the Becker - Posner Blog

Richard Posner, one of the key figures in the Law and Economics approach of legal analysis, now has a blog. To call it a blog probably belittles it. Posner is a very very smart man with very particular views on law. Being a member of the Chicago school, he is a passionate neo-liberal, but being a neo-liberal he is very critical of corporatism and moderm political economics. It should be a good read.

Here's an excerpt:

A major theme in the comments is that it is impossible to assign a numerical probability to an adversary's attack, unless the attack is imminent. That is true. No one could have said in 1936 that if Hitler was allowed to reoccupy the Rhineland, there was a .__ probability that he would eventually attack France. However, we frequently have to act under conditions of profound uncertainty. It would be paralyzing to suggest that we should never act unless we can quantify the expected benefits and costs of our acts (there would be very few marriages under this approach).

Also discovered an Australian IP blog which seems promising. Its called Weatherall's Law. LIke most IP scholar, its seems as if Kim Weatherall is being rather critical of the Free Trade Agreement. Thank god for that. Problem is - it past without comment, even though Chapter 7 WAS the most detailed of all the provisions in the FTA. I think the Australian Film Industry did a disservice to the rest of the country by focusing so heavily on the cultural quota issue rather than the general thrust of the FTA to bring our laws in 'harmonisation' (what a fucking euphemism) with the DMCA without giving us the same rights to fair dealing or fair use.

There is no copy-right, there is only use-right.

Student IP (follow up)

Matthew has written his own summary of the debate at his blog here.

Regardless of the legal issues, the crux of the issue to me is why Media Departments want to have copyright in student works. I can only think of three possible reasons:

(a) Because they believe that to be the law. However, given the tendency of the staff in these institutions to dismiss legal arguments as to why this isn't the case, I really don't think it has anythinh to do with the law.

(b) As a form of promotion for the media department. I don't believe this either. UTS doesn't pretend to exert ownership over its student works, it merely requires them to put 'produced at University of Technology Sydney' at the end of the films. That seems to be a far more fair, and legal, approach to promotion. So I don't this is the reason. This leads me to:

(c) Its about power over the students. Its about making the students feel like they 'owe' the Department something and when they win money, they should give it to the Department (as a friend was asked to do by Macquarie). Thankfully, when we won the $15K for the Gardener, I had already done all this research and given it to the Department... They said NOTHING to us about either the winning of the Nescafe Short Film Awards nor about the money they would have loved to have. In stead, they hit someone for the $800 they were paid to be screened on the ABC. Pathetic.

I'm willign to accept other possibilities - but I can't think of any.

Incidentally, Matthew Clayfield e-mailed his course convenor who claimed that: ""most universities require students to assign copyright to the university but opinions at Bond differ".

Hmm.

Bond University gives ownership to the student and requires a specificed agreement to overrule thatResearch Guidelines

UNSW claims ownership in a number of very specific cases, but provides a number of exceptions including 'creative works': see Section 3.1 and 3.5 of their Intellectual Property Policy

University of Sydney does not claim ownership in Student works generally but requires an actual contractual assignemnt to gain IP: see Division 3 (s6) of the University of Sydney (Intellectual Property) Rule 2002

Similarly, University of Western Sydney of doesn't claim IP generally but to obtain it will use specified agreements. See Rule 2.5 of their Intellectual Property Policy. Specifically they say that: "In accordance with conventions in the university community for many years, the University will not claim ownership of copyright in scholarly works." So, according to at least one University, its a convention to NOT claim IP. Hmm.

The University of Melbourne in their policy on Student Intellectual Property at 2.2 states that "A student at Melbourne [university] automaticlly owns any intellectual property they create pursuant to their studies unless IP ownership is governed in some way by a third party agreement.

Thats enough for the time being.

Student IP (continued)

This was originally a comment in reply to Tony's comment, but I'm posting it because I raise some additional arguments and I want to archive them for the forthcoming article:

Hi Tony CC,

I'm glad you followed me onto my own blog. You're welcome to continue abusing me if it makes you feel better about yourself. I don't need nor seek your approval of my intellect, grasp of the english language, or cinematic tastes. If you must know, I'm a fan of Tarsem's 'the Cell', Michael Bay's 'Armageddon', the Wachowski Brothers' 'Matrix Revolutions', and Star Wars.

FWIW, I was also the Stupid Law Student who handed in their thesis with a word count 50% over what was stipulated. I don't know if I have been docked marks, but I accepted that I may be docked marks. Thats fine. I'm the kinda guy who does their thing regardless.

As for the first owner being 'whoever makes the arrangements to make the film', I note that you convinently left out the clarification in the next sentence: "In practice, this person is usually known as the producer". It further clarifies that in the absence of a producer, it will be the person who shot the film. Given that students films generally have credited Producers, then the Department will have an uphill battle to prove that they really are 'the Producers' on the project and not Executive Producers (which is what they amout to).

Remember, the act itself says nothing about copyright residing in those who arrange for a film to be made - that's just Copyright Council interpretation. It explicitly says at s92(2) that the copyright resides in the makers and in s189 that makers are 'the producer, the director and the screenwriter'. s191(2) specifically excludes 'subsidary producers' such as executive producers, associate producers, etc as being within the definition of s189.

Please keep up, Tony. I'm citing the actual source of copyright (which is the Copyright Act and is ONLY the copyright act) ; you're referring to the crib notes.

As for the crusade fulled with magical tales of me and my lawyers fighing evil media department... I now plan to launch that crusade; if only to cut off your nose to spite your face.... though your face is doing such a good job of spiting your nose.

Film Students and Copyright

Copy and pasted from the above link. A very cranky stu going on a rant:

... however, your university work is NOT the property of the university. Unless you've explictly signed a contract which assigns your IP to the university, its going to be very hard for them to prove that they actually own it. Remember, you're PAYING them to go to university.

(Though Bond is private, so there may be differences. BUt check the contracts)

To which the response by a Tony Coca-Cola was:

Stupid law students.
Yeah, I don't think so Stuart.
If a film is made for assessment, using University facilities and the like, it's therefore technically a University production.
It's kind of a weird thing, but they don't enforce it too stringently, so it's usually all cool.
The only time it gets dodgy is when there's things like copyright issues to consider (e.g. you use a non-original piece of music in a student film and don't get the rights)
It's okay when it's only for assessment, but once it's out of the university and on your showreel or in a festival or something, then the University becomes liable and that's when it all goes to shit.
But anyway, something to talk about.

Which, of course, got me right riled up. A case of bad law + calling me a stupid law student. So I responded heavily:

is work on copyright published by the Attorney-General's department.

"If a film is made for assessment, using University facilities and the like, it's therefore technically a University production."

Why? What is your LEGAL BASIS for this assertion? If I lend you my video camera to make a short film, do I then own the copyright in it? If you PAY ME to use my video camera, do I then own the copyright in it?

And what part of the copyright do they own? The literary component? The cinematograph film? The soundtrack?

Read this legal paper on the issue:

Who Should Own Student IP

s98 of the CPA deals specifically with the ownership of copyright in the cinematograph film (as separate from the soundtrack and literary components).

The assumption is that the maker of the film owns the copyright (subsection 2) unless another party provides 'valuable consideration' for the maker to produce the film, in which case that other party owns the copyright (subsection 3). FWIW, 'maker' is defined in s189 to be 'the director, the producer, and the screenwriter'.

The question then, which is addressed in the above article, is what is considered 'valuable consideration' in the context of university. Is them giving you equipment to make a film and asssing you 'valuable consideration'? Thats a not that hard a question.

I don't think it qualifies as valuable consideration. Afterall, you're PAYING to be doing that course - either through HECS or upfront fees. In other words, theirso called 'valuable consideration' is hardly in exchange for you making the film for them. Rather, their provision of equipment and services is IN EXCHANGE for you directly or indirectly forking over the cash to use them. It would be akin to me hiring a camera from, say, Lemac and then providing that camera and THEN saying they own copyright in my work. Not fucking likely.

Unless you've EXPLICITY signed an agreement assigning ownership of the work to the University, its goign to be very hard for them to prove that it is.

Which is exactly why University's are now making their research students sign contracts governing control over IP... and most Universities use 'co-ownership' deals with students... if they get the IP assigned at all.

When I handed in my thesis, I signed an agreement to let the university put the thesis in the library.

Don't believe, talks to your solictors. I did the research and talked to a number of differen firms, and they all agreed with me. Copyright resides in the students unless they sign an explicit agreement to the contrary.

http://www.bond.edu.au/research/hdr/h_9guidelines.htm

"The University makes no claim on intellectual property (IP) developed by students in the normal course of their studies or research unless its ownership is governed in some way by a ‘specified agreement' (e.g. a research contract; ARC, NHMRC or other grant; industry funded scholarship; CRC deed)."

It degenerated from there because 'Tony' didn't believe me and said that somehow media departments are exempt from this. I got cranky cause its the same shit I got from my University in my honours year. Despite being presented with LEGAL arguments about why students own the IP, the department simply refused to believe us... as if steadfastly holding to such a belief somehow made it the law. Sorry, but ownership is a question of law, not what the head of department wants it to be.

I've archived this as much for my own purposes and ego as anythign else. If you feel I've misrepresented the debate, feel free to chime in. I've yet to hear a convincing *legal* argument as to why Universities SHOULD own works Student's have completed for assessment, particularly in Australia which doesn't have work-for-hire in copyright. Copyright in this country is dictated by the CPA and contract law... that's about it.

Things.

Finished for over a week now. Done a bit of writing. Trying to plan out my writing projects... tough. I'm thinking of optioning a Warren Ellis comic... but only one issue of Transmet. I don't even want Spider Jerusalem in it. I wonder how much it'd cost. A lot, I guess.

In case you hadn't noticed, I've redesigned the blog.

Waiting for AE to render atm. We're working on a big pitch for Thursday, and rather than have standard powerpoint slides, the CEO (who is doing the pitch) is going to have a series of Quicktime movies done in AE (at 1024 x 768) strung together in Keynote. It'll be freaking sweet, but it'll be a project which will have taken 2 guys 3 or 4 days to do. Expensive powerpoint, but its a project worth near on a quarter of a million, so its worth it.

All Your Money Belong To Us.