Derivative Citizenship

'When Women Were Aliens: The Neglected History of Derivative Marital Citizenship' (Sydney Law School Research Paper No. 12/47) by Helen Irving notes that

Between the mid-nineteenth and mid-twentieth centuries, in virtually every country in the world, women who married foreign men were stripped of their citizenship, and turned into aliens in their own country. Marital denaturalization laws were supported by the international community until well after the Second World War: single citizenship, family unity, diplomatic convenience, and inter-state comity, were treated as imperatives that overrode women’s independent personal status. Such laws, which expanded at the very time when women were gaining legal and political rights, impacted radically, sometimes tragically, on individual lives, including rendering many thousands of women stateless. This essay gives an account of the emergence and evolution of such laws, with particular reference to Britain and the United States. It provides a ‘snapshot’ of individual cases, and an overview of the international community’s response.

Irving comments that

these laws were not, as might be thought, a feature of the distant past, nor a consequence of the old doctrine of ‘coverture’, under which a woman’s legal identity – her right to hold property, enter into a contract, and assume legal obligations – was subsumed under her husband’s. The derivative character of women’s citizenship is much more recent. Indeed, the laws that forced a married woman to follow her husband’s nationality were passed by democratic parliaments, at a time when coverture had been almost completely abandoned. Decades after the first Married Women’s Property Acts (1839 in the U.S. (Mississippi); 1870 inthe U.K.), the laws governing a woman’s nationality might still have been described in words identical to those of Blackstone in 1769: "By marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband". Derivative nationality coincided temporally, furthermore, with the expansion of the political rights we readily associate with citizenship. By the date of Dowson’s letter, women in many parts of the world, including Britain, the Dominions, and the U.S. could vote and stand for public office. A significant number, indeed, were already Members of Parliament. Women were demonstrating their capacity – long impugned by anti-suffragists – to participate as active citizens and to enjoy their new status. But to do this, they had to be – and had to remain - citizens in the first place. 

The fall of the dice depended on love. Under nationality laws that were virtually universal between the mid-nineteenth and mid-twentieth centuries, a woman who married a foreigner became, in her own country, an alien. A woman whose husband - with or without her consent - was naturalised in a foreign country, automatically lost her own citizenship. In most countries, at the same time, a foreign woman who married a citizen was automatically naturalised in his nationality, and a husband’s naturalisation had the same effect. Forsaking all others, in citizenship as in love, the marriage vow was simultaneously an oath of denaturalisation. This, the British government liked to claim, was the practice of ‘most civilised countries.’ 

Stated as such, it sounds simple (if unjust, and certainly inegalitarian: no country made a man’s citizenship dependent on that of his wife). But beyond the question of justice, the operation of the law was, in reality, horrendously complex. The numbers, to start with, were far from insignificant (in 1922, for example, an estimated 30,000 of the alien women living in Britain were British-born, former subjects). The lives of numerous individual women were dramatically affected, sometimes tragically. Although the automatic naturalisation of foreign wives conferred benefits on many, its effect – like the automatic denaturalisation of women who married foreigners - was to subordinate, even infantilise, women as a class, long after they had begun to emerge as political adults. The women ... understood not only the practical, but also the existential injury of derivative citizenship: the psychological affront, even to those who suffered no personal disadvantage. ....

Few  historians  have  recorded  these  events,  and  lawyers' treatises on citizenship rarely  give  them  more  than  a  glance.  Histories  of  international  and  imperial  relations  are   almost  uniformly  silent.  There  are  some  valuable  studies  of  marital  denaturalisation  in   particular  countries,  especially  the  United  States,  but  most  treat  the  law  as  peculiar  to  the   country  in  question.  Few  have  seen  the  larger  dimensions.  ... 

  It  is  a  story  of  the  sacrifice  of  the  identity  (and  often  security)  of  vulnerable   individuals  against  the  interests  (sometime  imperatives)  of  inter-state  relations.  It  is  a  story,   not  necessarily  of  deliberate  hostility  (although  there  was  that),  but  mostly  of  disregard   compounded  by  stereotypes  -  one  that  speaks  acutely  to  our  time.  The  global  movement  of   persons  seeking  refuge  or  reward,  the  persistence  of  statelessness  (which  still  affects  more   women  in  the  world  than  men),  and  the  growing  demands  on  governments  to  accommodate   pluralism,  have  thrown  into  relief  the  importance  of  citizenship  and  the  existential   consequences  of  being  (or  not  being)  a  particular  type  of  citizen.  Ayelet  Shachar  has  called   this 'the birthright lottery' but  it  has  not  been  a  matter  of  birth  alone.  It  has  also  been,   profoundly,  a  matter  of  love  and  of  gender.  When  we  factor  in  the  latter,  we  open  a  window   on  a  human  story,  still  unfinished,  still  relevant,  and  deserving  to  be  known.    

Eugenics

'Buck V. Bell: A Constitutional Tragedy from a Lost World' by Victoria Nourse in 39 Pepperdine Law Review (2011) 101-117 comments that

 Some constitutional tragedies are well known: Plessy v. Ferguson and Korematsu v. United States are taught to every first-year law student. Buck v. Bell is not. Decided in 1927 by the Taft Court, the case is known for its shocking remedy -- sterilization -- and Justice Holmes's dramatic rhetoric: "Three generations of imbeciles are enough." A mere five paragraphs long, Buck v. Bell could represent the highest ratio of injustice per word ever signed on to by eight Supreme Court Justices, progressive and conservative alike. 

Buck v. Bell is not a tragedy as some others might define tragedy: it is not a well-known opinion, nor did it yield wide popular criticism; it sits as a quiet evil, a tragedy of indifference to the Constitution and its most basic principles. To include Buck as a tragic opinion is to recognize what Hannah Arendt once dubbed the "banality of evil." Even if grounded in eugenic assumptions widely held at the time, Buck v. Bell was an utterly lawless decision. Holmes treated Carrie Buck's constitutional claims with contempt. The opinion cites no constitutional text or principle emanating from the text. The only "law" in the opinion must be unearthed from a lost constitutional history embedded in a factual exegesis full of disdain for the Constitution and humanity itself. Few human tragedies can be greater "than the denial of an opportunity to strive or even to hope, by a limit imposed from without, but falsely identified as lying within." A lawless legitimation of such a principle -- one of natural aristocracy -- flies in the face of the very constitutional principles on which our nation was founded.

Enclosure

'The Cloud: Boundless Digital Potential or Enclosure 3.0?' by David Lametti argues that -

 The Cloud presents enormous potential for users to have access to facilities such as vast data storage and infinite computing capacity. Yet the Cloud, taken from the perspective of the average user, does have a dark side. I agree with a number of writers and the concerns that they raise about privacy and personal autonomy on the internet and the Cloud. However, I wish to voice concern over another change. From the perspective of users, the Cloud might also reduce the range of user possibilities for robust interaction with the internet/Cloud in a manner which then prevents users from participating in the internet as creators, collaborators, and sharers. The Cloud is “manageable” in a way the internet was not, and with users increasingly interacting with the internet with relatively less powerful devices than computers – smartphones, tablets and the like – this ability for Cloud service providers to control or manage users is enhanced. 

We owe the vocabulary of “enclosure” to Hungarian-Canadian political economist Karl Polanyi. In his seminal work, The Great Transformation, Polanyi described the enclosure movement in England in which communally integrated and collective farming practices on common lands were suppressed by authorities of the state, forcefully and sometimes brutally, in order to privatize land resources and create the conditions for a market economy in both agriculture as well as other sectors. More recently, the term “enclosure” has been used effectively by American intellectual property scholars such as James Boyle to describe the manner in which intellectual property rules and the concurrent practices of IP rights holders (for copyright, often large corporate interests) in the age of the internet were being used to restrict access to the public domain of ideas or the information commons. 

I argue that the Cloud, unless monitored and possibly directed, has the potential to go beyond undermining copyright and the public domain – Enclosure 2.0 – and to go beyond weakening privacy. This round, which I call “Enclosure 3.0”, has the potential to disempower internet users and conversely empower a very small group of gatekeepers. Put bluntly, it has the potential to relegate internet users to the status of digital sheep. 

By focusing on the entities that provide Cloud services, I argue that we might take steps to encourage or, if necessary, force private entities to keep the Cloud open and accessible in the long term. I also posit the desirability of a publicly-held Cloud to achieve this same end.

Let's not quibble about Polanyi (a vocabulary of 'enclosure' was in use a century before he arrived on the scene). Lametti in discussing a public cloud comments that -

So we must also be open to the possibility of the need to create a publicly-delivered Cloud to allow access to those who either cannot afford to use the privately-held public Cloud or who may not wish to participate under restrictive terms (or run the risk that they will become too restrictive). It would also give a voice to those who wish to maintain the various open software and public domain projects seen thus far on the internet. As such, a publicly-held Cloud does not have to be a massive investment in infrastructure. It is perhaps ironic, however, that the most important function of maintaining some sort of publicly-held Cloud, even if only a small one, is the positive impact that it will have on the privately-held Cloud. A Cloud that is open, inexpensive, flexible and secure is in effect a competitor in providing services on the Cloud and will hopefully encourage similar features throughout the Cloud. 

For the time being, in skeletal form, I would argue that the publicly-held Cloud needs to be created, bolstered and maintained by:

•  providing resources to public actors (like universities) for building the computing and storage infrastructure to create and maintain a minimal, publicly-delivered Cloud service; 

• encouraging open software, open access, open knowledge and digital sharing movements to continue; and to provide Cloud services where possible; 

• where necessary, encouraging or forcing universities and other agencies funded by the state to maintain a Cloud, providing the various kinds of Cloud services (SaaS, IaaS, PaaS) directly to not only their staff and students, but to the wider community; and 

• perhaps using public-private partnerships (PPPs).

Admittedly, this last scenario is a more challenging option, but might nevertheless be appropriate in those contexts where states do not have the capacities in their public institutions to provide internet and Cloud services. It may also be the case – as has been the case in the varied contexts and economic histories of many countries – that the quango (or quasi-autonomous state agency, Crown corporation, etc.) is the appropriate tool for the development of this critical resource. No good idea for a hybrid solution should be rejected a priori. Different countries might find different solutions depending on their policy contexts. 

Moreover, I would argue that governments need to ensure that the privately-held Cloud remains accessible by:

• mandating and implementing the highest standards of interoperability in Cloud technology, encouraging the use of open platforms and open access software, and barring attempts by individual providers to lock their systems; 

• protecting users from monopolistic business practices through competition and consumer law; 

• requiring privately-delivered Cloud service providers to make space available to community driven projects such as Ubuntu 1; 

• mandating and implementing the highest privacy standards perhaps via a user’s bill of rights; and 

• mandating the highest standard of basic user rights, again perhaps via a user’s bill of rights.

Further, as far as possible, it would be beneficial to make the privately-held Cloud conform to these last desiderata, either through positive legislation or incentives. As regards the architecture of the publicly-held Cloud, the availability of resources (human know-how, physical infrastructure and ongoing financial resources) is necessary. The key may very well be in “reminding” universities and public research centres of their public vocation, which in Europe, Canada and the US could work effectively, provided that the resources to maintain the public Cloud are indeed furnished. But the use of universities, for example, does not preclude other loci for the provision of cloud computing capacities. Collaborations among governments, say the EU and Canada, for example, might be encouraged to build facilities – built and perhaps operated jointly – in northern climates that are both cold enough to cool and are close to clean sources of electricity; resources currently necessitated by Cloud server technology. 

I am aware that governments have not always been the most virtuous players on the internet. They have blocked access to the internet, and its content, and even governments generally considered to be “responsible” and “democratic” have used it for surveillance purposes. Indeed, in some places it is clear that governments ought best be feared. Hence, there is also a serious, related concern with the possibility that governments may use the potential controllability of the Cloud as an efficient means to gather information about individual users for a variety of purposes. Acknowledging this fact, I would still maintain that a collaboration between accountable governments and government institutions, on their own or with the private sector, could set a high ethical standard for internet and Cloud participation. 

Thus, in the end, polycentric solutions – private, directly provided government services, and indirectly “government-encouraged” services by public, quasi-public and even private actors – will form a part of the mix in keeping the Cloud’s gates from being controlled by private Cerberus. Of course this means that governments will need to take a proactive role domestically, and cooperate at an international level. But hopefully even the most minimalist political ideology will (1) see the importance of this role for the development of its own citizenry and economy, and (2) find within the various governance options ones that it can implement according to its own philosophy.

Forgetting and filming

'The Emerging Conflict between Newsworthiness and the Right to Be Forgotten' by Jasmine McNealy in (2012) Northern Kentucky Law Review comments that

 In early 2010 it was reported that the some of the nations of the European Union were considering passing legislation aimed a protecting an individual's "right to be forgotten." The right to be forgotten is such that a person's past deeds, though chronicled and now available on the Internet, were considered private. Therefore, any person could demand that the possessor of this information erase it or face a lawsuit.

Although EU members hail the creation of this right to be forgotten as improving individual privacy rights, such a right creates a problem for American online news organizations. Not only does such law come into direct conflict with protections found in the First Amendment, but it also conflicts with traditional privacy jurisprudence, which states that information made public cannot become private again. At the same time, Americans seem to be attempting to assert a right to be forgotten. For instance, a man threatened to sue a college newspaper that had articles reporting on the misdeeds of his son in its online archives.

This paper analyzes the emerging conflict that recognizing a right to be forgotten online would have with American jurisprudence regarding the role of the press, both traditional and online, as a watchdog for the public as well as with traditional U.S. privacy policy. Section two attempts to examine the boundaries of the right to be forgotten from both theoretical and EU perspectives. Section three considers traditional U.S privacy law and some of the contours of that law including the protection for newsworthy information. Section four analyzes the right to be forgotten with respect to the protections for free expression detailed in Section three. This paper concludes with a consideration of how the right to be forgotten would not fit with traditional U.S. privacy jurisprudence.

US site Politico meanwhile features an item on the 'right' not to be surveilled.

Under the headline 'Lawmakers: Candidates almost being stalked' Alex Isenstad reports that

More than four dozen House members from both parties will tell party leaders Thursday that it’s time to put a halt to the increasingly invasive tactics of campaign trackers. “Over the last few election cycles, the use of trackers has increased. Sometimes it even borders on stalking,” a letter to be delivered to Democratic Congressional Campaign Committee Chairman Steve Israel (D-N.Y.) and National Republican Congressional Committee Chairman Pete Sessions (R-Texas) states. “We believe filing candidates, sometimes with hidden cameras, while they take care of routine family activities like grocery shopping and posting videos of their private residences is a step too far.” 

The unhappiness - which will remind Australian law students of Victoria Park Racing & Recreation Grounds Co Ltd v Taylor [1937] HCA 45; (1937) 58 CLR 479 - reflects revelation that

Democratic trackers have been filming the homes of Republican members and candidates and placing the raw footage on YouTube. Members called the tactic a gross invasion of privacy. And they said it created a safety risk for them and their families at a time when they are already on edge after a deranged gunman shot former Arizona Democratic Rep. Gabrielle Giffords in January 2011. In June, a 38-second clip of Ribble’s northeastern Wisconsin home appeared online. The soundless video, which appears to be taken from a car sitting just outside the house, pans across the large home and shows it from several angles. ... The freshman said his wife felt uncomfortable being alone in their house during the day. 

The DCCC has stood by its practice of filming homes and placing them on YouTube, arguing that it wants to cast House Republicans — especially those who are wealthy and have large homes — as out of touch with struggling American families. By placing the videos online, the DCCC is hoping that like-minded outside groups will use the footage in TV ads this fall. The NRCC has said it is against protocol for their trackers to record Democratic members or candidates in private spaces.

The very rich, as the crusty Paul Fussell once noted in his discussion of the taboo subject of class, may of course shelter behind thick hedges in residences that are a long way from a public street and thus not readily surveilled using even a telephoto lens. In my crueller moments I'm tempted to think that anxieties about the safety of homeowners - politicians or otherwise - might be a tad alleviated through restrictions on the sacred right to carry arms. The worried politicians could of course strengthen US national privacy law, including the development of restrictions regarding profiling by political organisations of voters.

In Australia the scope for action under stalking statutes varies but courts would presumably consider reasonable fear/apprehension in relation to notions of public interest and precedents regarding street photography. What about exposure of residences through 'real estate 2.0', such as online images of properties for sale, including properties that were for sale and as yet haven't been forgotten?

Identity Crises

A mordant dismissal of the notion of 'identity crisis', found in 'Beyond 'Identity'' by Rogers Brubaker and Frederick Cooper in 29 Theory and Society (2000) 1-47 -

putative crises of identity have proliferated to the point of destroying whatever meaning the concept may once have had. … A recent bibliographical sampling revealed that “identity crises” were predicated not only of the usual suspects - above all ethnic, racial, national, gender, and sexual identities - but also of such heterogeneous subjects as 10th-century Gaul, the forestry profession, histologists, the French medical corps during the First World War, the internet, the Sonowal Kacharis, technical education in India, early childhood special education, French hospital nurses, kindergarten teachers, TV, sociology, Japan's consumer groups, the European Space Agency, Japan's MITI, the National Association of Broadcasting, Cathay Pacific Airways, Presbyterians, the CIA, universities, Clorox, Chevrolet, lawyers, the San Francisco Redevelopment Agency, black theology, eighteenth-century Scottish literature, and, our favorite, dermopterous fossils.

SNS and marks

'Social Media Amplify Consumer Investment in Trademarks' by Deborah Gerhardt in 90 North Carolina Law Review (2012) 1492 comments that

 New ways to use brands in social media are pressuring traditional conceptions of trademark law. Contrary to much trademark doctrine, every brand is built by a community, not by its proprietor alone. I previously described this phenomenon as consumer investment in trademarks. Internet technology amplified the effects of the consumer investment model, enabling consumers to gain more power over the marks of others. This Article shows that social media have turned the volume of consumer voices up another notch and explores the consequences for trademark law. Sites like Facebook offer consumers a platform for the expression of personal identity through trademark preferences. Social media also give consumers unprecedented power to affect brand value by publishing positive and negative commentary. If corporate brand owners want to take advantage of social media, they must let go of much of their control by opening their brands to constant consumer feedback. This trend is changing traditional notions of what it means to acquire goodwill in a mark. Brand owners no longer work alone to craft the story of a trademark. Instead, modern brand narratives are written in collaboration with consumer communities. This new trend of trademark co-authorship through social media will require rethinking some entrenched concepts of trademark law. Ironically, one way for trademark owners to reassert control of their story is by linking their brand narrative to marks belonging to others. This phenomenon occurs every time one brand owner tells its audience to “like it” on Facebook or “follow it” on Twitter. In social media, many brand owners use the marks of others for commercial benefits without express authorization. The ubiquity of this trend requires rethinking when unauthorized uses should result in trademark liability. New social media norms will require tolerance of expressive, informational and even some commercial use of marks that happen without the owner’s permission. Consequently, social media are creating multiple challenges for everyone attempting to apply trademark doctrine to new practices in cyberspace.

Gerhardt concludes that -

Social media have shifted the trademark balance of power. Brands were once used to tell a set story to a passive audience. All that has changed. In social media, the brand owner no longer has exclusive control. The audience participates in shaping the brand narrative. Both consumers and businesses contribute to these stories by using the brands of others for an array of informational, expressive and commercial purposes. Critical consumer speech can force a mark owner to change product or service features or abandon a brand entirely. Social media have also empowered people to use the brands of others as props in their own narratives. On individual online profiles, the brands of our schools, employers and favorite products and services have become ubiquitous in defining our reputations. Social media also provide consumers with easily accessible opportunities to use brands for favorite products and services as ties in social networking. This increased use of brands is made possible by open Internet architecture, social media platforms and, most importantly, loosening the reins of brand owner control. 

Corporate America is also embracing this trend, adopting new advertising norms for social media. Many brand owners are encouraging consumers to use social media to participate in the brand narrative. In building a broader community around their brand, they are also relying on marks belonging to others such as brands for social media, charitable organizations or products that may be used as a contest prize. These new norms have required corporate brand owners to loosen their tight grip on brand control. This changed balance of power creates new risks. Consumers may steer a mark away from a planned marketing path or take it down altogether. 

Welcoming consumers to participate in developing the story of a brand has its benefits. Social media give brand owners an open window into the world of consumer perceptions and a platform to respond. Rather than serving as a prop in a story experienced by a silent audience, the brand becomes a tie in a social network where brand owners can connect with the public. In this way, brands that once offered the impression of a community can now create an authentic community with meaningful reciprocal communications. This new landscape may benefit the brand owner’s bottom line. Patrons who believe that brand owners are listening, reflecting and responding to consumer feedback may deepen their allegiance. 

Trademark doctrine was not based on a foundation that can easily accommodate these new norms. Rather, it was founded on the idea that the owner controls the story about the quality of goods or services associated with a brand. For trademark doctrine to evolve with advances in communication technology, the consumer investment model is a necessary doctrinal addition. It will give courts a mechanism to balance consumer informational interests, bringing public concerns back into trademark law. Keeping consumer interests as a balancing force in trademark doctrine has become of greater importance since new advertising norms have given consumer voices much more deference. 

To practically achieve this goal of bringing public interests back into trademark doctrine, courts and legislatures could begin with the following changes to trademark law. First, the outdated and simplistic Boston Hockey standard should be expressly overruled. Not every unauthorized use of a trademark that triggers a sale should be the basis of trademark liability. Second, a clear statutory safe harbor should be created for nominative fair use. Third, the malleable likelihood of confusion standard should not be available to silence consumer commentary. In Lifestyle Lift, the plaintiff posted fake reviews on the defendant’s website and then tried to use trademark litigation to silence genuine ones. Consumer interests will be much better protected if trademark law is available to sanction false and deceptive speech without shutting down stages for sharing genuine critical opinions. Calibrating the appropriate balance will not be easy. As illustrated in Tiffany, the Internet business that does not create deceptive content—but may inadvertently host it—should not be held responsible. In order for truthful consumer information to be available, a clear exclusion from liability should be applied when an Internet-based seller has made significant efforts to keep deceptive information contributed by others off its site. Liability should be available against the person who posted the content, but not against the Internet service hosting it, especially if it did what it could to take down content that it had reason to know was deceptive. Adopting these doctrinal bright lines would go far in keeping the Internet open for meaningful consumer discussion using the branded symbols that, thanks to social media, create so many ties in today’s social networks.

Radical?

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. 

Postscript 

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.