Tuesday March 1, 2011

Copyright is broken, how do we fix it?

The Hon Michael Kirby

Last week some of the finest legal minds in Australia gathered at Balmoral for a blue sky discussion on the future of copyright law.

The venue was chosen to honour the conference’s special guest, Professor Adrian Sterling, a distinguished contributor to the field of intellectual property law – national, international and regional copyright, computer and data protection law. Professor Sterling went to school in Mosman and used to swim at Balmoral. The trophy he won in 1938 at Cahill’s Baths for the 11 Years Swimming Championship was, he says, “the beginning and the end of my sporting career.”

The Commonwealth Attorney-General, The Hon. Robert McClelland, opened the conference with a call for ‘fresh ways of thinking’ about copyright in a digital world. Governments, he said, are being asked to find “a national solution to a global problem.”

Dr Francis Gurry, Director General of the World Intellectual Property Organization (WIPO), warned that if the copyright system did not adapt to the radical structural change introduced by digital technology and the internet, “it will perish.”

That reality was given context by the The Hon Michael Kirby, who spoke of the affect of intellectual property law on the availability of antiretroviral drugs for HIV sufferers. The world, he said, would not stand by and watch millions of people die of AIDS in the name of IP. The Brazilian government, for one, has acted against IP owners to protect public health.

Achieving balance between intellectual property owners and users, said Professor Sterling, was the first of two crucial challenges for copyright in the third millenium: “private rights and public needs are not in opposition but form an interdependent double helix and should be mutually formulated as such.”

The second issue he highlighted was the absence of internationally accepted procedures for dealing with the infringement of moral and economic rights on the internet. Or in space… He called for a ‘cosmic copyright system’ with the objective Ius auctoris ubique – copyright everywhere.

By not responding to these two challenges, he warned, “copyright is weakened and the public interest in the ordered regulation of copyright is increasingly prejudiced, possibly to the point of extinction in some areas.”

“We want a licence to drive on the internet.”

In support, Liam Wyatt of the Wikimedia Foundation later told a story about Wikipedians, who care more about copyright and intellectual property law than most.

France has no ‘Freedom of panorama’ and copyright has recently been exercised on the image of the Eiffel Tower at night. This in turn has greatly exercised Wikipedians who take pains to publish appropriately – see the discussion page. Their approach and attitude is hopefully, in the digital future, the norm.

The Hon Michael Kirby said copyright reform needed a modern Martin Luther, a return to first principles. The Hon Justice Arthur Emmett, Federal Court of Australia, spoke on ‘Roman Law, Private Property and the Public Domain: Lessons for Copyright Policy,’ a fascinating look at how Roman law dealt with res incorporales – ‘the intangible thing.’

So, how might copyright work in the digital environment?

WIPO’s Dr Gurry outlined three principles:

  1. neutrality to technology and to the business models developed in response to technology (“it is not the role of copyright [law] to prop up moribund business models”);
  2. comprehensiveness and coherence in the policy response (there is no magic bullet, “an adequate response is more likely to come from a combination of law, infrastructure, cultural change, institutional collaboration and better business models”); and
  3. more simplicity in copyright (“we risk losing our audience and public support if we cannot make understanding of the system more accessible”).

Professor Brian Fitzgerald, Queensland University of Technology, suggested a market-driven system based on remuneration for access to a work rather than use of a work. He noted the Google Book Search Settlement Agreement where Google shares revenue with rightsholders via a Books Rights Registry.

Professor Sterling proposed the establishment of a universal licensing agency, based on ‘recordation’ (rightowners proactively supply details of their respective rights) and a ‘collection society’ to administer use of the repertoire anywhere in the universe. Blue Sky thinking

What might the relevance be to Mosman Library and Mosman Council?

Libraries are not faring well with the transition of books and other cultural materials to digital formats. No equivalent to the Public Lending Right exists for digital works. (We urge you to view Ken Fitch’s presentation The case for a Digital Lending Right.) In the near future, libraries may be restricted in the range of works they offer their users. Quiet, slow moving and often conservative institutions, libraries seem ill-equipped to compete with global companies like Google, Apple and Amazon.

The success, for example, of Apple’s iTunes store suggests that most people will happily pay a small fee for instant access to an authorised work (a song or television show) rather than spend time searching for and downloading an unauthorised copy that may not be complete or of appropriate quality. That is, the market has demonstrated that they are willing to pay for convenience. Libraries do not offer a similarly convenient method for accessing digital works, and indeed digital distributors are actively working against libraries having that ability, with the very real possibility that libraries as lending institutions become marginalised in the digital world with an ever-decreasing user base with which to respond to these restrictions to its traditional role as a public source of information ‘comprehensive’ and ‘free to all’.

However, libraries are well placed in the digital world to enhance the use and quality of their local, place-based collections by sharing these on the web. The National Library has demonstrated this with their Newspapers Digitisation Program and, on a much more modest scale, Mosman Memories of Your Street shows a public appetite for collaborative story-telling and local histories.

Dr Terry Cutler, Deputy Chairman of CSIRO and one of the authors of the Venturous Australia report, spoke of the importance of enabling collaboration through open licensing. Most innovation, he said, is cumulative – ‘combining things’ – and copyright should not impede that creativity. For a small economy, with a tiny research and development sector, this is especially important.

A number of Australian government agencies now license use of their copyrighted materials under Creative Commons. Professor Anne Fitzgerald, Queensland University of Technology, noted that the rationale for copyright in government is not the same as for creative works. The primary intent is that documents are circulated in a reliable and accurate form. Copyright is important, she said, to state the authority and veracity of government information, but should be exercised openly.

For Local Government Authorities, the benefits of enabling digital information flows include efficiencies from data reuse and opportunities for innovation, both within (across business units, for example) and without (app developers being one target group).

Professor Sterling noted at the lunch in his honour the excellent reputation of Antipodeans in copyright law. The internet is global, and responses to copyright law will necessarily be international, but we are fortunate to be represented by such a formidable team.

Thanks to those who tweeted the conference via #blueskycr. Some of the quotes are taken from their live reports. Any errors are the blogger’s.

Video: Dr Francis Gurry, Director General of the World Intellectual Property Organisation

— Posted by Bernard D, Internet Coordinator in  |  Permalink





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