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Thematic Issue: Conceptions of Ownership / General

In Support of Tolerated Use: Rethinking Harms, Moral Rights and Remedies in Australian Copyright Law


Kylie Pappalardo and James Meese

In this article, we propose a thought experiment: what if copyright law could better incorporate social and cultural norms around content engagement and re-use? We draw on empirical research that explores the norms of different creative communities when they reuse the work of others, and the norms of consumers around sharing. We outline how both creators and copyright users engage almost daily in small-scale infringement that does not substitute or disrupt copyright owners’ established markets, either because the uses are highly transformative, or personal and unremarkable. We suggest that copyright could better reflect these norms if both norms and moral rights were considered as part of a remedies assessment. We propose that in cases where work has been attributed and treated with integrity, and where the use does not directly cause economic harm to the copyright owner, courts should award only nominal damages and decline to order injunctive relief.

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(2019) 42(3) UNSWLJ 928: