43081,"journal":{"name":"Deakin Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2012-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67649222","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2012-10-01DOI: 10.21153/DLR2012VOL17NO1ART68
P. Miretski, S. Bachmann
On 11 June 2011, the United Nations Human Rights Council endorsed the ‘Guiding Principles for Business and Human Rights’ as a new set of guiding principles for global business designed to provide a global standard for preventing and addressing the risk of adverse impacts on human rights linked to business activity. This outcome was preceded by an earlier unsuccessful attempt by a Sub-Commission of the UN Commission on Human Rights to win approval for a set of binding corporate human rights norms, the so called ‘Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights’. This article identifies and discusses the reasons why the Norms eventually failed to win approval by the then UN Commission on Human Rights. This discussion assists an understanding of the difficulties in establishing binding ‘hard law’ obligations for transnational corporations with regard to human rights within the wider framework of international law. It elucidates the possible motives as well as the underlying rationale which led first to the adoption and then the rapid abandoning of the Norms. The discussion also sheds light on the future of the voluntarism of business human rights compliance, on the likelihood of finding alternative solutions, and finally on the rationale for, and effect of, the ‘Guiding Principles for Business and Human Rights’.
{"title":"The UN 'Norms on the Responsibility of Transnational Corporations and Other Business Enterprises with Regard to Human Rights': A Requiem","authors":"P. Miretski, S. Bachmann","doi":"10.21153/DLR2012VOL17NO1ART68","DOIUrl":"https://doi.org/10.21153/DLR2012VOL17NO1ART68","url":null,"abstract":"On 11 June 2011, the United Nations Human Rights Council endorsed the ‘Guiding Principles for Business and Human Rights’ as a new set of guiding principles for global business designed to provide a global standard for preventing and addressing the risk of adverse impacts on human rights linked to business activity. This outcome was preceded by an earlier unsuccessful attempt by a Sub-Commission of the UN Commission on Human Rights to win approval for a set of binding corporate human rights norms, the so called ‘Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights’. This article identifies and discusses the reasons why the Norms eventually failed to win approval by the then UN Commission on Human Rights. This discussion assists an understanding of the difficulties in establishing binding ‘hard law’ obligations for transnational corporations with regard to human rights within the wider framework of international law. It elucidates the possible motives as well as the underlying rationale which led first to the adoption and then the rapid abandoning of the Norms. The discussion also sheds light on the future of the voluntarism of business human rights compliance, on the likelihood of finding alternative solutions, and finally on the rationale for, and effect of, the ‘Guiding Principles for Business and Human Rights’.","PeriodicalId":43081,"journal":{"name":"Deakin Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2012-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67648693","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2012-10-01DOI: 10.21153/DLR2012VOL17NO1ART72
Ricardo A Sunga
The International Convention for the Protection of All Persons from Enforced Disappearances establishes the Committee on Enforced Disappearances to oversee its implementation. Its reporting, individual communications and inter-state communications procedures have enhanced features that build on the experiences of other monitoring bodies with similar procedures. Its urgent visit and referral procedures contain novel elements that can promote compliance with the right not to be subjected to enforced disappearance. While issues of duplication, lack of enforcement powers, competence ratione temporis and time and resource constraints set the parameters of what it can and cannot do, the Committee, as part of a system of international and regional bodies, has the potential to induce respect for human rights and to help move states toward the goal of compliance with the right not to be subjected to enforced disappearance.
{"title":"The Committee on Enforced Disappearances and Its Monitoring Procedures","authors":"Ricardo A Sunga","doi":"10.21153/DLR2012VOL17NO1ART72","DOIUrl":"https://doi.org/10.21153/DLR2012VOL17NO1ART72","url":null,"abstract":"The International Convention for the Protection of All Persons from Enforced Disappearances establishes the Committee on Enforced Disappearances to oversee its implementation. Its reporting, individual communications and inter-state communications procedures have enhanced features that build on the experiences of other monitoring bodies with similar procedures. Its urgent visit and referral procedures contain novel elements that can promote compliance with the right not to be subjected to enforced disappearance. While issues of duplication, lack of enforcement powers, competence ratione temporis and time and resource constraints set the parameters of what it can and cannot do, the Committee, as part of a system of international and regional bodies, has the potential to induce respect for human rights and to help move states toward the goal of compliance with the right not to be subjected to enforced disappearance.","PeriodicalId":43081,"journal":{"name":"Deakin Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2012-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67648778","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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