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 …

About Ken Parish

Ken Parish is a legal academic, with research areas in public law (constitutional and administrative law), civil procedure and teaching & learning theory and practice. He has been a legal academic for almost 20 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in the early 1990s.
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Factory
Factory
2022 years ago

Hmm, on the first point, having a DMCA-like set of laws will not prevent copyright infringement to any serious degree, the copyright circumvention devices will just flow though the same channels that the copyrighted works will flow through. Possibly the worst that could happen is that companies could misuse the law to stifle compeditors, for example, by preventing other companies from making printer cartriges for ones printer.

On the second point, I’m a bit more disturbed about the legislation by trade agreement, particularly since this issue goes into social as well as economic issues. Also, I wouldn’t be surprised if US changes it’s law that we would have to follow suit, but not visa-versa.

Jacques Chester
Jacques Chester
2022 years ago

There’s a wealth of documentation on the ill effects of the DMCA, Ken, from the free software community who loathe it so passionately.

It is absurd to the point that important projects are carried on outside of the US to avoid prosecution. One such project is Samba, which allows non-windows computers to be a first-class citizen of a Windows network. In the US the work could be in violation of the DMCA. Nobody wants to find out at the cost of their freedom.

It’s a dead hand on innovation, frankly. The US IP system is becoming more and more about carving anti-competitive fortresses out of the realm of ideas. This is not just about art, it is about material progress.

There’s a useful and necessary place for copyright laws. There’s a less convincing case to be made for the current farcical state of the US patent system. And there’s no case for the DMCA that can be made outside of references to the advantages accruing to a handful of firms.

By raising artificial legal barriers to competition, laws like the DMCA directly retard the working of the free market.

What annoys me most about this is that I have hitherto looked upon the woes of my American cousins as a matter perhaps for amusement and instructive example. At best it was a boon by raising the marginal attractiveness of Australia as a place to develop new technology.

Now the mess is coming home. This spurious “harmonisation” doctrine invented by idiot neokeynsians needs to be dragged out the back of the barn and axed. The way to free trade is free trade, not the expansion of cartellism.

Jethro
Jethro
2022 years ago

Yeah, what Jacques said. I hate the DMCA with a passion.

Dave Ricardo
Dave Ricardo
2022 years ago

“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.”

Ken, your argument is then that because you, personally, don’t find it convenient to read these works on-line, then it doesn’t matter if everybody else misses out.

Are you so egocentric about everything, or just important matters of public policy?

Ken Parish
Ken Parish
2022 years ago

Dave,

Are you always deliberately obtuse, or only when commenting on blog posts with which you disagree? The whole point of my post was to evaluate the weight of detriment flowing from acceding to US demands on copyright, so that it could be compared with the detriment had Vaile held out and the treaty been torpedoed. In that context it’s relevant to point out that the loss of free online access to some 20th century literary works almost certainly affects very few people in a practical sense (have you read any works on Gutenberg Australia, Dave?), and the vast majority of people can access those works free of charge in public libraries or at low cost via second hand bookstores. That may not apply to some people living in very remote areas, but one wonders how many of them have read works on Gutenberg in any event. Sure it will be a shame if Gutenberg Australia bites the dust, but it’s not a huge tragedy. The main Gutenberg site still contains thousands of works by authors who died more than 70 years ago, and the collection continues to grow rapidly.

Dave Ricardo
Dave Ricardo
2022 years ago

“the loss of free online access to some 20th century literary works almost certainly affects very few people in a practical sense”

How do you know this?

“(have you read any works on Gutenberg Australia, Dave?)”

No, but that is not important, because I don’t have an egoecentric view of the public interest

“the vast majority of people can access those works free of charge in public libraries or at low cost via second hand bookstores.”

Shall we do away with web-based newspapers as well, in that case? Better yet, I think your external students should not be able to download any documents. They should be mailed to them, just like in the old days.

“Sure it will be a shame if Gutenberg Australia bites the dust, but it’s not a huge tragedy.”

This conclusion is based on what … apart from your own experience?

Ken, your rants over the past couple of days have been downright embarassing. Are you feeling OK?

Dave Ricardo
Dave Ricardo
2022 years ago

“the loss of free online access to some 20th century literary works almost certainly affects very few people in a practical sense”

How do you know this?

“(have you read any works on Gutenberg Australia, Dave?)”

No, but that is not important, because I don’t have an egoecentric view of the public interest

“the vast majority of people can access those works free of charge in public libraries or at low cost via second hand bookstores.”

Shall we do away with web-based newspapers as well, in that case? Better yet, I think your external students should not be able to download any documents. They should be mailed to them, just like in the old days.

“Sure it will be a shame if Gutenberg Australia bites the dust, but it’s not a huge tragedy.”

This conclusion is based on what … apart from your own experience?

Ken, your rants over the past couple of days have been downright embarassing. Are you feeling OK?

Jim Birch
Jim Birch
2022 years ago

Seriously. Is the possibility of some corporation collecting rent on your works long after you’re dead going to inspire a massive creative effort? It may arguably marginally increase the sales price of your work but really how much? How many book publishers, for example, are factoring in the projected value in 100 years time when contracting emerging writers?

Rent seeking it is. It is not artists and creators who are pushing this but media corporations with massive “IP” portfolios.

The downsides of loss of personal freedom, the legalized society, economic social stratification, donocracy, and so on, seem to me way more important. And worth holding out on.

Dave (definitely not Ricardo)
Dave (definitely not Ricardo)
2022 years ago

If the Disney Corporation tries to rely on the Copyright to Mickey Mouse the most likely outcome is that it will not survive for the next 70 years. In order to survive it will need to find and promote new products, and copyright them for 70 years. And so the cycle continues. The reality is that corporations promote and distribute ‘creative pursuits’ for financial gain and the public benefits by getting access to a wider range of material. A necessary part of this process is copyright. Any artist not wanting to be part of such crass US driven commercialism is always welcome to donate their work to the public free of charge.

Unless you are going to argue that there should be no copyright at all what difference, practically, does 50 or 70 years make? If I saw a book that looked interesting I am not going to wait for the author to die and then another half a century to download it for free from the Internet. As Ken correctly point out I will either buy or borrow it. Clearly this rule will impact on the e-book business but it is unlikely to be catastrophic for them and even more unlikely to have any significant impact on the wider community. As the copyright period is dictated by the author’s lifespan any artist excessively concerned about the additional 20 years does have one option.

And one last point: If you copy something it is not “creative”

Graham
2022 years ago

When copyright law goes bad.

http://funferal.org/mt-archive/000514.html

It’s Europe, but similar things have happened in the US.

mark
2022 years ago

Easy, Dave! (Ricardo). You’ll go too far one day, and Ken may become mildly vexed (I cannot imagine him upset or angry) with you.

Ken, there is more to programs that “circumvent copyright” than the euphemystic “file sharers” like KazAa and Morpheus. What about algorithms that decode DVDs, so that open source DVD viewers can actually play them? Illegal under the DCMA, as is (as someone else has already pointed out) Samba, the ever-so-useful if bloody-hard-for-this-luddite-to-work-out collection of daemons that allows UNIX networks to play nice with Windows’ necromancy. It’s all very well and good to use proprietary formats and make it so that only I, UberMegaSoft Inc., can write and sell programs to access such formats. But what if I’m too lazy or incompetent to release versions of my decoding program for the Mac or UNIX? Should people risk gaol (or being sued, even) just because they’re trying to help those of my customers for whom I couldn’t care less?