03 August 2012


From the deliciously sprightly 'So Call Me a Copyright Radical' (Sydney Law School Research Paper No. 12/44) by Kimberlee Weatherall
 The panel in which this paper was given was presented as a ‘debate between those who think copyright needs radical reform and those who believe its traditional foundations are sound.’ To some extent, this framing is based on a false premise. It seems to suggest that copyright is somehow ‘timeless, natural and inevitable’, and based on consistent principle. This is a myth; copyright historically has been characterised by uncertainty and constant change. The present 1968 Copyright Act, a major re-write of the previous Copyright Act 1912, has been amended at least nineteen times. Going back further in time, prior to the 20th Century the form of the law was highly subject-specific, found across numerous pieces of legislation and, frankly, unrecognisable as the thing we now call copyright. 
 Weatherall comments that -
Proponents of copyright reform rarely call for wholesale repeal of the copyright law. Rather, they talk about finding ways to limit copyright’s imperialism and ensure protection of user interests. They explore ideas that I have covered briefly here: abrogating copyright owner control in favour of remuneration; opt-out approaches to unlock the potential for mass digitisation and mass access to copyright material; reformalising copyright; and flexible exceptions. If these ideas are radical, then by all means, record me on the side of the radicals. If believing we need to talk about these kinds of reforms and adopt some of them is the dark side, then hand me the black robe. 
However, if there is one thing that this brief review shows, it is that many ideas once considered ‘radical’ are making their way into mainstream discussions about copyright. At this very symposium, a group of legal experts convened by the Australian Copyright Council proposed extending exceptions including for non-commercial user-generated creativity. This would have been unthinkable even a few years ago. When formalities and registration were proposed by Professor Lawrence Lessig, the idea was radical; now it is discussed by WIPO. 
Perhaps my broader point, though, is that copyright is many things to many people. To talk of ‘traditional foundations’ is not only ahistorical, but fails to recognise that copyright is already a mix of systems: parts of it regulatory; parts of it market-based; parts of it based on concepts of natural rights; other parts strictly utilitarian; and many, many parts of it ‘bolted in’ in response to specific technologies. Any of the so-called radical reforms that we discuss (short of abolition, which I wouldn’t endorse) can find some antecedents; some common ground with what is already an accepted part of our copyright world. And there is nothing wrong with being open to rethinking the copyright system, or its constituent parts, as times and technology changes. It’s what we’ve always done. In fact, it’s practically traditional. 
The paper above was prepared prior to a public debate and prior to my access to the paper prepared by Michael Williams and Cameron Andrews. Having had the opportunity to hear and read their views, I would like to make a couple of additional comments. 
First, the argument that ‘postmodern academics’ are calling for radical reform of copyright represents a very superficial characterisation of the ongoing debate about copyright, perhaps focused on material and views expressed in the mid to late 1990s at when the world wide web was new. The academic debate has responded to concerns about the reach and anti-innovation impact of aspect of copyright law, and the very high transaction costs the existing copyright system imposes in an increasingly global cultural and economic environment. But it is notable that there has been a concerted effort worldwide to suggest realistic reform consistent with the goals of copyright including the aim of promoting the interests of authors and creators; I refer the reader to the outputs of the Copyright Principles Project, and of the Wittem Group in Europe, as two recent examples of such efforts. It may be worth noting, too, that academe is not the only source of today’s criticism of the copyright system. The increasing discussion in government policy circles; the adoption of an agenda on exceptions within the World Intellectual Property Organization, and the calls for reform in government reports and draft legislation cannot be so lightly dismissed. 
Second, criticism of both references to the ‘social contract’ reflected in copyright law and the out-of-hand dismissal that issues such as the extent of access members of the public have to legitimate copyright material strike me as misplaced. Copyright grants exclusive rights in material for several reasons: to ensure creators can obtain a return on their investment through the market, but also to promote distribution of and access to copyright material. Access and the resulting increase in knowledge and culture is what the public get in return for the grant of exclusive rights. To the extent that history matters here, this understanding is of course emphasised in the title of the Statute of Anne and in the US Constitution, as well as more recent treaties like the WIPO Copyright Treaty. The point is that policymakers are entitled to take into account whether copyright is serving these goals; where it does not, they are entitled to make changes to ensure all of these goals are better served. 
Third, references to copyright’s ‘democratic legitimacy, built on ongoing consensus’ ring rather hollow today, when much of Australia’s copyright law is influenced, if not dictated by international agreements negotiated by the executive and presented to the Australian public as a fait accompli, some of which, such as the US-Australia Free Trade Agreement or more recently the Anti-Counterfeiting Trade Agreement, have been negotiated under conditions of secrecy. Interestingly, the making of copyright policy out of the public eye is not entirely new: after all, the Spicer Committee, while receiving submissions from anyone, did not hold its hearings in public. There likely is a broad democratic consensus in favour of the idea of copyright generally (although I am not aware of any studies to that effect), but it stretches the concept of a democratic consensus to say that the details of the present law are the subject of broad approval. Indeed, it is noteworthy that when confronted with the detail of copyright law, Australian lawmakers have more than once expressed disbelief and recommended reform. 
Nevertheless, as noted at the Symposium, the mere fact that some of the reforms discussed in the paper of Williams and Andrews are also discussed in my pre-prepared paper does indicate, to me, that ideas once considered radical in copyright circles are indeed becoming more mainstream. This can only be for the good.