IP doomsday?

Kim Weatherall blogs further on the IP (intellectual property) aspects of the Aus/US FTA. Kim expresses concern that Australian negotiators appear to have agreed (though details are so far very vague) to a raft of concessions which, she argues, largely negate the detailed consultative process that has led to Australia’s copyright regime. The example she mostly discusses is that Australia seems to have agreed to adopt the US practice of making illegal the use (private or otherwise) of electronic copyright circumvention devices. Australia has (until now) opted to implement its obligations under the WIPO Copyright Treaty by merely making the sale or distribution of such devices illegal, not their actual use.

There were numerous arguments advanced in favour of that relatively light-handed legislative approach, not least that enforcement of a ban on use would be difficult if not impossible to enforce. However, I can’t get too excited about protecting the ‘rights’ of individual Australians to breach someone else’s copyright (on however small a scale)*. Moreover, the current round of record industry prosecutions of large-scale private abusers of peer-to-peer copying software like Morpheus and Kazaa, and the resulting heavy drop-off in their useage, shows that aggressive action against individual infringers can be an effective way of protecting property rights. I certainly wouldn’t be impressed by an argument that Australia should have sacrificed the broader benefits of a free trade agreement with the US (assuming they’re otherwise favourable) in order to resist American demands that we legislate to permit prosecution of private users of copyright circumvention devices.

Kim’s other major focus seems to be on Australian agreement under the FTA to fall in line with the US extension of copyright protection for literary, artistic and musical works etc to 70 years. This concession is rather more of a concern. However, unlike Kim, I don’t think this concession is worth dying in a ditch over either.

Australian copyright law currently puts works in the public domain 50 years after the author’s death, whereas US law now specifies 70 years. The US extension was impemented after heavy pressure from US media corporations, most notably the Walt Disney Corporation. Old Walt died in 1966, so his most valuable creations (like Mickey Mouse and Donald Duck) would have been entering the public domain in the relatively near future had it not been for the changes to US copyright law that Australia has now also agreed to enact.

There is certainly an immediate downside from my personal viewpoint, in that free online access to a wide range of 20th century literature will now be removed. Project Gutenberg Australia presently provides access to most of the works of authors including Edgar Rice Burroughs, GK Chesterton, Sir Arthur Conan Doyle, F Scott Fitzgerald, DH Lawrence, TE Lawrence, Lennie Lower, George Orwell, Henry Handel Richardson and Virginia Woolf. They wouldn’t be available under a 70 year rule. Nevertheless, it’s more of a theoretical than practical detriment. I’ve never actually read an online version of a work by any of these authors and, in the absence of a cheap, easy-to-use portable tablet reader device, it’s unlikely I ever will. It’s easier to borrow the book from a public library or buy it from a second-hand bookshop.

The main objections to copyright extension combine more general issues of principle and “slippery slope” pragmatism. Copyright law by definition represents a balance between the public interest in facilitating a fair commercial return for creators of works by giving them a reasonable period of incomplete monopoly control (because otherwise many/most creators wouldn’t bother to create in the first place), and the equal public interest in preserving a free marketplace of ideas. The whole of human culture is based on incremental advance and free flow of ideas: in a real sense all artistic and scientific creation is derivative, building on the work of those who’ve gone before.

Granting excessive monopoly rights (either in time or extent) to the original creator of a work stifles the creativity of others and potentially impedes the development of human culture as a whole. Thus copyright protection has always been strictly limited in time, and qualified in various other ways to protect broader values of freedom of expression. However, when evaluating predictions of doom flowing from copyright extension to 70 years, it’s as well to keep in mind all those other qualifications/restrictions on copyright, because they will remain unaffected by copyright term extension. For example, copyright is only infringed if a “substantial part” of a work is copied. In most circumstances that leaves future creators free to use motifs from works for modes of expression like collage (in visual arts) or audio sampling (as in techno music).

Another important limitation on copyright that many people don’t understand is that it only protects the particular expression of an idea, not the idea itself. Protection of ideas themselves, provided they’re sufficiently inventive and unique, is the realm of patent. Thus, Mickey Mouse as a particular expression of an idea is copyright, but the general idea/concept of a cartoon mouse isn’t.

Copyright defences allowing use of extracts from works for research, study and teaching and for literary and journalistic criticism are other important elements that ensure rights holders don’t have broad legislated monopoly control of the works they’ve created. None of these features are affected by the extension of copyright term to 70 years.

Certainly the 70 year extension itself represents a measurable shift in favour of rights holders and away from free public access, but whether it’s drastic enough of itself to justify opposing a free trade agreement otherwise in Australia’s interest is at best questionable, especially when most other western countries have already acceded to US demands and brought their own copyright laws in line with the 70 year term.

I would certainly be on Kim Weatherall and Larry Lessig’s side of the argument if I thought the “slippery slope” argument had much force. Some people have argued that, if mega-corporations can successfully lobby legislators to extend copyright to 70 years, there’s no reason why they shouldn’t be able to keep doing so ad nauseum, effectively achieving copyright in perpetuity.

Frankly I doubt that such a scenario is very likely. Even a 70 year copyright term is likely in the near future to significantly exceed the period when a particular expression of any given idea has much commercial value. Fashion, taste and technology are simply changing at an increasingly rapid rate. Mickey and Donald clearly still have significant commercial value for Disney now, but for how much longer will that be true? Computer-generated animation of the sort pioneered and brought to commercial maturity by Pixar and others is increasingly taking over from old-fashioned two-dimensional pen-and-ink cartoons. The speed and ease of creation of such characters (as well as interactivity facilitated by increasing penetration of broadband internet connections) is likely to lead in the near future to a situation where no single cartoon character will ever again enjoy the longevity of Mickey and Donald as cultural icons. Already an entire generation raised on interactive computer games, PS2’s and X-Boxes views traditional cartoons as quaint, old-fashioned and almost laughable.

In the computer software industry, no-one is remotely interested in 70 year copyright protection, because any given piece of software is lucky if it’s not utterly obsolete in 7 years let alone 70. I suspect that the current obsession with 70 year copyright term extension will in future be seen as an irrelevant overreaching by an entertainment industry unable to grasp the full implications of technological change. But then again, I might be wrong …