Curing the Authorless Void: Protecting Computer-Generated Works Following IceTV and Phone Directories
McCutcheon, Jani, Melbourne University Law Review
This article builds on the author's recent article "The Vanishing Author in Computer-Generated Works: A Critical Analysis of Recent Australian Case Law'. That article explained how recent Australian case law has seriously undermined copyright protection for works which are substantially shaped by software such that they lack a human author. The article argued that such works, if otherwise original, should not be denied copyright protection solely because they are computer-generated. This article thoroughly examines and evaluates three possible reform options: (1) deeming authorship of computer-generated works; (2) classifying computer-generated materials as subject matter other than works; and (3) sui generis protection. This article will also explore the sometimes difficult issues these options generate.
CONTENTS I Introduction II Possible Reforms III Option h Deeming Authorship of Computer-Generated Works A The Originality-Authorship Corollary B Definition of 'Computer-Generated Work' C Who 'Undertakes the Arrangements Necessary' for the Creation of the Work? D Analogous Guidance from Film and Sound Recording Authorship 1 Interpretation of the Phrase in Australia 2 Interpretation of the Phrase in the United Kingdom 3 Analogising the Definition to Computer-Generated Works E Judicial Consideration of s 9(3) of the UK Act F Application of a Deeming Provision to Various Computer-Generated Works 1 Special Issues with Respect to Multi-Party Works G Duration of Copyright under a Deeming Provision H Moral Rights and Deemed Authorship I Amend the Definition of a Work of Joint Authorship? 1 Could the Definition of a Work of Joint Authorship be Amended? 2 Where Authorship is Deemed 3 Collaboration by Joint 'Authors' 4 Non-Separability of Contributions 5 Reform of the Definition of Joint Authorship? J Conclusions--Option 1 IV Option 2: Classify Computer-Generated Materials As Subject Matter Other Than Works A How the Scheme Would Work 1 Define Computer-Generated Material 2 Employ a Deeming Provision B Resolution of Problems C Classifying CGM D Issues Arising Due to the Breadth of the Definition 1 Breadth of 'Computer-Generated Material' 2 Potential for Overlap between CGM and Other Subject Matter 3 Computer-Generated Material Compared to Existing Part IV Subject Matter E Exclusive Rights F Ownership G International Obligations and Constitutionality H Duration I Conclusions--Option 2 V Option 3: Sui Generis Protection A Subsistence Criterion--Substantial Investment in Obtaining, Verifying, or Presenting the Contents of a Database 1 Substantial Investment 2 Obtaining, Verifying or Presenting the Contents B Who Makes and Owns CGM? C Exclusive Rights D Duration E Exceptions F Overlap G Constitutionality H A Registration System? I Conclusions--Option 3 VI Conclusion
In an earlier article (hereafter, 'Part I') (1) the author discussed how IceTV Pry Ltd v Nine Network Australia Pry Ltd ('IceTV'), (2) Telstra Corporation Limited v Phone Directories Co Pry Ltd ('Phone Directories') (3) and Acohs Pty Ltd v Ucorp Pry Ltd ('Acohs') (4) seriously diminish, if not eliminate, copyright protection in computer-generated material ('CGM') which is substantially shaped by software. IceTV warned of 'new challenges in relation to the paradigm of an individual author's which particularly affect computer-generated productions such as large, complex databases and compilations, multi-authored productions, autonomously generated art and literature, and productions where it is practically impossible to identify the human authors. …