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Drakopoulos, Elizabeth --- "How Come I End Up Where I Started? How Come I End Up Where I Went Wrong? Copyright Reform in the Digital Age" [2015] UNSWLawJlStuS 2; (2015) UNSWLJ Student Series No 15-02


HOW COME I END UP WHERE I STARTED? HOW COME I END UP WHERE I WENT WRONG?

COPYRIGHT REFORM IN THE DIGITAL AGE

ELIZABETH DRAKOPOULOS

Copyright, at its core is a form of government regulation that provides producers of creative works with a limited monopoly to encourage and promote the dissemination of valuable cultural goods to the public. This is the central principle that underpinned copyright at its inception and is the purest reason for its continuance as a modern legal framework.

Over time there has however, been a profound change in the way creative works are produced and consumed. While this has been a progressive change undoubtedly the most pivotal moment has been the advent of the digital age. As such the challenges for copyright in this new environment are numerous[1], with the role, structure and function of copyright law becoming a point of international contention[2].

Developing a copyright system to meet these challenges has unsurprisingly proven to be difficult[3]. Reform in this area attracts a number of stakeholders often with divergent and competing interests encompassing a range of social, cultural and economic implications.

Notwithstanding this complexity legal academics have met the question of copyright reform for the digital age with great fervour and an innovative spirit developing numerous suggestions for alternatives[4]. Government has also expressed a sustained interest in reform. However, a general point of clear divergence between the weight of academic opinion and Government response has related to choices as to the types of reform that have occurred.

Internationally this has been a clear trend in contemporary copyright reform[5]. Domestically, the Australian situation has been much the same where since the formation of the ‘Digital Agenda’ in the mid-1990s the copyright landscape has become littered with discussions, inquiries and reports, with the Copyright Act 1968 (Cth) having been amended in major ways on numerous occasions[6].

Overwhelmingly, the Australian reform experience has been unsatisfactory with the vast majority of stakeholders considering the current copyright system as lacking. An added level of complexity is that these stakeholders often consider reforms inadequate for entirely opposing reasons[7].

Generally the debate may be split between user-advocates on the one hand and industry proponents on the other. User-advocates consider the majority of reform as creating a system that unduly restricts access to works in a way that is draconian and detrimental to the public interest. While content owners and industry proponents view the current system as not sufficiently protecting their commercial outputs or providing sufficient incentives for the creation of new content.

Given this polarised debate, choices for copyright reform have come to usually represent some level of compromise or trade-off between stakeholder interests, largely unguided by reliance on fundamental copyright principles or goals[8]. A central criticism often levelled at copyright reform is that the ‘compromise’ espoused by Government is a skewed one whereby the interests of copyright owners are allowed to outweigh the legitimate interests of other stakeholders[9], and that this has led to inadequate reforms taking place because valuable alternate viewpoints are being overshadowed[10].

In Australia this skewed compromise is embodied in the current copyright system that is decidedly favourable to content owners. One example may be those changes that resulted from the Australia United States Free Trade Agreement[11] in 2005, which certainly strengthened the position of content owners, while not incorporating a comparable US-style fair use exception.

Criticism of the unbalanced nature of copyright reform choices tends to lead to the conclusion that the fundamental problem that has plagued copyright debate in the digital age is that the industry lobby is too closely aligned with Government and therefore, the path to more meaningful reform will only be paved by dismantling this connection through fiercely critiquing the arguments put forward by this group.

However, this conclusion is superficial as it oversimplifies and disregards the policy shift that has occurred during the digital age that conveys an effort by Government to formulate an improved balance between industry and the public interest[12]. The conclusion that industry is simply controlling Government in this area does not explain the provision of new exceptions, the recognition and movement towards ‘opens’ policy[13] or even the development of the ‘Digital Agenda’.

Not only is the conclusion superficial but also it is problematic in terms of the reform process in two regards. Firstly, it perpetuates the polarised nature of the debate by creating a false assumption that the primary role of the alternative is to disagree with industry arguments[14]. Secondly, as a hollow conclusion it obscures far more significant issues in the copyright reform discourse of which this unbalanced approach is merely a symptom.

In this paper three recurrent themes, being traditional economic analysis, the ‘original author’ trope and blindness to the public interest, all of which are equally pervasive and problematic aspects of the contemporary copyright reform discourse, will be analysed in order to explain the consistent failure of copyright reform for the digital age in Australia. From such a discussion it will become clear that where, the above mentioned themes are allowed to determine the framing of the discourse pro-industry arguments immediately become more persuasive, while alternative positions appear weak, incongruous or radical.

The clear conclusion is that the skewed compromise that has represented the central guiding principle of copyright reform in the digital age is an inevitable consequence of a debate framed by wholly problematic, often illogical and frequently false ideas.

The impact of this problematic discourse will specifically be viewed through the lens of the recent Australia Law Reform Commission (ALRC) inquiry into Copyright and the Digital Economy[15].

Consideration of the reception to the fair use recommendation will highlight the impact of these three themes because even though it is a reform that is gaining momentum[16] as a necessary and meaningful change for the digital age, it is vehemently opposed by industry and has been consistently rejected by Government. While in one sense this could be viewed as simple evidence of the unhealthy alignment between Government and industry, a more interesting and illuminating way of looking at this issue is with specific regard to the three problematic themes identified above. When this is done it becomes clear that it was inevitable that the arguments for fair use would be dismissed as entirely ‘unconvincing’.

At this stage it should be noted that while this discussion seeks to analyse three problematic aspects of copyright discourse as a significant reason for the futility and substandard nature of reform in the digital age there are also a number of other political[17] and practical barriers[18] to change that while not being discussed here, contribute considerably to the current situation.

While copyright reform in the digital age is neither a simple nor easy task a better response that can only be delivered through an improved debate is unequivocally needed. Through an exploration and analysis of some fundamental, yet often overlooked issues in copyright discourse, this discussion seeks to emphasise some necessary considerations for development of this better response.

ALRC REPORT INTO COPYRIGHT AND THE DIGITAL ECONOMY

Before specifically considering the themes present in the problematic discourse it is necessary to briefly understand the context and content of the recent ALRC Report into Copyright and the Digital Economy and the subsequent response by Government[19].

The ALRC Report resulted from an inquiry, instigated by the former Labor Government in 2012, into whether the current exceptions and statutory licences in the Copyright Act are adequate and appropriate in the digital age. The terms of reference[20] represented a renewed focus on the unique nature and challenges of contemporary copyright and evidenced a shift in policy directed at reaching an improved balance between stakeholders in this new context.

Importantly the terms of reference of the Inquiry were clearly defined and encouraged a nuanced consideration of aspects of copyright that have at times been ignored including the ‘objectives of copyright law in providing an incentive to create and disseminate original materials’[21] and ‘the general interest of Australians to access, use and interact with content in the advancement of education, research and culture’[22] while being framed by a goal of ensuring respect for authorship[23].

From the outset it was clear that the ALRC had finally received an opportunity to consider fair use[24] and, as Weatherall prophetically noted in 2007[25] it was extensively discussed (with over 850 stakeholder submissions received[26]) and eventually became the principal recommendation of the Report.

The Report was tabled in the Senate in February 2014, providing a detailed analysis of and recommendations for the development of a more flexible, user-friendly copyright system suitable for the digital age. The Report included a chapter entitled ‘The Case for Fair Use’[27], which made clear the firm belief of the ALRC that in keeping with the context and goals of the Inquiry a fair use provision consolidates existing exceptions, is flexible, promotes the public interest, assists innovation and protects the markets of rights’ holders.

In summary the Report strongly believed that a fair use exception is the most suitable model for copyright in the digital context. It clearly presents benefits to the public by allowing broader access to and engagement with works, and is an opportunity to partially ameliorate some of the overly complex, restrictive and anachronistic aspects of the current system[28]. Many of these benefits had already been described in the ‘simplification review’[29] conducted in the late-1990s by the now defunct Copyright Law Review Committee (CLRC).

In tabling the Report to the Senate, Attorney-General George Brandis unsurprisingly described it as ‘the most significant’[30] inquiry into the Copyright Act since its inception in 1968.

However, the ALRC recommendations, similarly to the CLRC review, were dismissed swiftly and unapologetically for apparently not providing a ‘convincing’ argument as to any ‘genuine benefits’ of the ‘controversial’ fair use provision[31]. This dismissal of the recommendations was buoyed by the negative response to the recommendation by pro-author and industry groups that focussed on fear surrounding the economic detriment to artists[32] and the uncertainty placed on existing commercial endeavours[33] – fears that are apparently not alleviated by the United States having had a fair use exception for a number of decades[34].

The very next day in a speech[35] to the Australian Digital Alliance, Brandis reiterated that he was not persuaded as to the need for a fair use exception and promptly re-focussed copyright reform to online copyright infringement. This policy shift focuses on a poorly articulated problem and unfortunately conflates the fair use exception with an entirely separate issue. In this context any claim as to the commitment of Government to meaningful copyright reform appear empty and misguided.

Consequently, Australia has once again been left with the piecemeal and often criticised fair dealing provisions and with little to no explanation as to what exactly would constitute ‘genuine benefits’ such that fair use could be implemented to replace the status quo[36].

With this context in mind the discussion will proceed to analyse the problematic contemporary copyright discourse in Australia and what might explain the shelving of the ‘most significant review’ into copyright in almost fifty years. In particular there will be a focus on how conceptual and rhetorical missteps explain the inevitability of Brandis’ claim that fair use does not provide ‘convincing’ or genuine benefits, in spite of the ALRC Report to the contrary.

THE THREE THEMES

In 1997 James Boyle, in A Politics of Intellectual Property: Environmentalism for the Net?, considered the controversy at that time over copyright on the Internet and in particular criticised the White Paper instigated by the Clinton Administration, for containing a number of issues that in his view led to significant illogical errors and baselines faults in that copyright reform process[37].

In this paper Boyle begins by describing the social and economic importance of the ownership and control of information as a result of the digital age. In his view the lack of specific political economy for copyright leads to an unsophisticated analysis of reform that has a ‘distressing tendency to misstate, minimise or simply ignore contrary cases, policy and legislative history’[38].

Three interconnected themes may be drawn out from Boyle’s discussion, that together, produce a pattern of thinking about copyright that leads to a tendency to ‘over-protect’ the interests of copyright owners[39] and to marginalise alternative arguments. The first is a predisposition to apply traditional individualised, economic analysis as a theoretical model for determining the direction of copyright law. The second is the romanticised notion of the ‘original author’ and the inclination to consider that copyright is primarily for this group of creators. The third follows from the second and that is a blindness to the public interest on the part of policy makers.

Boyle’s commentary, although directed at American copyright law and written almost twenty years ago is still applicable and provides great insight into the Australian copyright reform process throughout the digital age. In and of itself the continued relevance of the work is a demonstration of how pervasive and ingrained the three themes are in copyright discourse on both a domestic and international level.

The following discussion seeks to not only identify the presence of these themes in the discourse but to also analyse the boundaries that are placed on reform by promoting reliance on social, cultural and economic assumptions that do not form a realistic or proper foundation for the development of an effective copyright framework. The consideration of the ALRC Report conveys that different results are achieved where an approach that is not informed by these themes, but rather is conducted in a vacuum, is taken as opposed to the reform choices made once the same question is posed in the broader discourse.

While each of these themes informs and perpetuates the other, they will be considered separately in turn for the sake of clarity and completeness.

A Traditional Economic Analysis

Economic analysis is a common and useful tool for gaining insight into the proper direction of law reform. Copyright law is often the subject of such economic analysis. Along these lines much copyright reform discourse seeks to apply traditional or neo-classical economic understandings to conceive copyright as analogous to an individual property right that is natural and absolute, operating within a market. While the limitations of such an analysis have been well noted by an increasing number of academics[40] this traditional approach still informs a central aspect of copyright discourse.

The problems experienced as a result of this theme framing copyright reform for the digital age are two fold, collectively contributing to a pattern of thinking that favours the expansion of copyright and discourages the introduction of new, broad exceptions such as fair use.

The first problematic aspect is that essentially the application of this traditional economic analysis to copyright is one ‘beset by internal contradiction and uncertainty’[41] and the related analogy of property is very limited. This is because copyright by definition is a limited monopoly imposed by government for the promotion of the production and dissemination of creative works as public goods and therefore, while it provides some form of individual ownership with potential economic value, it is entirely distinct in most ways from a natural or absolute property right.

The issues created by the continued application of this ill-fitting conceptual approach are numerous. Particularly the notion that copyright is a natural property right promotes the idea that the rights afforded should be strong and exclusive to a point that is far beyond a limited monopoly required to balance the interests of the creator with those of the public[42]. In addition, it promotes an individualised conception of the right that ignores the mix of private and public regulatory aspects of copyright[43]. Furthermore, it encourages the idea that the incentive is proportional to creativity and promotes the false notion that it is the primary duty of copyright law to engage capital[44].

Thus, while expanding copyright within this theoretical framework can be justified by ‘compelling economic logic’,[45] it occurs without proper consideration of the specific negative impacts that may be incurred because these are overly simplified and obscured.

While this issue has always been present to some extent, prior to the digital age the contradictions and limitations could be more readily bypassed and as a result traditional economic analysis was a more persuasive influence on policy-makers, especially in the prominent jurisdiction of the United States[46]. However, the limitations of the approach are now being fully realised because the restrictions that could previously obscure the contradictions are no longer relevant.

Creative works now exist at a higher level of abstraction devoid of any tangible product[47]. A work may be shared infinitely without degradation exclusive of geographical barriers and at minimal cost and delay. Therefore, the analogy with property that largely made the traditional economic analysis compelling finds significant difficulty in the digital age.

As a result of these changes the issues, as noted above, have been brought to the fore and consequently some shift in policy with the digital age as the catalyst has occurred[48]. For example the increased magnitude and recognition of non-market based creativity, the ‘opens’ movement and its inclusion in mainstream government policy, and even the development of the digital economy as a concept are all shifts that both highlight and are a direct response to the limitations of the traditional economic analysis of copyright.

However, despite these changes and the clear problems incurred, the traditional economic approach is still evidently being maintained as a significant theme of broader copyright discourse; one does not need to delve deep into the Government’s Inquiry into Online Copyright Infringement[49] or even Brandis’ speech[50] tabling the ALRC Report where he repeatedly refers to the maintenance of incentives for creative content producers, the provision of ‘fair compensation’ and the protection of the ‘rights of content creators’ to find examples of its application.

In terms of copyright reform in the digital age, with this theme framing the discourse, the content industry lobby is in an inherently stronger position to make arguments in its favour by utilising the concept of individual property rights and claiming the importance of eternally improving incentives. The crux of its position[51] is that any apparent erosion of such rights, such as through the adoption of a fair use exception, is inherently unfair and will eventually result in the breakdown of the entire market that will cease production of creative works[52].

While the ALRC in its Report did consider the incentives of content owners and maintaining respect for authorship, a recommendation for fair use was justified on the basis that a number of other principles being given equal weight would be served by its implementation and that no dominant economic model or idea of property rights could displace these benefits.

The second problematic aspect of the traditional economic analysis is that the concepts that it encompasses have such a comfortable familiarity and mainstream support that the general approach and related assumptions are almost incontestable.

Reforms such as fair use that apparently seek to disrupt the traditional functioning of the market by promoting broader unremunerated use of works are viewed as a radical challenge to a generally accepted theoretical understanding.

This in turn promotes a ‘faith-based’ rather than ‘evidence-based’ approach to reform that assumes results rather than analysing the specific policy reasons for a change and thereby hinders the development of a discourse that incorporates the unique aspects of copyright law[53].

This issue is best illustrated by a consideration of the dismissal of fair use as being ‘controversial’ or ‘alien’[54]. Such a criticism ignores that fair use builds on common law traditions[55] and relies on a number of already well-established elements currently present in Australia’s existing fair dealing provisions. In other words the strong assumptions that derive from the traditional economic analysis evidently displace understandings specific to copyright and thereby place unwarranted restrictions on the path that reform may take.

Overall the rejection of fair use may therefore be partially explained by the prominence of traditional economic analysis in copyright discourse as it establishes a baseline informed by unjustified assumptions that clearly favours the protection of individual ‘property rights’[56]. This conceptual framework restricts reform to serving the provision of monetary incentives as the primary concern and directs copyright away from its specific, fundamental principles. As a result reforms such as fair use cannot succeed.

B Original Author

A central notion of copyright discourse is the perceived special social and cultural significance of the ‘original author’, and that this importance should be reflected in choices for law reform[57]. The result of this original author model is a policy response that is unduly receptive and sympathetic to the interests of particular content owners – the creators of ‘great Australian films, the great Australian television dramas, the great Australian albums’[58], that fit into this notional category of creator.

Effectively, because of the apparently greater significance of his or her work the ‘original author’ becomes the primary client of Government with regard to copyright reform. Subsequently, when this client is threatened by a proposal they can mobilise quickly and effectively to demand the attention of policy makers[59].

This theme is problematic because it promotes a hierarchy of interests on the basis of a romanticised perception of creativity that relies on false assumptions rather than promoting reform based on careful consideration of the reality in which copyright operates.

The digital age and rise of Web 2.0 technologies make the ‘original author’ notion particularly untenable[60] because works are irrepressibly transformed, remixed and altered such that these newer forms of creativity have become a substantial and indelible aspect of contemporary culture.

Importantly the notion of originality on which this models hinges is particularly flawed. Upon deeper consideration it imports a standard of originality seemingly based on ‘immaculate conception’ that is not reflected legally[61] or was even culturally true, with 18th century author Lord Byron writing; “as to originality, all pretensions to it are ludicrous – there is nothing new under the sun.”[62]

In terms of copyright reform one restrictive aspect is that this way of thinking perceives the ‘original author’ as inherently superior to all other stakeholders. Consequently, the interests of creators outside of the mainstream, whose works may be classified as derivative and transformative, that do not fit into this model are marginalised.

The ALRC specifically focussed on a broad range of creative works; from ‘books to blogs’ to ‘music to mash-ups’[63], representing both traditional and newer forms of creativity. By establishing that these diverse works are of significant cultural importance the Report could make a clear argument for fair use founded on the basis of encouraging such forms of creativity.

However, in the broader discourse with the ‘original author’ at the fore, the recommendation was never going to be received favourably because it seeks to promote the creation of works through the appropriation, transformation and alteration of existing works. In other words, it seeks to justify reform on the basis of encouraging these apparently inferior ‘unoriginal’ works.

The original author model also implicitly recognises a supposedly clear, binary distinction between the creator and user such that the interests of the original author may be identified. In addition, a further assumption is made that the interests of these groups are homogenous, such that the best interests of the original author may be pursued.

Simple consideration of the diversity of the stakeholder submissions to the ALRC highlights the blind spots and fallacies underpinning these assumptions. For example while the substantive position of the Copyright Agency[64] may be more readily apparent and unified, the education sector[65] is decidedly more disparate as it is both a user and creator of content, across most mediums in both traditional and transformative ways all within the non-profit context. Clearly, such a stakeholder, while having very legitimate interests in copyright reform, is not served by the assumptions relied upon by the ‘original author’ model.

Thus overall while the ‘original author’ is an accepted mainstream conception of a central interest protected by copyright it represents a problematic aspect of the discourse because it is founded upon a romanticised and largely unsubstantiated notion of creativity. It therefore, unduly restricts the direction of reform, diminishes the value of the public domain, and establishes an unbalanced approach that is directed at protecting a particular category of author. This is obviously a condition substantially favourable to industry as it represents a well-defined group of largely traditional content owners.[66]

C Blindness to the Public Interest

The final theme is a distillation of the combined impact of the traditional economic analysis and the original author model on copyright discourse. It is a blindness to the public interest which occurs because once a cost-benefit analysis is applied losses to the public are difficult to quantify due to the diverse interests at stake and furthermore, even where the public interest is considered the losses incurred are viewed as severely inferior to the rights of content owners as a result of the favouritism of the original author.

Despite its clear interrelationship with the concepts already discussed, this theme is treated as a distinct flaw within the discourse because it highlights a decidedly disconcerting ignorance of the central goal of copyright[67]; that is the encouragement of the creation and dissemination of works for the public interest. Where it is the case that reforms are being guided without proper regard for the public interest it is unsurprising that many would consider the changes unsatisfactory.

Furthermore evidence of blindness to the public interest is the embodiment of the skewed compromise that is the much-criticised aspect of copyright reform in the digital age. It showcases that currently the discourse is not framed in a way that can produce an adequate balance between stakeholders.

Blindness to the public interest as a theme framing current copyright discourse is best seen in Brandis’ speech tabling the ALRC Report where he repeatedly ‘reaffirm[s] the Government’s commitment to content industries’[68] but does not make any specific mention of the public interest or public domain. On a principled consideration of copyright this omission may be viewed as ignoring at least one half of the policy-making equation.

This theme as an entrenched aspect of copyright discourse is also reflected in the rhetoric and structure of the current copyright legislation. For example as Patry notes[69], rhetoric such as ‘exceptions’ implicitly reflects the notion that the public interest is inferior or somehow illegitimate and as Bowrey notes[70] with specific regard to Australian legislation:

Thus to speak for the public, one has to speak of silences and gaps in the law located across various sections of an unwieldy body of legislation that enable access. In Australian copyright, the public interest is only partially formulated. At best it is expressed as the negative or as residual. It comes to light by reference to the positivity of the owner’s defined interests.

The issue created by this theme in terms of copyright reform for the digital age is that it reinforces a false hierarchy of interests and obscures fundamental goals of copyright. Thus while the ALRC could make a strong argument for fair use by having regard to a number of principles based on furthering the public interest once in the broader discourse these benefits were dismissed as not being ‘genuine’ because they do not further the narrow interests in the defined way that is in keeping with an economic analysis. Plainly, the public interest is viewed as subsidiary and incidental, and therefore is not a distinct basis for law reform.

Furthermore, where there is such blindness to the public interest the arguments that are perceived as relevant and persuasive are also severely limited. Therefore, while proponents of reforming the status quo through a fair use provision may argue that such a change better aligns to consumer expectations[71] and improves reasonable access[72] to content these arguments are not considered relevant because they seek to promote an illegitimate interest above those for which copyright is naturally bound to protect.

Consequently the strength of alternative arguments is once again immediately diminished in a debate informed by this conceptual understanding. The skewed compromise that undeniably favours industry is the result.

CONCLUDING COMMENTS

Plainly there is something rotten in the state of contemporary copyright reform. It is a system that despite generating broad interest, being the subject of numerous reviews and having no shortage of possible solutions from academic commentators, is still overwhelmingly criticised as substandard.

This discussion has sought to describe and analyse three themes being; the traditional economic analysis, original author model and blindness to the public interest, that largely developed prior to the digital age but have remained as undue restrictions on the direction of reform. The existence of these themes limits the effectiveness of discussions that have occurred and perpetuates the polarised, futile nature of the debate.

Together, these themes tend to produce favouritism towards copyright owners because the provision of incentives and protection of certain rights are considered paramount to those of other stakeholders. Essentially copyright is wrongfully reduced to having a narrow focus that is an extension of an individual property right operating mostly within the private sphere.

Furthermore, with these themes acting as pillars for copyright discourse issues principally relevant to copyright tend to become obscured or distorted. In particular the interests of consumers, users and creators that rely on transformative use are marginalised and the detriment to these groups in terms of reduced access is viewed as incidental to the apparently primary task of protecting the rights of ‘original authors’.

Considering the ALRC Report and its recommendation for a fair use exception has highlighted the restrictions placed on reform. It has been conveyed that largely as a result of the three themes informing copyright discourse the arguments for fair use become ‘unconvincing’ because such a change relies on an alternative view of copyright that seeks to promote new types of use and the creation of diverse works, and is primarily justified with regard to furthering the public interest.

Importantly the reliance on these themes tends to import social, cultural and economic assumptions that inform law reform without substantiated reasoning and thereby inhibits the development of a copyright discourse in a manner that fully understands the challenges specific to this area in the changing environment.

A question remaining for further future discussion is why these problematic themes, despite the increasingly apparent issues that have been discussed here, continue to form the central framework of copyright discourse.

Given the ingrained nature of these themes a suggestion may be made that the alignment of industry and Government may be due to a more fundamental desire to maintain the status quo because challenging the validity of such well entrenched notions is a possibly majorly disruptive task[73].

Clearly, escaping this futile process and achieving meaningful reform is more than exposing and breaking down the relationship between industry and Government. It requires the removal of powerful but problematic concepts currently informing the discourse.

In this context and given the ease with which the recent the ALRC Report was dismissed by Government a strong argument may be made that the existing law reform instruments are not adequately equipped to overcome the assumptions that currently frame and restrain the discourse.

The creation of a specialised copyright reform committee similar to the now defunct CLRC seems at least worth a more detailed consideration[74]. Such a body could investigate copyright reform more regularly and most importantly could facilitate the development and broad adoption of an improved copyright discourse unencumbered by the problematic themes currently restricting reform. In this way much needed meaningful reform could possibly occur.


[1] Some of these changes are described by Weatherall ‘IP in a Changing Environment’ in Emerging Challenging in Intellectual Property, (Oxford University Press, 1st ed, 2011), 14 -16.

[2] Some of these challenges are descried by Samuelson, P ‘Preliminary Thoughts on Copyright Reform’ Utah Law Review 2007 551.

[3] Bond et al ‘Advance Australia Fair? The Copyright Reform Process’ (2007) 10 The Journal of World Intellectual Property 284, 284 – 313.

[4] See generally; Patry, W, How To Fix Copyright (Oxford University Press, 1st ed, 2012); Litman, J ‘Real Copyright Reform’ (2010) 96 Iowa Law Review 1; Mazzone, J Copyfraud and other abuses of Intellectual Property Law (Stanford university Press, 1st ed, 2011).

[5] See generally; Horten, M, A Copyright Masquarade: How Corporate Lobbying Threatens Online Freedoms (Zed Books, 2013).

[6] Bond et al above n 3.

[7] For a general overview of the debate see Yu, P ‘Digital Copyright and Confuzzling Rhetoric’ (2011) 13, 4 Vanderbilt Journal of Ent. And Tech. Law 881.

[8] Sainsbury, M ‘Context or Chaos: Statutory Interpretation and the Australian Copyright Act’ (2011) 32, 1 Statute Law Review 54, 55.

[9] As Sainsbury states: “One criticism of modern copyright law, both in Australia and beyond, is that reforms are generally driven by copyright owners, those who hold the bargaining and economic power and are generally more organised and consolidated to act as a group”, above n 7.

[10] As Burrell et al state: “Anyone who has studied the historical development of copyright exceptions in British Commonwealth jurisdictions cannot fail to be struck by an historical pattern that can be traced back many decades, whereby official bodies charged with reviewing the state of copyright law become convinced of the need to liberalise the exceptions, only to find many of their recommendation watered down or ignored entirely”, in ALRC Submission 716, 2.

[11] For an overview of more recent reforms see generally; Bond et al above n 3, and Weatherall, K ‘Of Copyright Bureaucracies and Incoherence: Stepping Back from Australia’s Most Recent Copyright Reforms’ [2007] MelbULawRw 37; [2007], 31, Melbourne University Law Review 967.

[12] Weatherall ‘IP in a Changing Environment’ in Emerging Challenging in Intellectual Property, (Oxford University Press, 1st ed, 2011), 9 – 11, also Intellectual Property and Competition Review Committee, Review of Intellectual Property Legislation under the Competition Principles Agreement (2000) 34.

[13] For example the development of the Australian Governments Open Access and Licensing Framework (AusGOAL) in 2011.

[14] Bowrey, K ‘Can a Public-minded copyright deliver a more democratic internet’ 56 University of New Brunswick Law Journal 26, 29.

[15] Australian Law Reform Commission, Copyright and the Digital Economy, Final Report, ALRC Report 122 (29 November 2013) (‘ALRC Final Report’).

[16] Reviews considering fair use and its growing acceptance are described in the ALRC Final Report, 87 – 93.

[17] For example the change in government between the instigation and completion of the Report is a relevant political factor not discussed here. Further political implications related to recent reforms are also discussed in Burrell R, et al ‘Exporting Controversy? Reactions to the Copyright Provisions of the U.S-Australia Free Trade Agreement: Lessons For U.S Trade Policy’ (2010) 2008 No. 2 Journal of Law, Technology & Policy 259.

[18] See generally; Sainsbury M, above n 8.

[19] For a more detailed discussion of the Report and stakeholder responses see Alexander and Fraser, ‘Copyright Reform in Australia: Asking the Right Questions’ (2014) 6(1) Journal of Media Law 8.

[20] ALRC Final Report, above n. 15, 7.

[21] ALRC Final Report, above n. 15, 20.

[22] Ibid.

[23] Ibid.

[24] Ibid.

[25] Weatherall. K ‘So Call Me a Copyright Radical’ [2012] Sydney Law School Legal Studies Research Paper No. 12/44 8.

[26] Senator the Hon. George Brandis QC, ‘Statement to the Senate Tabling the Final Report of the ALRC Inquiry into Copyright and the Digital Economy’ (Delivered in the Australian Senate on 13 February 2014).

[27] ALRC Final Report, above n. 15, Chapter 4, 87 – 120.

[28] Or in the words of Brandis “The Copyright Act is overly long, unnecessarily complex, often comically outdated and all too often, in its administration, pointlessly bureaucratic”. Senator the Hon. George Brandis QC, ‘Address at the Opening of the Australian Digital Alliance Fair Use for the Future – A Practical Look at Copyright Reform Forum’ (Delivered on 14 February 2014).

[29] Copyright Law Review Committee, Simplification of the Copyright Act 1968. Part 1: Exceptions to the Exclusive Rights of Copyright Owners (1998).

[30] Brandis, above n. 26.

[31] Brandis, above n. 26.

[32] See for example Arts Law ALRC Submission 706.

[33] As the Copyright Agency argued in ALRC Submission 727: “It is fair to say that creators are anxious about the Trojan horse implications of exceptions: exceptions can be introduced to allow a use with seemingly limited implications for content creators, but later used to develop a commercial offering” at 6.

[34] Adam Turner, ‘Why deny US-style fair use copyright laws to Australians?’, Sydney Morning Herald (Sydney) February 19 2014.

[35] Brandis above n. 28.

[36] As Burrell et al note, “A cynic might be forgiven for wondering how may times users must succeed in making the case for reform before it is accepted that the burden of proof has shifted to those who wish to maintain the very restrictive approach to copyright exceptions” above n. 9, 3.

[37] Boyle, J ‘A Politics of Intellectual Property: Environmentalism for the Net?’ (1997) 47 Duke Law Journal 87.

[38] Boyle, above n 36, 102.

[39] Boyle, above n. 36, 95.

[40] For detailed discussion of the economic analysis of copyright, see P Drahos with J Braithwaite, Information Feudalism: Who Owns the Knowledge Economy? (Earthscan, London, 2002) and W Landes and R Posner, The Economic Structure of Intellectual Property Law, Belknap Press, Cambridge MA, 2003.

[41] Boyle, above n. 36, 95.

[42] Weatherall, above n. 1, 16.

[43] Boyle, above n. 36, 105.

[44] Bowrey discusses this in Chapter 4 of Law & Internet Cultures (Cambridge University Press, 1st ed, 2005), and draws on points by Benkler, Hardt and Negri.

[45] Weatherall, above n. 1, 7.

[46] Weatherall, above n.1, 9.

[47] Bowrey, above n. 43.

[48] Weatherell, above n. 1, 13 – 28.

[49] Australian Government, Online Copyright Infringement Discussion Paper July 2014.

[50] Brandis, above n. 26.

[51] As Time CEO Richard Parsons once stated: “If we fail to protect and preserve our intellectual property system, the culture will atrophy... Artists will have no incentive to create. Worst-case scenario: The country will end up in some sort of Cultural Dark Ages”. Quoted in Litman, J Digital Copyright: Protecting Intellectual Property Rights on the Internet (Amherst: Prometheus, 2001) at 151.

[52] Construction of this argument and its significance in copyright debate is considered in detail by Patry in Moral Panics and the Copyright Wars (Oxford University Press, 1st ed, 2009).

[53] Patry, W, above n. 4, Chapter 2.

[54] Patry, above n. 4, at 211.

[55] ALRC, above n. 15 at 93.

[56] As Burrell et al summarise: “Demanding the identification of particular uses that are impeded by copyright law, in a context where copyright confers broad, technology-neutral exclusive rights, assumes a default of copyright owner control over any and every use of copyright material. This is based on the neoclassical, law-and-economics account of copyright which assumes that copyright should be as “perfect” a property right as possible so as to enable the full operation of a market for copyright works. On a pure neoclassical approach, exceptions are justified only in the case of “market failure” .... [o]n this view, exceptions should play a limited, secondary, and diminishing role in copyright”, above n. 9 at 4.

[57] As Boyle states: “[T]he “original author” vision downplays the importance of fair use and thus encourages an absolutist rather than a functional idea of intellectual property” above n. 36 at 106.

[58] Brandis, above n. 26.

[59] Further to this point the statement by Minister Turnbull for content owners to sue individual consumers for infringement is indicative of an individualised, author-friendly policy platform <http://www.smh.com.au/digital-life/digital-life-news/sue-mum-and-dad-pirates-malcolm-turnbull-tells-film-studios-20140801-zzbnj.html> (August 2014).

[60] Google, in ALRC Submission 217 at 7 -11.

[61] Originality in a legal sense is in fact a relatively low threshold in terms of novelty see for example: Sands & McDougall Pty Ltd v Robinson [1917] HCA 14; (1917) 23 CLR 49.

[62] Quoted in Birrell, A Seven Lectures on the Law and History of Copyright in Books, Chapter IV ‘Literary Larceny’.

[63] ALRC Final Report, above n. 15 at 93.

[64] Copyright Agency is a not-for-profit rights management organisation.

[65] See for example CAG Schools ALRC Submission 707.

[66] See for example the author surveys in the Copyright Agency ALRC Submission 727.

[67] Kimberlee Weatherall ‘Of copyright bureaucracies and incoherence stepping back from Australia’s recent copyright reforms’ [2007] MelbULawRw 37; [2007], 31, Melbourne University Law Review 967, 986-987.

[68] Brandis, above n. 26.

[69] As Patry notesThe language “limitations and exceptions” is consciously employed to make an entirely political, rather than a descriptive, point. That point is that copyright owners are good and those who use copyrighted works without permission are bad. We see this in a recent statement by an intergovernmental figure that “limitations and exceptions” are part of a “negative” agenda”, above n. 4 at 228. This language may also be contrasted with the user-rights approach taken in the current Israeli Copyright Act.

[70] Bowrey, K ‘Can a Public-minded copyright deliver a more democratic internet’ 56 University of New Brunswick Law Journal 26, 30.

[71] ALRC Final Report, above n. 15, at 108.

[72] See for example Choice ALRC Submission 745.

[73] Along these lines Francis Gurry has stated: “Now, in the early 21st century, new wealth is being created, in new ways and on a rather massive scale, by intellectual capital and virtualization .... [We are seeing] the contours of the new ideological battle lines that will shape our world for the foreseeable future.”Gurry ‘Re-Thinking the Role of IP’ (Speech delivered at Melbourne Law School, August 2013) <http://www.wipo.int/export/sites/www/about-wipo/en/dgo/speeches/pdf/dg_speech_melbourne_2013pdf> .

[74] A similar recommendation is made by Sainsbury, M above n. 8 at 3.


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