Sackville, Justice Ronald --- "Monopoly versus freedom of ideas: the expansion of intellectual property" (FCA) [2004] FedJSchol 17

MONOPOLY VERSUS FREEDOM
OF IDEAS:

THE EXPANSION OF INTELLECTUAL
PROPERTY

by

JUSTICE RONALD SACKVILLE*

23 SEPTEMBER 2004

*Judge, Federal Court of Australia
This is a revised version of a paper delivered to the Australian Centre of Intellectual Property in Agriculture, Australian National University, on 23 September 2004.

EXCLUSIVITY vs FREEDOM

Intellectual property law is not the staple fare of the popular media. Yet for a brief time the conclusion of the Australia-United States Free Trade Agreement[1] (‘FTA’) thrust patent and copyright law to the forefront of public debate in Australia. Intellectual property lawyers (or at least some of them) enjoyed a fleeting moment of public exposure, if not fame. The word ‘evergreening’ temporarily entered the Australian vernacular as commentators discussed the extent to which drug patent holders use dubious claims to extend their monopoly at the expense of generic drug manufacturers and, ultimately, the public.[2] Some critics saw the FTA as the ultimate triumph for United States politicians and lobbyists who had succeeded, for example, in requiring Australia to extend retrospectively the term of copyright protection for works by a further twenty years.[3]

The debate about the intellectual property provisions of the FTA[4] is a modern manifestation of the fundamental policy question posed by intellectual property regimes. Such regimes necessarily reflect an accommodation between competing imperatives – the need to encourage creative endeavour and productive activity by means of granting monopoly rights, balanced against the freedom to borrow and build on ideas and the creative work of the past. A period of exclusivity in the exploitation of an invention, a literary work or a film enables the inventor, the author or the film producer to recover their costs and to obtain profit, thereby encouraging future creative activity. The requirements of disclosure or publication ensure that the innovation is in the public domain.

It is important to remember, however, that the grant of monopoly rights carries with it significant costs. These include higher prices for books, films, drugs and other goods and services, a transfer of wealth from local producers and consumers to foreign holders of intellectual property rights (an important consideration for Australia) and the transaction costs of maintaining the intellectual property regime and of securing permission to reproduce protected material or ideas.

In a famous speech in 1841, Lord Macaulay observed that copyright imposes a ‘tax on readers for the purpose of giving a bounty to writers’.[5] For that reason, Macaulay was adamant that copyright protection ‘ought not to last a day longer than is necessary for the purpose of securing the good [of encouraging authors]’. But it is not merely the economic costs that must be considered. The protection afforded to the holders of copyright or patents, for example, imposes restrictions on the free use of knowledge and information. As Paul Goldstein points out, copyright

‘touches directly on conflicting cultural, economic and political values – the desire for art and literature; a commitment to free markets; traditions of free speech’.[6]

The competing claims of the holders of intellectual property rights and those who challenge their monopoly have been the subject of much debate. In 1970, a future Justice of the Supreme Court of the United States, Stephen Breyer, argued that the supposed non-economic benefits of copyright did not justify the grant of monopoly rights and that the economic benefits had generally been overstated.[7] In particular, Professor Breyer argued that the abolition of copyright, at least in relation to textbooks and scholarly works (as distinct from ‘tradebooks’) would be unlikely to have significant adverse effects on the publishing industry.[8]

More recently, critics of intellectual property regimes have pointed to the dangers inherent in the ever-increasing demands for the expansion of intellectual property rights. Peter Drahos and John Braithwaite draw a parallel between medieval feudalism and what they describe as ‘information feudalism’.[9] Under the earlier variety of feudalism, the lords exercised not only private power by virtue of their ownership of land, but public power through a system of manorial taxes, courts and prisons. The key to information feudalism is the ‘transfer of knowledge assets from the intellectual commons into private hands’.[10] These hands

‘belong to media conglomerates and integrated life sciences corporations rather than individual scientists and authors. The effect of this, we argue, is to raise levels of private monopolistic power to dangerous global heights, at a time when states, which have been weakened by the forces of globalization, have less capacity to protect their citizens from consequences of the exercise of this power.’

Similarly, William Cornish entitled his 2002 Clarendon Law Lectures Intellectual Property: Omnipresent, Distracting, Irrelevant?, in order to highlight the major dilemmas which enmesh intellectual property: omnipresent – to capture the cases where intellectual property rights appear to be ‘spreading like a rash’; distracting – to describe rights which achieve few of their intended purposes but cause persistent itching; irrelevant – to refer to technology which in practice seems to render intellectual property nugatory.[11]

There is now a substantial literature which argues against stronger intellectual property rights and in favour of an ‘intellectual commons’. Lawrence Lessig points out[12] that although ‘the tragedy of the commons’[13] might apply to rivalrous resources, such as parks or communal fields,[14] it does not necessarily apply to non-rivalrous resources, like Einstein’s theory of relativity or software programs, which are not depleted by use. Lessig sees the commons as ‘a resource for decentralized innovation’, since it allows ‘individuals to draw upon resources without connections, permission, or access granted by others’.[15] In particular, he sees the Internet as an ‘innovation commons’, whereby creative people can develop and deploy new applications or content without anyone’s permission.[16]

Adopting a similar approach, James Boyle suggests that we are in the middle of a ‘second enclosure movement’.[17] This is reflected in the recognition of patent rights in human genes and many other examples of intellectual property rights.[18] He argues that the commons are not truly tragic and that stringent intellectual property rights are not necessarily the best means of encouraging innovation and creativity. On the contrary, non-discriminatory access to the intellectual commons will permit more innovation than ‘monopolistic control over choke-points.’[19]

The issues are, of course, not new. In the sixteenth and seventeenth centuries, there was a commonality of interest between successive governments under the Tudors and Stuarts anxious to suppress dissent and a guild, the Stationers’ Company, anxious to retain control of the book trade. Their common objectives were met by the Licensing Act of 1662 and its predecessors harking back to decrees of the Star Chamber, which prohibited the importation of banned books and the unlawful printing of books. The Stationers’ Company was effectively the delegate of the Crown and, not surprisingly, acted to preserve the monopoly of its members. The Stationers reaped the economic rewards of monopoly and in return the Crown enjoyed efficient enforcement of censorship.[20]

When the Licensing Act expired in 1694 in the face of opposition from the ascendant Whigs, the booksellers and printers had to look for other mechanisms to protect their interests, although they could take some comfort from enforcement of the laws against blasphemy, obscenity and seditious libel against newcomers. They relied on the common law entitlement to perpetual copyright. This was said to have survived the Copyright Act of 1709, which conferred the sole liberty of printing and reprinting books for a term of 14 years, subject to an extension to 28 years if the author was still living.

Competing arguments were advanced as to whether perpetual copyright existed under the common law and whether, if so, it survived. The arguments in favour were articulated by the majority in Millar v Taylor,[21] which upheld the claim of an assignee of the copyright in an epic poem against a rival bookseller who had published an authorised addition after the expiration of the statutory copyright. Willes J reasoned as follows:[22]

‘It is wise in any state, to encourage letters, and the painful researches of learned men. The easiest and most equal way of doing it, is, by securing to them the property of their own works. Nobody contributes, who is not willing; and though a good book may be run down, and a bad one cried up, for a time; yet sooner or later, the reward will be in proportion to the merit of the work.

...

He who engages in a laborious work (such, for instance, as Johnson’s Dictionary,) which may employ his whole life, will do it with more spirit, if, besides his own glory, he thinks it may be a provision for his family.’

It is interesting to note that the majority in Miller v Taylor included Lord Mansfield, who had acted at the bar for the leading publishers. Lord Mansfield and the other members of the Court of Kings Bench may well have known that Dr Johnson’s Dictionary had been commissioned by five booksellers, had taken nine years to complete and required a capital outlay of between £4,000 and £5,000.[23]

The competing argument was later upheld by a closely divided House of Lords in Donaldson v Becket,[24] which overruled Millar v Taylor. The majority in the later case, which included Lord Camden, the Chief Justice of Common Pleas and a great rival of Lord Mansfield, held that perpetual copyright created an unjustified monopoly and conflicted with the public interest in the free circulation of knowledge and information. The claim to perpetual copyright had also reawakened the hostility generated by the special privileges of the Crown, most of which had been abolished after the Glorious Revolution.

FORCES FOR THE EXPANSION OF INTELLECTUAL PROPERTY RIGHTS

A number of forces combine to generate pressure on legislatures to recognise or create new or expanded intellectual property rights. Perhaps the most pervasive is the power of the interest groups whose economic well-being depends on the extension of intellectual property rights. Trade bodies such as the Motion Picture Association (MPA), the International Property Committee (IPC) (set up to ensure that the Uruguay Round of Multilateral Trade Negotiations produced an agreement on intellectual property rights satisfactory to its members) and the International Intellectual Property Alliance (IIPA) (established in 1984 to represent United States copyright industries) have had a profound impact on both United States domestic law and on the international regimes established to protect and enforce intellectual property rights.[25] As Peter Drahos and John Braithwaite have observed:

‘The visionaries and entrepreneurs who work the international corridors of power on behalf of [what the authors call information feudalism] want ever stronger and more rigorously policed international standards of intellectual property. They push a simple message – that the creation of more and more intellectual property rights will bring more investment and innovation. Like many simple messages, this obscures much’[26]

In general, the interest groups favouring the extension of intellectual property rights are very well-resourced, effectively organised and politically powerful, both at a national and an international level. Often they can enlist the support of national governments in multilateral and bilateral negotiations. The United States, in particular, has used trade negotiations to ensure, in the words of § 301 of the Trade Act 1984 (US), ‘adequate and effective protection’ for the intellectual property of United States corporations in other countries.[27] Trade benefits may be (and are) withdrawn from countries which fail to grant such protection. The United States has played a leading role in the negotiation of multilateral arrangements, such as the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), which, although reflecting compromises, have done much to advance the interests of the holders of patents, copyright and other forms of intellectual property.[28]

Sometimes the proponents of expanded intellectual property rights are faced with equally (or nearly equally) powerful interest groups opposing the expansion. The history of United States copyright law, for example, is replete with battles between opposing interest groups: music publishers and manufacturers of piano rolls and phonographs; the motion picture industry and cinema proprietors; record companies and radio stations and jukebox operators; program producers and cable television networks; authors and book publishers and libraries; music publishers and the manufacturers of tape recorders and other electronic equipment.[29]

Even so, the struggle is often unequal. Unless there is an organised and well-resourced interest group adversely affected by proposals to expand intellectual property rights, the proponents of legislative change face only diffuse groups with few resources and, typically, little political influence. As Jessica Littman observes:

‘[e]ach time we rely on current stakeholders to agree on a statutory scheme, they produce a scheme designed to protect themselves against the rest of us.’[30]

Because of the ‘inevitability of bias against absent interests’[31] the ‘rest of us’ are unlikely to be able to resist effectively.

Bilateral and multilateral international arrangements constitute a second force for extending the boundaries of intellectual property. International treaties and trade agreements often require the parties to create new species of intellectual property or to enforce existing rights more effectively.[32] Much of the intellectual property legislation enacted by the Commonwealth Parliament in recent decades has been designed to give effect to Australia’s treaty obligations. For example, the Plant Variety Rights Act 1987 (Cth) in substance implemented the International Convention for the Protection of New Varieties of Plants 1961 (‘UPOV’) which was a European initiative.[33] The Circuit Layouts Act 1989 (Cth) extended protection to a representation of the elements and interconnections making up an integrated circuit. The enactment of the legislation enabled Australia to join the World Intellectual Property Organisation (‘WIPO’) Treaty on the Protection of Intellectual Property in respect of Integrated Circuits 1989.

The Commonwealth Parliament has very extensive powers to create new species of intellectual property. Thus the constitutional validity of Plant Variety Rights Act 1987 was upheld in Grain Pool of Western Australia v Commonwealth,[34] as a law with respect to ‘Copyrights, patents of inventions and design and trade marks’.[35] Similarly, in Nintendo Co Ltd v Centronic Systems Pty Ltd,[36] the Court upheld the validity of the Circuits Layout Act 1989. The significance of these decisions lies in the broad construction given to s 51(xviii) of the Constitution. Parliament is not limited to enacting legislation authorising the creation of rights that would have been regarded as within the concept of copyright, patents, designs or trade marks in 1900. It can legislate to create fresh species of intellectual property rights, provided that they are the product of intellectual effort and create rights ‘in the nature of’ those specifically mentioned in s 51(xviii) of the Constitution. Parliament can also invoke s 51(xxix) of the Constitution (the external affairs power) to support legislation designed to implement Australia’s international treaty obligations. Given the range of international treaties and agreements concerning the creation and protection of intellectual property rights, the traditional boundaries of copyright and patent law, for example, present no significant limitations on the scope of Parliament’s powers.

There is, of course, a close relationship between the activities of interest groups and the burgeoning of intellectual property treaties and international agreements. The United States and, to a lesser extent, developed European countries, have been prepared to lobby vigorously for trade measures designed to assist the principal beneficiaries of intellectual property rights. While they have not always been able to achieve their negotiating objectives, they can bring to bear considerable pressure on other parties and, for that matter, on international organisations. According to Peter Drahos and John Braithwaite, more than one hundred nations that were large net importers of intellectual property rights signed a TRIPS agreement that benefited the tiny number of countries that were net exporters of such rights, most notably the United States. They argue that most importer nations, including Australia, lacked a clear appreciation of their own interests, in part because of the lobbying pressures to which negotiators were subject. Diffuse consumer interests were essentially shut out of the process.[37]

Technological change is a third powerful force creating pressures for the creation of new or expanded intellectual property rights since technological developments can swiftly render obsolete or ineffective existing laws and enforcement mechanisms. As copyright holders, for example, realise that they cannot protect their interests by purely technological means there emerges

‘a whole set of distinct demands for higher legal fencing as part of the digital agenda which politicians press at the behest of industry lobbyists and their star writers and performers.’[38]

A case in point of technological change outstripping the pace of legal change is the application of copyright law to computer programs. The definition of ‘literary work’ Copyright Act 1968 (Cth) was amended in 1984 to include a computer program. However, the concept of a computer program has itself had to be redefined as the courts have struggled, in cases like Data Access Corporation v Powerflex Services Pty Ltd,[39] to apply the statutory language to changing technology.[40]

When the new technology and international treaty obligations coincide, the pressures for the extension of intellectual property rights become almost irresistible. An illustration is the enactment of s 116A of the Copyright Act 1968 (Cth), which is designed to prevent a person from making so-called ‘circumvention devices’ capable of circumventing ‘technological protection measures’.[41] The origins of s 116A lie in two WIPO treaties, the Copyright Treaty and the Performances and Phonograms Treaty, each of these requires contracting parties to provide adequate legal protection and effective legal remedies against the circumvention of ‘effective technological measures’ that restrict acts not authorised by the holders of copyright or permitted by law.

SOME ILLUSTRATIONS OF COMPETING INTERESTS

The most striking feature of current intellectual property regimes in Australia and elsewhere is the continuing pressure for the creation of new rights or the expansion of existing ones. Plainly there can be good policy reasons, such as the need to respond effectively to technological innovation, to extend the protection accorded to the holders of intellectual property rights. On other occasions, proposals for change may have little to commend them other than their apparent propensity to protect the interests of such holders. The difficulty is to distinguish between the two categories. The point can be illustrated by four examples.

The Term of Copyright

As has been noted,[42] the FTA required Australia retrospectively to extend the term of copyright in works to the life of the author plus a period of seventy years. Prior to the enactment of the FTA Act, Australian law met the requirement of the Berne Convention[43] that the minimum term of copyright protection for a literary work be for a term equal to the life of the author plus fifty years.

The provision in the FTA requiring an extension in the term of copyright was driven by the same pressures that led to the enactment of the so-called Sonny Bono Copyright Term Extension Act 1988 in the United States. The duration of copyright in the United States has been gradually extended from a term of fourteen years, renewable for an additional fourteen years if the author survived the first term,[44] to the present term of the life of the author plus seventy years.

The application of the 1998 Act to existing works was upheld by the Supreme Court in Eldred v Ashcroft[45] as within the Copyright and Patent Clause of the United States Constitution. The Court held that the application of the extended term to existing works was consistent with the practice that had been adopted by Congress over many years. The Supreme Court also upheld the legislation against an attack based upon First Amendment grounds. The majority decided that the limited monopoly rights conferred on copyright holders were compatible with free speech principles. Indeed, according to Ginsburg J:

‘copyright’s purpose is to promote the creation and publication of free expression.’[46]

Despite the Supreme Court’s ruling, it is difficult to understand the policy justification for a further extension of the term of copyright, let alone for the application of the extension to subsisting copyright. Not surprisingly, having regard to the views he had expressed nearly thirty years earlier, Breyer J (dissenting) in Eldred v Ashcroft ridiculed the suggestion that a twenty year extension of copyright would act as an economic spur to authors to create new works:

‘What monetarily motivated Melville [he asked] would not realise that he could do better for his grandchildren by putting a few dollars in an interest-bearing account?’ [47]

Stevens J (also dissenting) pointed out that

‘Ex post facto extensions of copyrights result in a gratuitous transfer of wealth from the public to authors, publishers, and their successors in interest.’ [48]

It must be said that the benefits to Australians of the extension of copyright mandated by the FTA is not readily apparent.

The Criminalisation of Breaches of Intellectual Property Law

The FTA requires each party to provide for criminal penalties and procedures to be applied when a person is found to have ‘engaged wilfully and for the purpose of commercial advantage’ in certain activities.[49] The FTA also requires the parties to create new criminal offences, for example knowingly selling systems for ‘decoding an encrypted programme–carrying satellite signal’ without the authorisation of the lawful distributor of the signal.[50] These provisions reflect an established policy of criminalising deliberate commercial conduct which infringes intellectual property rights, especially copyright.

Section 132 of the Copyright Act 1968 (Cth) creates a range of criminal offences. Section 132(6A), for example, provides that a person who distributes for commercial purposes an article which that person knows or ought reasonably to know is an infringing copy[51] is guilty of an offence punishable on summary conviction by a term of imprisonment of up to five years.[52]

In Ly v Jenkins,[53] a challenge was made to a conviction under similar provisions, on the ground that the imposition of a five year sentence by a magistrate was beyond the jurisdiction of a Local Court and thus a federal law purporting to confer such a power on the Court was invalid. The argument was rejected, but the following point was made:[54]

‘it is anomalous that a Local Court in New South Wales can impose a sentence of imprisonment of up to five years in respect of a Commonwealth summary offence, but (subject to one exception) can impose a sentence of no more than two years imprisonment in respect of any State summary offence. The criticism gains force in view of the fact that Local Courts are limited to sentencing persons convicted of indictable offences triable summarily to terms of imprisonment not exceeding two years. It may well be...that insufficient thought was given to the jurisdictional question when the Copyright Act was amended so as to provide for penalties for up to five years imprisonment for summary offences under that Act.’

The determination of the appropriate penalties for criminal offences is a matter on which views differ. In a political climate in which ‘law and order’ issues play well, Parliamentarians are often influenced to increase maximum penalties by community sentiment. It is, however, unlikely that there is an overwhelming or even substantial community view that copyright pirates should be liable, on a summary conviction in a Local Court, to imprisonment for a term three years longer than that applicable to almost any summary conviction in the same Court under State law. The most plausible explanation for these extremely unusual arrangements is that they are designed to accommodate the arguments of copyright owners that severe criminal penalties are needed to deter piracy.

Copyright and Indigenous Culture

Indigenous groups seeking the protection of copyright or other intellectual property laws tend to have less political influence than substantial corporations wishing to persuade Parliament to extend the boundaries of intellectual property. Nonetheless, there are strong arguments for extending copyright protection to expressions of indigenous culture in Australia.

The law of copyright has been invoked, with some assistance from traditional equitable principles relating to confidential information, to protect indigenous artists from unauthorised exploitation of their work.[55] There is of course nothing new or surprising about an indigenous artist relying on the law of copyright to protect an ‘original’ work (as that term is understood in copyright law).[56] An indigenous artist should be no less able than any other artist to complain about the unauthorised use of his or her design or motif on a banknote[57] or on carpets.[58]

Copyright law has been adapted, in ways that can fairly be regarded as novel, to meet the particular circumstances and sensitivities of indigenous claimants. Thus in Milpurrurru v Indofurn, von Doussa J, in addition to conventional orders for the delivery up of the infringing carpets and damages in conversion, fashioned orders that enable the damages to be shared, in accordance with Aboriginal law and custom, equally among the artists (each of whom had utilised creation stories and Dreamings in their work). In addition, von Doussa J construed the Copyright Act as permitting an award of damages for culturally based harm sustained by the living claimants. In this way, the scope of copyright law has been expanded somewhat to protect not only the commercial interests of indigenous artists, but their cultural sensitivities.

Despite this kind of judicial creativity, it is generally recognised that copyright law provides inadequate protection to expressions of indigenous culture in Australia. The obvious limitations include the following:[59]

(i) There is a fundamental incompatibility between the assumptions underlying copyright law and the beliefs, aspirations and practices of indigenous communities. As Professor Blakeney has said (albeit perhaps somewhat inelegantly) the intellectual property paradigm involves the ‘incentivisation of creativity’.[60] In indigenous culture, generally speaking, custodianship is more important than creativity, reflecting the continuity of dreamings (referred to as Tjukurrpa in the Western Desert), ceremonies and the relationship with the land.
(ii) The critical assumption underlying copyright law, that rights are vested in an author or joint authors of a work, does not sit well with Aboriginal beliefs concerning the sources of authority to reproduce creation stories and dreamings. The right to reproduce images or stories resides in the traditional custodians.
(iii) The Copyright Act assumes that an unpublished work is made only when first reduced to writing or some other material form. This assumption rules out protection for intangible items of cultural heritage.
(iv) The period of copyright protection does not accord protection to cultural expressions that may be many generations old.
(v) Copyright law, of itself, does not enable indigenous people to restrain culturally offensive commercial exploitation of traditional designs or symbols as no one necessarily has copyright to such designs or symbols.

Although these limitations have been well documented, there has been no real effort in Australia to incorporate the principles formulated by international bodies such as WIPO for the protection of folklore. Moreover, an important opportunity to expand the protection accorded to indigenous culture was lost when the High Court firmly rejected the proposition that a determination of native title could extend to safeguards for the cultural knowledge associated with the claimed land or waters.[61] A more generous interpretation of the Native Title Act 1993 (Cth) would have redressed some of the limitations of copyright law in an area crucial to the preservation of Aboriginal culture, yet allowed for a gradual, case-by-case extension of protection.[62] In the absence of such an interpretation legislative intervention is warranted.

Moral Rights

A second illustration of intellectual property rights that could justifiably be extended are moral rights as applied to expressions of indigenous culture. In 2000, Australia belatedly implemented its obligations under the 1928 Rome Revision to the Berne Convention by enacting moral rights legislation.[63] The legislation establishes three moral rights: an author’s right to be identified as the author of a work; the author’s right not to have a work falsely attributed; and an author’s right of integrity of a work, including the right not to have his or her work subjected to derogatory treatment.[64]

The new moral rights are subject to important limitations. In particular, they are available only to individuals[65] (a matter of importance to indigenous communities who may seek to prevent what they see as misuse of traditional designs or motifs) and they only exist in relation to works in respect of which copyright subsists.[66] However, proposals have been put forward to adapt the moral rights legislation to address gaps in the existing law and to protect expressions of culture by indigenous communities.

During the Senate debate on the Copyright Amendment (Moral Rights) Bill 2000, an amendment was moved to confer moral rights on indigenous communities in respect of ‘indigenous cultural rights’.[67] While the amendment was not adopted, the Minister gave an assurance at the time that serious consideration would be given to the principles underlying the proposal. In May 2003, the relevant Ministers issued a press release stating that legislation would be introduced to protect ‘indigenous communal moral rights’. These rights would mirror the nature and scope of authors’ moral rights so far as possible and would be exercisable independently both of copyright and the moral rights vested in the creator of the material.[68]

Despite the announcement, indigenous moral rights legislation has not yet been introduced into Parliament. The reasons for the delay are not clear. What is clear, however, is that there is a strong case for conferring moral rights on indigenous communities as a means of protecting their cultural and spiritual sensitivities.

MARKING OUT THE BOUNDARIES

One effect of the apparently relentless expansion of the boundaries of intellectual property has been to expose the potential conflict between the objectives of intellectual property law and those of other areas of law and public policy. In the United States this can be seen in the invocation of the First Amendment protection of free speech to challenge the extension of the term of copyright. In the European Union and Australia, as well as in the United States, competition law may have an important role to play in marking out the boundaries of intellectual property.

In an interesting recent article,[69] the authors refer to a decision of the European Commission[70] which imposed a compulsory licence on the holders of copyright in weekly television listings. The Commission held that in exceptional circumstances a refusal to licence intellectual property rights could constitute an abuse of a dominant market position. In that case, the broadcasters were using their copyright in program listings to secure a monopoly in the derivative market of weekly television guides in Ireland and Northern Ireland. The Commission has followed the same approach in later cases.

In Australia, the position is complicated by s 51(3) of the Trade Practices Act 1974 (Cth). This provision exempts from s 45 (agreements which substantially lessen competition), s 47 (exclusive dealing) and s 50 (mergers) the imposition of a condition in a licence or an assignment by the holder of intellectual property rights. The exemption applies, in the case of a patent or copyright, only to the extent that the condition relates to the invention or work the subject of patent or copyright. It does not apply to s 46 of the Trades Practices Act (which proscribes misuse of market power) nor to s 48 (which proscribes retail price maintenance). Despite s 51(3), there is likely to be a direct clash at some stage between the objectives underlying intellectual property and competition policy. It is to be remembered that competition policy is one area in which a well-resourced and powerful statutory authority (the Australian Competition and Consumer Commission) is able to represent and promote otherwise diffuse and relatively poorly resourced interests.

The domestic and international pressures to expand the scope of intellectual property rights are likely to continue. Whether the pace of the expansion will continue unabated is likely to depend on the nature of the groups and entities that have an interest in resisting the pressures. They may emerge from some unexpected quarters.

---

[1] The Australia-United States Free Trade Agreement done at Washington DC on 18 May 2004. See now the US Free Trade Agreement Implementation Act 2004 (Cth) (‘FTA Act’).

[2] See, for example, T Faunce, ‘The Awful Truth About Evergreening’, The Age, 7 August 2004, 9; P Jones, Amendments to Drug Rules is Just Flogging a Dying Practice’, Sydney Morning Herald, 6 August 2004, 13; A Christie and S Pryor, ‘Evergreen Dilemma: Law Blind to Patent’s Purpose’, Australian Financial Review, 5 August 2004, 63. See now Therapeutic Goods Act 1989 (Cth), ss 26B, 26C (inserted by the FTA Act, Sch 7, cl 6).

[3] FTA, Art 17.4.4; R Gittins, ‘Selling Off a Slice of Our Country’, Sydney Morning Herald, 11 August 2004, 17. See now Copyright Act 1968 (Cth), s 33(2), as amended by FTA Act, Sch 9, cl 120, providing that copyright in a work subsists until the expiration of 70 years after the death of the author (previously 50 years). The extension of the term applies to copyright in works subsisting on the date the legislation commenced: FTA Act, Sch 9, cl 121.

[4] See C Arup, ‘The United States – Australia Free Trade Agreement – The Intellectual Property Chapter’ (2004) 15 AIPJ 205.

[5] T Macaulay, Speeches on Copyright (C Gaston, ed, 1914), 25 cited by S Breyer, ‘The Uneasy Case for Copyright: A Study of Copyright in Books, Photocopies and Computer Programs’ (1970) 84 Harv L Rev 281, 281. Macaulay’s speech was delivered in the House of Commons on 5 February 1841. For other examples of ‘an eighteenth and nineteenth century free-trade skepticism about intellectual property’ see J Boyle, ‘The Second Enclosure Movement and the Construction of the Public Domain’ (2003) 66 Law and Contemporary Problems 33, 53-57.

[6] P Goldstein, Copyright’s Highway: From Gutenberg to the Celestial Juke Box (Hill and Wang, 1994), 38.
[7] S Breyer, note 5 above.

[8] Id, 291 ff. See, too, B W Tyerman, ‘The Economic Rationale for Copyright Protection for Published Books: A Reply to Professor Breyer’ (1971) 18 UCA L Rev 1100; S Breyer, ‘Copyright: A Rejoinder’ (1972) 20 UCLA L Rev 75.

[9] P Drahos with J Braithwaite, Information Feudalism: Who Owns the Knowledge Economy? (Earthscan, 2002).
[10] Id, 2.

[11] W. Cornish, Intellectual Property: Omnipresent, Distracting, Irrelevant? (Clarendon Law Lectures: 2002) 1.

[12] L Lessig, The Future of Ideas: The Fate of the Commons in a Connected World (Random House, 2001), ch 2.
[13] G Hardin, ‘The Tragedy of the Commons’ (1968) 162 Science 1243.

[14] A resource is rivalrous if one person’s consumption of the resource limits another’s possible use of it.
[15] L Lessig, note 12 above, 85.
[16] Id, 40.

[17] J Boyle, note 5 above, 37.
[18] Id, 38.
[19] Id, 63.
[20] P Goldstein, note 6 above, 42.
[21] [1769] EngR 44; (1769) 4 Burr. 2303; 98 ER 201.
[22] [1769] EngR 44; (1769) 4 Burr 2303, 2335; [1769] EngR 44; 98 ER 201, 218.

[23] J. Brewer, The Pleasures of the Imagination: English Culture in the Eighteenth Century (1997), 135.

[24] (1774) 4 Burr. 2408; 98 ER 257. The bench did not include Lord Mansfield: see P Goldstein, note 6 above, 49-50.

[25] See P Drahos with J Braithwaite, note 9 above, chs 6-9, 11, esp 91-92, 94-99, 128-132, 174-180.
[26] P Drahos with J Braithwaite, note 9 above, 2.
[27] Id, 88-90.
[28] Id, ch 9.

[29] See J Littman, Digital Copyright (Prometheus Books, 2001), ch 3; J Littman, ‘Copyright, Compromise and Legislative History’ (1987) 72 Cornell L Q 857.
[30] J Littman, Digital Copyright, note 29 above, 62.
[31] Id.

[32] See generally, J McKeough, A Stewart and P Griffith, Intellectual Property in Australia (Butterworths, 3rd ed), 2004, Ch 21.

[33] The legislation was preceded by a report: J Lazenby, Australia’s Plant Breeding Needs: A Report to the Minister for Primary Industry (AGPS, 1986). The 1987 Act has been replaced by the Plant Breeders’ Rights Act 1994 (Cth) which was intended to ensure that Australian law complied with the most recent version of the UPOV: J McKeough et al, note 32 above, 409.
[34] (2000) 202 CLR 479.
[35] Constitution, s 51(xviii).
[36] [1994] HCA 27; (1994) 181 CLR 134.
[37] P Drahos with J Braithwaite, note 9 above, 192-197.
[38] W Cornish, note 11 above, 55-56.
[39] [1999] HCA 49; (1999) 202 CLR 1.

[40] The definition was most recently amended by the Copyright Amendment (Digital Agenda) Act 2000 (Cth), in order to implement the recommendations of the Copyright Law Review Committee, Computer Software Protection (1994). ‘Computer program’ is now defined in s 10(1) of the Copyright Act 1968 (Cth) to mean

‘a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result’.

[41] See Kabushiki Kaisha Sony Computer Entertainment v Stevens [2003] FCAFC 157; (2003) 132 FCR 31; K Weatherall, ‘On Technology Locks and the Proper Scope of Digital Copyright Laws – Sony in the High Court’ [2004] SydLawRw 29; (2004) 26 Syd L Rev 613.
[42] See note 3 above.

[43] Berne Convention for the Protection of Literary and Artistic Works 1886 (as amended), Art 7.
[44] As provided in the Copyright Act 1790 (US).

[45] [2003] USSC 722; 537 US 186 (2003). For a fascinating account of the background to the case and a mea culpa, see L Lessig, Free Culture (The Penguin Press, 2004), ch 13.
[46] Id, 219.
[47] Id, 255.
[48] Id, 227.
[49] See, for example, FTA, art 17.4.7.

[50] FTA, art 17.7.1. See also art 17.11.27, providing that in cases of wilful copyright piracy on a commercial scale, each party must provide

‘penalties that include imprisonment and monetary fines sufficiently high to provide a deterrent to infringement consistent with a policy of removing the monetary incentives of the infringer’.
[51] Copyright Act 1968 (Cth), s 132.
[52] Copyright Act 1968 (Cth), s 132(6AB).
[53] [2001] FCA 1640; (2001) 114 FCR 237.
[54] Id. 272-273, per Sackville J.

[55] R Sackville, ‘Legal Protection of Indigenous Culture in Australia’ (2003) 11 Cardozo J Int Comp Law 711.
[56] See Desktop Marketing Systems Pty Ltd v Telstra Corp Ltd (2002) 119 FCR 491.

[57] As in Yumbulul v Reserve Bank [1991] FCA 332; (1991) 21 IPR 481, where the design of a Morning Star Pole, used by people of north-east Arnheim Land, was reproduced on a ten dollar note.
[58] As in Milpurrurru v Indofurn Pty Ltd [1994] FCA 975; (1994) 54 FCR 240.
[59] R Sackville, note 55 above, 723-727.

[60] M Blakeney, ‘Protection of Traditional Knowledge under Intellectual Property Law’ (2000) 22 EIPR 251, 252.

[61] Western Australia v Ward [2002] HCA 28; (2002) 213 CLR 1, 84. See, generally, M Rimmer, ‘Blame it on Rio: Biodiversity, Native Title and Traditional Knowledge’ (2003) 7 Southern Cross University LR 1, 23 ff.

[62] Compare Alyawarr v Northern Territory (2004) 207 ALR 539, where Mansfield J included the following in the determination:

‘the right to control the disclosure (otherwise than in accordance with traditional laws and customs) of spiritual beliefs or practices, or of the paraphernalia associated with them (including songs, narratives, ceremonies, rituals and sacred objects) which relate to any part of or place on the land or waters.’

[63] See now Copyright Act 1968 (Cth), Part 9, Divs 1-3, introduced by the Copyright Amendment (Moral Rights) Act 2000 (Cth). The legislation was enacted despite a contrary recommendation by the Copyright Law Review Committee in 1988: see J McKeough et al, note 32 above, 142-143. For an example of a claim by indigenous artists against the International Olympic Committee, based on Swiss moral rights legislation, see M Rimmer, ‘Australian Icons: Authenticity Marks and Identity Politics’ (2004) 3 Indigenous LJ 139, 147-149.
[64] Copyright Act 1968 (Cth), Part 9, Divisions 1, 2 and 3.
[65] Copyright Act 1968 (Cth), s 190.
[66] Copyright Act 1968 (Cth), s 189.

[67] The form of a proposed amendment is reproduced in T. Janke, ‘Berne, Baby, Berne: the Berne Convention, Moral Rights and Indigenous People’s Cultural Rights’ [2000] IndigLawB 47; (2001) 5 Indigenous Law Bulletin 14, 17.
[68] See M Rimmer, note 63 above, 149-150.

[69] C. Oddie and P. Eyers, ‘Erosion of Rights–Or Redressing the Balance: Competition Challenges to Intellectual Property Rights’ (2004) 12 Trade Practices LJ 6.
[70] Radio Telefis Eireann v Commission of the European Communities [1995] ECR I-0743.