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«Principal Editor Professor Brian Fitzgerald Head of School of Law, Queensland University of Technology, Australia With the assistance of Jessica ...»

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His honour considered the relevant authorities and extracted some guiding principles. ‘Authorise’ is to be construed according to its dictionary meaning of ‘sanction, approve, countenance’. 238 Authorisation does not have to be a positive step: “inactivity or indifference, exhibited by acts of commission or omission, may reach such a degree as to support an inference of authorisation or permission”. 239 Mere provision of the means of infringement is not enough. 240 Mere inactivity without knowledge will Copyright Act 1968 (Cth) s 36(1).

Universal Music Australia Pty Ltd v Sharman License Holdings Ltd (2005) 220 ALR 1.

Ibid 90, citing University of New South Wales v Moorhouse & Angus & Robertson (Publishers) Pty Ltd (1975) 133 CLR 1 ('Moorhouse'), 12.

Universal Music Australia Pty Ltd v Sharman License Holdings Ltd (2005) 220 ALR 1, 90, quoting Adelaide Corporation v Australasian Performing Right Association Ltd (1928) 40 CLR 481.

Universal Music Australia Pty Ltd v Sharman License Holdings Ltd (2005) 220 ALR 1, 98; Copyright Act 1968 (Cth) s112E.

not be enough.241 Mere knowledge is not enough. 242 An implied general permission or invitation does not require specific knowledge. 243 In Universal v Sharman, Sharman Networks was found to have authorised the mass infringement of copyright in sound recordings by providing the software for the Kazaa peer-to-peer filesharing network. The two most important factors considered were that (1) Sharman provided the facilities for infringement; and (2) Sharman had knowledge that Kazaa was being used predominantly to share copyright works. 244 Wilcox J did not accept that there was a large proportion of legal filesharing traffic. 245 It was not important that Sharman did not have actual knowledge of infringing acts, merely that it knew that a major proportion of traffic must be infringing. 246 Next, Sharman had a financial interest in increasing filesharing, because of increased advertising revenue. Because most filesharing is infringing, Sharman therefore had a financial interest in high rates of infringement. 247 Sharman did nothing effective to curb the illicit filesharing on their networks. 248 Sharman ran some campaigns which implicitly promoted illicit filesharing. 249 Critically, Wilcox J found that Sharman could exercise some degree of control over its users. 250 In Universal v Cooper, 251 Cooper operated a website where other parties could post hyperlinks directing users to remote websites where infringing sound recordings could be downloaded. The Federal Court found that Cooper had knowledge of the infringing material, his website facilitated the infringement of copyright, and he had power to exercise some control over the links, but did not do so. 252 Accordingly, Cooper had authorised the infringement of copyright in the sound recordings, notwithstanding that Adelaide Corporation v Australasian Performing Right Association Ltd (1928) 40 CLR 481.

Universal Music Australia Pty Ltd v Sharman License Holdings Ltd (2005) 220 ALR 1, 90, citing Nationwide News Pty Ltd v Copyright Agency Ltd (1996) 65 FCR 399, 422.

Moorhouse (1975) 133 CLR 1, 21.

Universal Music Australia Pty Ltd v Sharman License Holdings Ltd (2005) 220 ALR 1, 49, 98.

Ibid 49.

Ibid 50.


Ibid 99.

Ibid 98.

Ibid 100.

Universal Music Australia Pty Ltd v Cooper (2005) 65 IPR 409.

Ibid 429.

none of the infringing material was hosted under his control, or that the links to the websites hosting the infringing material were placed on his website by other users.

Although the decisions in Universal v Sharman and Universal v Cooper were confined very tightly to the facts of the cases, we are able to see how the same principles could be applied to find a computer game manufacturer liable for secondary copyright infringement. NCSoft provides the means of infringement, could be shown to know of the infringement (depending on how prevalent it is), and have the power to stop such infringement (MMORPGs are much more tightly controlled than distributed filesharing networks). It is also possible that NCSoft could be shown to engage in tacit promotions of infringement in their advertising materials.

The fact that NCSoft’s game obviously has many non-infringing players may be the crucial point in any such litigation. In this case, the game developer could probably successfully argue that it should not be held responsible for the infringing behaviour of a small number of its players.

NCSoft in this case may be able to escape secondary liability in Australia.

However, we must consider whether this is the approach we want to take when we are shaping our digital environments. Are we certain that we only want people to be able to role-play with their favourite media icons in spaces which have been licensed by the appropriate publishers? If a provider of a virtual world made a space (like a park) where players could express themselves as they wanted, should they be liable when a significant portion of those players express themselves in ways that draw on copyright portions of their popular culture?

The disadvantages to such an approach are significant. Primarily, only people who have the ability to pay pop-culture creators have the opportunity to play – at least in the offline world, merchandisers cannot (completely) stop children from using their imagination or someone else’s toys to role-play. Next, we lose a great potential for creative re-expression – the environment must be controlled by the owner or a licensee, meaning that the potential for expression is limited to their ideas of ‘safe’ playing with iconic characters. We also lose the ability for players to mix genres and media – Marvel characters will be segregated not only from DC Comic superheroes, but also dinosaurs, spacemen, and Walt Disney characters.

The qualitative value of play is reduced because it is confined to the boundaries of corporate merchandisers.

The better solution is to exempt this type of play from copyright infringement, either by determining that it does not reproduce a substantial part of the original works, or that it should be excused as a fair dealing or fair use of material. Unfortunately, current Australian law does not support such an approach.

Machinima Machinima is the art of filmmaking using computer generated graphics in real-time virtual worlds. Unlike traditional animation, machinima makes use of readily available virtual worlds, typically computer games, where “characters and events can be either controlled by humans, scripts or artificial intelligence”. 253 Machinima allows filmmakers to use a preexisting physics engine (and artwork, characters, and scenery) from a video game in order to develop a compelling story, without the high costs associated with either live-action filming or traditional animation.

Essentially, the actors in a machinima film are able to use the game’s controls to express themselves, bringing their characters to life through acting, rather than animation. The output of the game, from the point of view of one of the actors or a dedicated camera operator, is captured on a computer for later editing. Because the animation in a game is somewhat limited as to the expressions and movements of the characters, the voice acting and soundtrack that is added to the film plays a very important role in setting the mood.

Machinima involves the re-purposing of computer games for the creative expression of filmmakers. As a film technique, machinima has distinct advantages which are readily apparent. The equipment required is relatively inexpensive consumer hardware and software. Many of the art resources of the game can be re-utilised, meaning that the filmmakers can focus on the important aspects of acting, filming, and editing. Characters can be controlled by actors in real-time, instead of painstakingly animating each movement. Given the considerable budgets of films produced today, machinima provides an excellent avenue for filmmakers to express themselves on an extremely low budget.

The problem faced by machinima filmmakers is that there is great uncertainty as to their legal rights to create and distribute their films.

Computer games are both literary works and cinematograph films in Machinima.org, ‘What is Machinima? – The Machinima FAQ’ http://machinima.org/machinima-faq.html#what at 4 September 2006.

copyright law, 254 and may also include original dramatic, musical, and artistic works, as well as many sound recordings. Reproduction of a substantial part of this material in a film will generally not be legal without the permission of the copyright owners. Whether a machinima film could be said to have reproduced a substantial part of the copyright cinematograph film in any given computer game is questionable; however, the copyright in the many individual elements that make up the film will almost certainly be infringed.

Most game publishers do not object to the use of their games by machinima filmmakers, and in many cases, actively encourage their development, by hosting competitions, film festivals, and even introducing features into the game specifically for filmmakers. 255 However, as machinima becomes more popular, and commercial releases of machinima films become more common place, or films which are critical or reflect poorly on the original game are created, the copyright owners may well begin to object. At that point, machinima filmmakers may find themselves in a very difficult legal situation.

Modifying the game to remove all copyright artwork is an option for filmmakers who only want to use the physics engine from the game. Many games provide developers with a way to create ‘total conversions’ of their game, in effect replacing all the visual elements of the game. This option, while certainly possible for some filmmakers, is generally unattractive for the majority of machinima creators. Stripping the game back to its bare physics engine is a lot of work for experienced programmers and artists.

The advantages provided by the simplicity of machinima are, to a great extent lost, if in addition to directors, actors, script-writers, editors, and voice actors, the production crew must include experienced programmers and graphic designers. The game would no longer provide a ready-made framework for the creative expression of filmmakers, but would instead require many hours of intense preparatory work. A more subtle drawback Galaxy Electronics Pty Ltd v Sega Enterprises Ltd (1997) 75 FCR 8.

For example, Red vs Blue http://rvb.roosterteeth.com is a popular series which is created using Bungie’s Halo game. Machinima in Halo was mainly possible due to a bug in the game, whereby the character model could move his weapons and arms without his head moving. When Bungie released Halo 2, they fixed this bug, but added a feature in multiplayer modes where a player can control the head independently of the gun, a feature which has no purpose or use in actual play. See Bungie.net, ‘Red vs.

Blue: The Interview Strikes Back’ http://www.bungie.net/News/TopStory.aspx?story=rvbinterview at 4 September 2006.

to this approach is that the popular significance of the game itself is lost.

Machinima filmmakers are often fans of the game, and often make many references to the game and the game community in the film. It is often the community that has risen around the game that provides the immediate popular outlet for the film. Removing most of the aspects that make the game recognisable would alienate the film from its heritage, and the filmmakers from their community.

If the copyright owners in computer games begin to enforce their rights with respect to machinima creators, the burgeoning industry is likely to suffer. The greatest risk is not that machinima will not be created at all, but rather that only 'safe' machinima, which is acceptable to the owner of the copyright in the game used, will be permissible. Machinima as a genre provides possibilities for many people who would not otherwise have the opportunity to express themselves in film. Its utility quickly evaporates if it becomes merely a tool for the dissemination of advertisements for the copyright owner's game or point of view.

Machinima, as a tool which provides creators with an engine of expression and a means to represent their culture, should be encouraged. Machinima isn't about infringing copyright in computer games – it is unlikely that an expressive film of this type would substitute for the game in any way.

Further, computer games are generally not designed with the aim of making money from licensing their use to makers of machinima. Indeed, the attraction of the genre seems to be that it is cheap, that license fees are not payable, and that the games are attractive to the filmmakers as games first, and become vehicles for their further expression second. This may change as machinima becomes more accepted and platforms are designed specifically for use in filmmaking, but it does not seem to be the case at the moment. To use copyright law to suppress the creation of these films seems to be counter-intuitive, particularly since it is likely that only negative portrayals will be suppressed, given the gaming industry’s acceptance of current films.

Conclusion These three examples show a theme of tension in Australian copyright law, between the interests of copyright owners, game developers, game players, and third party developers. The first example, Blizzard v bnetd, shows that makers of interoperable programs, which should be protected by the exceptions in Australian copyright law, are at significant risk of infringing the anti-circumvention provisions, which are not protected from exclusion by contract.

The second example, Marvel v NCSoft, shows that players of games who want to role-play with their favourite characters from popular culture are likely to infringe copyright in those characters when they play online, even though their corresponding offline actions would not be likely to attract the attention or suit of the copyright owners. The shift to the online environment makes it easier for pressure to be applied to the parties in control of playing spaces, and the value of playing in these spaces may be significantly curtailed by restrictions on the subject matter of role-playing.

In order to avoid this homogenisation of play in online spaces, Australian law should move not only to ensure that secondary copyright liability should generally not attach to the providers of online spaces in this manner, but that this sort of play with popular culture should not constitute infringement of copyright at all.

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