Like my proposal, your idea isn’t original either. Numerous academic lawyers and economists, notably Laurence Lessig and Richard Posner among the lawyers, have advanced similar arguments against intellectual property (or at least for its considerable attenuation). The most recent among the economists is a 2006 book by Boldrin and Levine called Against Intellectual Monopoly. Alex Tabarrok has a thoughtful critical review of it at the prominent econoblog Marginal Revolution. Some of the comment box discussion is worth reading too. I think I largely agree with Tabarrok, although as a pragmatist of sorts I would mostly advocate shortening the duration of both patent and copyright, and widening the scope of exemptions/defences to copyright as discussed in the primary post. Tabarrok’s idea of having different patent periods for different types of invention might also have merit.

Of course, it isn’t likely that any of this will happen any time soon, given the powerful vested interests involved and the fact that it’s all tied up in US bilateral “free trade” agreements these days, with huge economic sanctions for breach.

So much of our musical content is owned by the race. The diatonic scale, the rhythms of Africa, the Gregorian harmonies, our genetic inheritance. I am very hostile to the very notion that artistic output is a thing which can be owned. Indeed, I am hostile to the idea that an idea can be owned. My idea is that the idea that an idea can be owned is bollocks and you can have this for free. Credit, glory and thanks to the idea creator yes. Ownership no.

In a world where the notion of owning ideas had not taken root we might think of protecting IP in a different way as a very rare restriction of freedom when the market completely fails. Foreign investment decision are determined by a review board, not by a judge, and is based on national interest. The ACCC assess whether a certain business practice of merger is economically in the public interest. I think that IP copyright could be handle the same way by a board who make their judgment on the basis of evidence from industry and economic experts. The criterion for the judgment would be does restricting use of this (class of) IP increase or decreased total value and consumption of the class of IP? The default position would be, quite naturally, that completely free use of the IP will maximize total value of consumption. It would be up to the copyright claimants to make the case that restrictions were necessary.

As with “Kookaburra”, the riff appropriated from Hendrix’ “Third Stone from the Sun” – with less transformation, at that – is a substantial part of a very melodically insubstantial work – though by no means an artistically insubstantial one such as, say, “Kookaburra”.

Meanwhile, I think James’ brief is fit to go to the Parliamentary Counsel.

I’d also support Ken’s “whimsical affectionate” addition to the “satirical” exemption.

ps – maybe there was a royalty deal before “I’m Too Sexy” was released

In response to the dance mix example, here’s my final offer: what about exempting infringements where the offending material forms a substantial part of the offending work in proportion to any original creative material contained in that work. This would require judges to exercise a lot of discretion, but so does any test that involves redeeming social value.

I suppose you could amend the Act to provide that copyright is only infringed where a substantial part of the infringing work consists of a reproduction of some of the infringed work, as opposed to the current law where infringement occurs when a substantial part of the infringed work is used (irrespective of whether it constitutes a substantial part of the infringing work).

That would certainly remedy the Down Under/Kookaburra situation and would also no doubt make it easier for collage, and rap/hip hop digital sampling works. However the latter art forms don’t in fact usually have problems with copyright because typically they transform their copyright elements radically enough to constitute brand new works rather than mere reproductions of copyright work. Thus the question of whether a substantial part has been reproduced never arises. In my view that’s the case with Down Under as well. I think Jacobson J was simply wrong in concluding that the transformative use of kookaburra in Down Under was a mere reproduction.

A problem with your suggestion would arise, for example, with dance mix recordings used in nightclubs. They may consist of a digitally strung-together series of substantial extracts from pop etc songs. No single song forms a substantial part of the whole dance mix, but nor is there any form of artistic or other transformation (other than some sort of fade or other effect at the transition) or any redeeming societal purpose to the usage. It’s just for entertainment and profit. Why should such a usage not attract an obligation to pay royalties? The philosophy/principle behind the various fair dealing exceptions/defences is essentially that a usage of an untransformed substantial part of a copyright work may be protected where that usage is for a purpose which the Parliament has concluded is one that adds societal value in some way, generally one which enhances or extends free speech or broadens cultural/artistic expression e.g. through facilitating/allowing research or study, criticism or review etc. Parliament concluded (rightly in my view) that satire and parody perform a valuable societal role in that sense and in my view other forms of comment that can’t comfortably be described as either satire, parody, criticism or review also play a similarly valuable societal role. Down Under’s whimsical social comment is a good example. It’s difficult to mount a reasonable case that a nightclub dance mix fulfills any such societal role, it simply use someone else’s work to make a fast buck with no significant input of creative skill or effort, although no doubt some nightclub patrons would disagree.

My own inner moral voice seems to be telling me that the real defense here is precisley that the offending part doesn’t amount to a substantial part of the infringing work. If it underlay the whole song, you could fairly cal it a rip-off.

Wouldn’t that be a promising angle for amendment?

Nice post, Ken.