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Empowering Authors via Fairer Copyright Contract Law (Advance)

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The remuneration of Australian authors has been decreasing over the last few decades, partly due to unfair contracts between authors and publishers. At the same time, Australian copyright law appears to do nothing to address the problem. The freedom of contract doctrine that still prevails in Australian copyright contract law is not able to tackle the problem of unfair distribution of revenues effectively, and its shortcomings are not well addressed by either general contract law doctrines or collective bargaining in the publishing sector. This article argues that Australia should consider addressing the problem by introducing certain rights inalienability restrictions in copyright law that are available in a number of jurisdictions overseas. The article discusses the rationales of introducing such provisions under Australian copyright law, such as unequal bargaining power, the prediction problem, fairness and utilitarian approaches. It counters the arguments that alienability restrictions are ineffective, and refers to the most recent empirical studies that show the ability of some alienability provisions to increase author remuneration.

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