The living and the dead – the arteries and the capillaries: Part One

Cross posted from the Mandarin.

Image result for human lung river delta

This disposition to admire, and almost to worship, the rich and the powerful, and to despise, or, at least, to neglect persons of poor and mean condition, though necessary both to establish and to maintain the distinction of ranks and the order of society, is, at the same time, the great and most universal cause of the corruption of our moral sentiments.

Adam Smith, 1759

Arteries and capillaries

In a book that’s very interesting and impressive, even if it doesn’t quite rise to the stellar opinion its authors have of it, Adrian Bejan and Peder Zane focus on ‘vascularisation’ or the ‘dendritic’ – tree-like – structures from which so much of our world is built. From trunks grow many branches on each of which grow twigs, then down to leaves whereapon the same structures grow within each leaf.1 This is very common. With this post already having adverted to four such systems – the two illustrated in the graphic above, trees and the circulatory system. 2

In this essay I outline the many respects in which human culture embodies a similar architecture and some of the implications thereof. The head quote above by the founder of modern social psychology and economics, Adam Smith, is intended to set the tone, with my argument being this: In thrall to the status rewards of social and economic importance the ‘arteries’ of human culture have come to dominate the capillaries in such a way that ultimately degrades the health of both – for they are organically interdependent – and the health of the larger organism of which they are a part.

Human culture at different scales

Political structures have an inevitable hierarchy to them if the object of politics is to solve the e pluribus unum problem – to fashion a singular policy for the community to pursue despite the diversity within it. 3 Something similar can be said of all organisations. An organisation is unitary – capable of pursuing some singular goal. In this sense it is governed as a state is.

But there are also hierarchies in our organisation of knowledge. First, there is the distinction between theory and practice. In science and social science, there’s theory and there’s empirical work. 4 In the professions like engineering, law or medicine, you learn a systematic body of knowledge at uni and ‘apply’ it in the workplace. In government we have policy and delivery and in organisations there’s policy-cum-strategy and there’s execution or delivery.

In the case of governments, whether they’re of nations or of organisations, the unitary nature of these entities’ ‘will’ is embodied at the top of the hierarchy (or, to change the metaphor, the organisation’s ‘centre’). The policy, the strategy is unitary – singular. However it may be executed in multiple sites, possibly in different ways. This hierarchy is similar within professional and scientific knowledge between theory and practice. Theory may not be unitary, but it ‘scales’ against practice – it is general whereas practice is particular.

This is also true of the status the activity enjoys. Just as those at the centre of organisations win the status rewards, so ‘theory’ is closer to the centre or the ‘commanding heights’ of a discipline than practical or empirical work. Nobel Prizes tend to be awarded for ‘theoretical’ advances, or for knowledge with ‘scales’. 5

Scale, power and prestige within the bureaucracy

If you’re a public servant, go into policy because delivery is both lowly and hazardous.6 Though delivery can be a worthwhile aspect of a developing professional CV, the road to the top is generally via policy. So that’s where the most able and ambitious people go. Gary Sturgess has written eloquently about the deprecation of the ‘view from the street’, and the problem is pervasive.7

I’ve cited regulation review as a classic case. Doing regulation well requires attention to how things are working right down to the micro-detail. But the micro-detail is invisible to those in the gods.8 It’s  even relatively low status within economic agencies though it may trump actual experience out in the field in programs.9. And so, for thirty years we’ve had lame top down regulation review policies that don’t work. The first decade of ‘minimum effective regulation’ announced by the Hawke Government in 1986 involved announcements every few years of the need for government agencies to do regulatory impact analysis. From memory, after the best part of a decade there was widespread total non-compliance and about 14% of those analyses that were done were assessed as adequate. Since then formal compliance has risen, but the quality of regulation has not and there’s little evidence that regulatory impact analysis achieves anything and quite a lot of evidence of its dysfunction.

In 2016 the NSW Audit Office produced a devastating report. Keep in mind that its comments were about reducing red tape which is the one part of the reg review agenda that’s relatively straightforward and sensible – that is built on reasonable rough estimations of compliance costs and relatively simple strategies to reduce them. Here are some highlights:

Overall legislative regulatory burden increased, despite the numeric test being met

Over the life of the ‘one-on, two-off’ initiative, the Department of Premier and Cabinet (DPC) reported that overall net legislative regulatory burden increased by $16.1 million. Changes to the Public Health Regulation 2012 ($14 million), Fair Trading Regulation 2012 ($5.3 million) and the Tattoo Parlours Act 2012 ($0.5 million) drove this increase and the added regulatory burden from these changes was not significantly offset by reduced burden in other areas.

The numeric test was met with 237 instruments repealed and 54 introduced – an overall ratio of roughly four repeals for every new instrument. However, most of these repeals related to redundant legislation with little or no regulatory burden.

Legislative complexity increased

The ‘one-on, two-off’ initiative did not reduce legislative complexity, as the stock of legislative regulation increased. The number of pages of legislation – a proxy indicator for statute complexity – increased over the life of the policy by 1.4 per cent per year on average. By comparison, over the preceding ten years, the number of pages of legislation had decreased by 1.1 per cent per year on average.

The arteries are willing (at least to put on a show), the capillaries are weak.

The micro-detail as a thicket

Thus too often the top and the bottom of these systems – or the centre and the edge – are ships passing in the night. Directing, coordinating, encouraging those in the field might be the job of those in head office but that doesn’t mean they can do it. Thus for instance every few years for the last twenty, Governments have adopted policies to the effect that the research they fund must be open access rather than locked up behind the paywalls of learned journals. They occasionally announces that data from such research must be published. But there are any number of “i”s to be dotted and “t”s to be crossed. Similarly, in open data and in IT – grand statements are issued while the little things remain incorrigible – a largely impenetrable thicket.

It’s been highlighted in government reports for a decade or more that there are numerous roadblocks to allowing wider data sharing – including in legislation. Has there been a coherent, comprehensive and concerted effort following the announcement of open data policies to do this work and clean up the undergrowth? Not that I’m aware. If there was it didn’t get far. And so progress limps along – until the same recommendations are made anew from the top.

As PC Chair, Peter Harris recently highlighted:

In our report, you can read how hospitals are required to sign up to intellectual property restrictions that prevent data transfer between wards. Or how cancer researchers use foreign data sets because our local ones are more restricted. Or how a nationally-funded research project into vaccination is nearly 7 years into a saga to be allowed access to Commonwealth and States’ data sets.  It expects to be finally allowed full access in another year or so. These are pretty disgraceful events. They are the tip of the iceberg.

This is eight years on from the government’s accepting recommendations from reports such as the Cutler Review (2008) and the Government 2.0 Taskforce (2009) and then endless subsequent internal and public reports recommending that governments free up their own data for use.

Announceables, unnanouncibles and the hand to mouth State

What we see here can be likened to a well known syndrome in low income countries. Aid donors – not to mention host governments – like announceables and cutting ribbons. If you want an announceable and a ribbon to cut fund a locomotive, or the railcars. Or even the track. But standard maintenance doesn’t an announcement make. And so the developing world is littered with formerly shiny assets that barely work for lack of proper upkeep.10

Modern governmental institutions like the Auditor General protect against such maladies. But the rising appetite for announceables should surely be a matter of increasing concern. I can even suggest a date of birth for the new sensibility. The Keating Government released the first major government economic statement I’m aware of with a propaganda name “One Nation” rather than a descriptive, bureaucratic title as had been done just months previously in the Hawke Government’s “Prime Minister’s Economic Statement” of 18th October 1990″.11 Since then, as I’ve documented several times, the compulsion to theme things – platforms, policy statements, elections, conferences – have continually grown in significance. Here, the themes are the arteries – the slogans and keywords by which the whole is marketed – with the detail being subordinate to the theme in just the way one would choose a theme for a ball.

I documented the brain eating qualities of this here where the OECD released an extraordinary report on ‘fragmentation’ – including reciting concerns about “different legal regimes across countries” all because fragmentation was “the theme of this year’s Business and Finance Outlook”. And it’s deranging entire systems of public good delivery. I recall, on Anna Bligh’s accession to power, being told that she wasn’t prosecuting the ‘Smart State’ slogan any more because that was Peter Beattie’s ‘brand’. It wasn’t just a rebranding either – but came with some serious changes (who knows, perhaps this was to respond to the potential charge that it was ‘just rebranding’!) In any event, this strikes me as basically disastrous at least in its implications. Something like a ‘Smart State’ strategy takes a long time to build. This was what governments used to do – in most areas – as one government would build on the legacies of its predecessor including governments of different political persuasions. Yet in the case of Anna Bligh, this was a peaceful handover of power within the same party and still it involved the ‘brand’ of the leader reaching down and discombobulating work on the ground.

These examples may well be the tip of the iceberg. The British Institute for Government recently documented three areas of policy where the phenomenon of edicts from on high was especially accute:

In the [further education] sector, since the 1980s there have been 28 major pieces of legislation, 48 secretaries of state with relevant responsibilities, and no organisation has survived longer than a decade. In the industrial strategy space,12 there have been at least two industrial strategies in the last decade alone – and we are now moving onto a third.

Here the bad news illustrated … well, graphically!

Virtually all this is driven from the top – that top consisting of politicians and their courtiers seeking to differentiate and promote their ‘brand’, senior bureaucrats showing their ‘can do’ credentials by crafting and rolling out Grand Plans while the media breathlessly report these announceables before repairing to panel shows on which they display their punditry by discussing how these announcements will go over with the public. How things are travelling out in the field isn’t news unless there’s the taste of scandal in the air.

Scale, power and prestige and skill development in the field

If what matters is the gradual building of capability and performance in the field and increasingly that seems to be the case – for instance in education, health, in regional and social policy including policies to address aboriginal disadvantage – these are pretty ominous developments. If you’re being restructured every few years, if you can’t rely on your boss because they’ll be moved soon enough, or if they’re not their job or influence could change at any time, then what incentives do you have to build your capabilities and perform rather than join the careerist game playing?

A concluding story from the Australian Centre for Social Innovation from its consulting work with one State Government. The Government and/or its bureaucracy had, some years previously, sought to increase reunifications between children and families they’d previously been removed from to protect the children’s’ welfare. Doing this is a high skill activity. And those skills can’t be learned without careful, deliberate attempts to do so in the field. How did the initiative work out? Well there’s the good news and the bad. For most parts of the agency the policy it simply wrought further damage on already very damaged lives. Around 70 percent of the reunifications failed. But one unit turned this around to an 85 percent success rate – saving the state many millions of dollars in future liabilities and alleviating much suffering. But that good news went unnoticed by those at the top who subsequently disbanded the high performing unit – which presumably contained the seeds of a potentially successful state-wide reunification program – to meet new priorities.

To be continued …

 

  1. See Chapter 6 “Why hierarchy reigns”.
  2. The pattern also replicates itself in transport. We move up and down the hierarchy, driving a car to the airport (one level), walking to the terminal (another) and boarding the plane (another) after which we navigate within the hierarchy to attend a meeting and then get home.
  3. This is obviously true in a monarchy or tyranny, but even the most decentralised possible functioning government – a pure participatory democracy must nevertheless produce unitary government policy and in that sense is hierarchical. Some readers may consider this claim unproven, but if that’s you, I’m happy to restrict my observations to existing and practical constitutions of which we are aware all of which produce hierarchy in one form or another even if there are rich patterns of feedback between the various levels in the hierarchy.
  4. I think it’s fair to say that of all the sciences, social or otherwise, the distinction between theory and empirics is strongest in economics where ‘theory’ is a body of formalised knowledge which is then ‘applied’ in empirical work. Still the distinction is fairly strong in maths and quite a few natural sciences.
  5. In the professions the best practitioners typically earn more than the best theoreticians. But – though the great vortex of the market may be corroding these values – the greatest respect is still shown to the pioneers of scalable knowledge. Australians of the Year in the medical profession will mostly continue to be those who pioneered medical knowledge or knowhow – including philanthropic delivery a la Fred Hollows – rather than those who made the most money.
  6. If you’re managing delivery, say a Centrelink office and you can’t meet your KPIs that might not work out so well. If you’re in policy and suggest let’s say VET FEE Help, the Auditor General is likely to leave you unmolested on your ascent through the ranks.
  7.  I’ve previously quoted Mike Bracken writing in defence of the slogan “The strategy is delivery” about his period in the UK’s Government Digital Service:

    One of the many lessons in my 18 months in Government has been to watch the endless policy cycles and revisions accrue – revision upon revision of carefully controlled Word documents, replete with disastrous styling. Subs to Ministers, private office communications, correspondence across departments and occasional harvesting of consultation feedback all go into this mix.

    Rarely, if ever, does user need (ie those capillaries) get a look-in. User need, if referenced at all, is self-reinforcing, in that the internal user needs dominate those of users of public services. I’ve lost count of the times when, in attempting to explain a poorly performing transaction or service, an explanation comes back along the lines of ‘Well, the department needs are different…’ How the needs of a department or an agency can so often trump the needs of the users of public services is beyond me.

  8. As I wrote in another post, the BCA wanted to rev up the troops on regulation. “So it got Access Economics to do a report on the state of play. How did it do it? It took the reg review manual about the need for robust regulation of the way regulators make regulation and then assessed each of the States’ regulatory performance against the set of quick and dirty criteria it had run up. Of course it didn’t actually attend to the quality of specific regulation – because the vast bulk of it made that practically impossible”.
  9. Doing stuff by funding or defunding it in budgetary policy has much higher status
  10. Dornan, Matthew (2012), ‘Aid and the Maintenance of Infrastructure in the Pacific‘, DevPolicy Blog, ANU Development Policy Centre.
  11. I quote the details from memory so some details may be wrong, but the essence of the claim is not.
  12. who knew industrial strategy was a ‘the industrial strategy space’, and more to the point that, by implication, ‘further education’ wasn’t ‘the further education space’?
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31 Responses to The living and the dead – the arteries and the capillaries: Part One

  1. John Walker says:

    Nicholas
    Nice work.
    Do Zane and Bejan mention D’Arcy Thompson’s Classic : On Growth and Form ?

    I ask the question because the ‘standard ‘ reservation about Thompson’s (pioneering and brilliant) work on the mathematics behind the various structures-forms that living organisms take , comes down to his indifference to natural selection and evolution as the main forces shaping the structures that life takes.

  2. Nicholas Gruen says:

    No idea but if they do it will probably turn up in this article. There’s no mention of “thompson” but lots of “Darcy”, though probably not the one you’re referring to.

    • Will have a look later.
      As it happens I came across their stuff a week ago and thought, hm .. you seem to be innocently repeating a debate or theme that dates back to around 1800 .
      Universal’ mathematical laws’ claiming to explain the development of complex self replicating structures are not new….

    • John Walker says:

      Nicholas
      Darcys law is something to do with fluid dynamics.
      “Doesn’t quite rise…” might be , kind.
      They seem to think that it all started around 1980.

      Think that the problems you are interested in are more analogous to why is the QWERTY keyboard still the standard keyboard? etc

  3. Really thought provoking article Nick.

    The comparison to health professionals is a good example. I wouldn’t really be that interested in glossy powerpoint presentation regarding how a doctor was planning on fixing my sore knee. The actual results would of course be much more important!

    A theme of your article was in regards to hierachy.

    I wonder if a related theme might be the tense of much of the language used in public disscussion.

    To me, there seems an inordinate amount of focus on plans and schemes that are by definition future-orientated. These plans and schemes seem to be continual such that very little seems to actually happen.

    It would be interesting to compare public versus private reports to examine the relative frequencies of words such as “did” compared to “will”.

    • Nicholas Gruen says:

      Thanks very much Mark,

      I expect you’re right – that we’re getting more and more addicted to drinking the Kool Aid of the future – all part of our political culture of sincerity. Politicians assert the sincerity of their intentions, for it makes no sense to be sincere about a fact.

      These are very deep issues.

      Some deep things have been going on in our culture over the last few decades. I guess these were some of the things on the minds of post-structuralists/postmodernists. Alas they were too abstract and too foreign in their modes of thinking (and too many of their epigones were spouting bullshit) for me to feel that trying to learn their language would be worth the effort.

  4. Nicholas Gruen says:

    On realising that n-gram can be used to date quotes, it looks like the Smith quote at the head of the piece comes from the last edition of TMS in 1790.

  5. When is part two Nick…?

    I am getting impatient.

    Will it discuss organisms that have almost all arteries and no capillaries…

  6. Nicholas Gruen says:

    Thanks Mark

    No – that’s this one – though the the ‘organisms’ are organisations

    The second half, when I write it will be about the extent to which so many of the social developments people are putting their faith in obey the same kinds of laws – of dominance of arteries. For instance the author of this piece tweeted it today. Lots of bold statements accompanied with natty examples, but little close connection between the two or close reasoning about what is and is not possible and why, where the experience we have would lead us to be optimistic and where wary and why, the way in which this links to existing thinking about politics and public administration etc etc.

  7. Nicholas Gruen says:

    The story of Google Books is a very good illustration of the way in which adversarial debate – as I call a variant of that – debate as culture war squeezes out the capillaries. Thus in Google v The Authors’ Guild the arteries of the dispute – Google’s right to scan books squeezed out the potential benefit of it scanning books. Reference here.

    • Nicholas you do know that the most visceral opponents of the Authors Guilds arrangements with Google were , Authors?

      • Nicholas Gruen says:

        I suspect it was their representatives. But numerically it may have been authors. After all CAL, which has never seen a copyright scam to collect copyright fees it didn’t like winds them all up at the drop of a hat.

        • The Authors Guild had around 5,000 (all of the following is from memory) members. Initially they sought to block Google from scanning in-copyright books, full stop.

          After sometime their action changed into a proposal that the Authors Guild ,in return for payment would ,on behalf of virtually all the worlds authors, licence Google’s book project to scan, index and , publish whole books online . ( apart from Authors published by some big publisher’s that had made separate in confidence arrangements with Google).

          In the end the court found against that arrangement.
          A year or so after that the courts found that scanning , indexing whole in copyright books and publishing small snippets of those books was a Fair Use.

          Another objector to the arrangement between Google and the Authors Guild was the US competition anti trust authority – can’t think of its name- That the arrangement would give Google’ unassailable market dominance’ was one of the issues raised .

          Australia doesn’t have Fair Use – as far as I know its not that clear whether scanning and indexing whole books, in itself is or is not a breach of copyright.

          BTW If we had a equivalent law to the USA’s Fair Use ,CAL would be a much thinner beast.

        • BTW At the time I followed the ins and outs of the case quite closely; that Atlantic piece is one of the best informed-researched pieces that I have read on the subject.

          However I disagree with the idea that the GBS failed primarily because of competing interest groups .

          It failed because the final ( second) settlement was :

          •Way too complex. Some important parts parts of the settlement document were literally impossible for even the sharpest legal minds to fully interpret.

          •It also had extremely ‘fuzzy boundaries’ – the settlement in reality affected a lot of groups that at first glance you would not think of as either authors or publishers.

          • it really did have a entrenching ‘monopoly’ feel to it

          And arguments that scanning and making available ‘Orphan works’ is such a pressing social need and benefit that: ‘we must overturn’ a complex, long established system of individual economic rights was never that convincing to me.

  8. Nicholas
    The Authors Guild case started as a ‘ cease and desist ‘ class action taken against Google by a quite small group of authors on behalf of the whole category : authors.

    However after it had run a few years the case became one about a proposed ‘settlement ‘ that restricted all authors rights ,as individuals, in return for a one off payment to a representative organization – there was a intention to set up some sort of a World Authors foundation .

    If that settlement had been approved it would have been binding on all authors in perpetuity – including those that are not yet born .

    Its a good example of how capillaries can be squeezed- all in the common good.

    • This is the judgement that rejected the “google books settlement”:

      Opinion Rejecting the Amended Settlement

      UNITED STATES DISTRICT COURT

      SOUTHERN DISTRICT OF NEW YORK

      THE AUTHORS GUILD et al,

      Plaintiffs,

      against

      GOOGLE INC.,

      Defendant

      OPINION

      05 Civ 8136 (DC)

      CHIN, Circuit Judge

      Before the Court is plaintiffs’ motion pursuant to Rule 23 of the Federal Rules of Civil Procedure for final approval of the proposed settlement of this class action on the terms set forth in the Amended Settlement Agreement (the “ASA”). The question presented is whether the ASA is fair, adequate, and reasonable. I conclude that it is not.

      While the digitization of books and the creation of a universal digital library would benefit many, the ASA would simply go too far. It would permit this class action — which was brought against defendant Google Inc. (“Google”) to challenge its scanning of books and display of “snippets” for on-line searching — to implement a forward-looking business arrangement that would grant Google significant rights to exploit entire books, without permission of the copyright owners. Indeed, the ASA would give Google a significant advantage over competitors, rewarding it for engaging in wholesale copying of copyrighted works without permission, while releasing claims well beyond those presented in the case.

      Accordingly, and for the reasons more fully discussed below, the motion for final approval of the ASA is denied. The accompanying motion for attorneys’ fees and costs is denied, without prejudice.

      The judgement in full.

    • Nicholas Gruen says:

      Are you saying you support the court’s decision?

  9. Nicholas
    My dad used to say ” never sign a contract that you cannot understand ” and ” do not do business with anybody who’s behavior disturbs you” both of those axioms applied re the GBS.

    • Nicholas Gruen says:

      Yes, but this was a big public policy decision in which there were two choices and one was to foreclose the possibility of a digital library of Alexandria.

      About the biggest example of status quo bias I can think of.

      • Biggest example of false dichotomy that I can think of.
        Frankly childish. Not worthy of you.

      • Since when is public policy determined by court cases between private entities ??

      • John Walker says:

        I really agree with the Open Book Alliance’s summing of why the GBS was a bad deal.

        “The deal far exceeds the bounds of a typical legal settlement. It would tread directly on Congress’ territory, privatizing important copyright and public policy decisions historically made by Congress. It abuses class action procedure to create an exclusive joint venture between Google, the American Association of Publishers (AAP) and the Authors’ Guild, strengthening Google’s dominance in search and creating a cartel for the sale of digitized books. It would bind nearly every copyright owner of every book published before 2009 throughout the world, and thus create, as the U.S. Register of Copyrights said, “a compulsory license for the benefit of one company.””

  10. Nicholas Gruen says:

    So the benefits of a modern library of Alexandria are forsaken? Sounds daft to me.

    Do we think the curators of the ancient library of Alexandria were good guys or something?

    Moreover I presume those objecting might, in the form of their objection, have influenced the decision to improve it from their POV.

  11. Nicholas
    If you knew ‘ why’ CAl was created you would be much more sceptical about what GBS was proposing in reality

  12. Nicholas Gruen says:

    It’s true I don’t understand the agreement in detail. So all my comments should be understood in that context. Perhaps if I took a month out of my life to understand it, and the options fully, I’d change my mind. Then again only professionals in the area – like Pamela Samuelson whom I met on an occasion and thought was on the side of the angels (of more openness) – can aspire to that without disrupting their lives. So I’m prepared to chance my arm, as we all do even when we think we know all there is to know. And as Pam did opposing the settlement not knowing what the alternative was – we know more about that now.

    I’m afraid I’m incensed by the pettifogging self-indulgence, self-righteous, small-mindedness, and greed for tiny morsels of financial gain of the copyright crowd.

    The story from my point of view is that Larry and Sergey spent $400 mil of Google’s money with, it seems, not a great deal of thought of Google’s financial gain, in pursuit of a dream. Now the dream was a silicon valley rich boy’s dream. But it’s the same dream as Thomas Jefferson’s – to liberate the world’s knowledge for the betterment of the species and the greater glory of the creation and the creator if there is one.

    I don’t even know precisely that vision in detail, but it seems to me that at that stage Google had no restrictive intent whatever. Their project was available to anyone else to copy – in whole or in part. Moreover, consistent with the ‘fair use’ legal doctrine they were relying on, they would have honoured anyone’s right to prevent it from distributing their copyright. They would have distributed orphan works, quite possibly for nothing. They may well have desisted from monetisation given their established practice of doing the same in many other areas.

    But the immense and multifarious structures of commercial society – and perhaps Larry and Sergey’s desire for further riches – would have pushed them towards further monetisation. And company law would have placed that duty on Larry and Sergey as fiduciaries of their shareholders. Then another arm of commercial society reached out. Copyright owners and authors (whose involvement at least in this country is virtually always assiduously managed by corporate copyright interests and their well funded comms teams). They stood to lose nothing from what I can make out, but they saw the opportunity to make some small bucks out of this from copyright royalties on things that had long disappeared from print. That this involved torching the possibility of a free and open database of all the books written in former centuries? Well you can’t make an omelette without breaking eggs. These are rights that would not have existed except for copyright owners successful campaigns over the decades to extend their copyright from 14 years at the beginning of the eighteenth century to lifetime plus decades more by the late twentieth century – a term that is unjustified by the justifications usually put forward for copyright – there is no ‘incentive to create’ from extending copyright well beyond the death of the author.

    Because the corporate copyright lobby went after all this the result was a much more difficult set of choices in which a class action in effect made law for the country or the whole idea went back into storage indefinitely. That was a very unfortunate development. As I said at the outset it’s true I don’t know all the detail of the agreement. Nor do I expect I’d like it all. Nor am I naïve about Google’s motives or conduct – at least after the copyright lobby came after it. But at least from what I know it would have been much better to proceed with than the alternative which is bleak.

    As for concern about usurping Congress’s right, one feature of the American system is that courts have had a larger role in such law making, not least in making fundamental law as they have in great constitutinal cases like Roe v Wade and Brown v Board of Education. Ancient Athenian courts too often sat in judgement on acts of the ‘legislature’ ie the Ekklesia.

    So while I have some sympathy for the argument that it was Congress’s job, we all knew Congress was and is unlikely to do its job and we can at least think of this as in the spirit of Montesquieu and the founding fathers who quite liked the idea of jurisdictions overlapping and competing with each other to some extent. The other point to make is that if it really is Congress’s job, it can legislate and remake the rules after the event. (And because the money amounts are not large if compensation were involved it probably wouldn’t be a large consideration – even for a cash strapped government.)

    I’d add in that context that I’m deeply uninterested in monetary measurements of the importance of this. I see it largely as a cultural, and indeed spiritual matter. (Of course if you’re paying attention, you’ll know I’m cheating. If the numbers were large I’d spin that my way too ;) So let me scale it back and say that the value of this measured by money has never been a big consideration for me.

    Meanwhile CAL and it’s Chairman Kim Williams are out in force in today’s press defending, in their usual mendacious way, their outrageous purloining of $15 million from Australia’s schools, libraries and universities not to pay authors or copyright holders as is its mission, but to run political campaigns to keep up the protection racket it has built for itself out of the thicket of nonsensical rights ‘fair dealing’ as opposed to ‘fair use’ provides it.

    • Nicholas Gruen says:

      I’ve posted this comment as a new post and suggest we continue any further discussion there.

  13. Pingback: Hoisted from comments: Copyright and the Google Settlement | Club Troppo

  14. Nicholas Gruen says:

    Note to self. This article on how some Asian countries have lifted the status of VET is worth reading on the themes in this article.

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