Collisions in the Digital Paradigm:Information Rights and Copy Rights Australian Digital Alliance Forum Canberra 1 March 2013
The Argument• Paradigmatic change challenges our assumptions about and expectations of information.
• The digital paradigm is so revolutionary that it undermines some of the values and assumptions that underlie traditional copyright thinking.
• We need a new model for copyright that reflects the new paradigm
= Contentious• Content owners - don’t think they have enough protection• Consumers - think that content owners have too much protection.
A truth about copyright• Copyright is the child of the printing press
Myths About Copyright• That it is a property right• No – it is about control of technology• That it originated as part of the Stationers Company licensing regime• No – for the following reasons
The Stationers Company • Were originally a craft Guild involved in making and selling books • Interested in protecting their craft for the benefit of members • Exclude from the pursuit of the craft those who were not
Incorporation 1557• Enhanced control of the industry.• By licensing printing of books to members of the Company.• Powers of search and seizure ensured that non-members could be controlled.• Nothing to do with copyright.• Everything to do with protecting a monopoly on a new technology
Patents • Issued authorising exclusive rights to print certain titles • Were often infringed • Granted as part of the Royal prerogative • Enforced in the prerogative Court of Star Chamber
Star Chamber Decrees 1587 and 1634• Nothing to do with author’s rights• Everything to do with the protection of the publisher• Decrees were not about censorship (the received wisdom)• But about industry control and limiting participation in the industry
An early view of “copyright”• Much material was still in manuscript• Printing was seen as an answer to those “ungentle hoarders up of such treasure”• Publication was beneficial to “the studious of English eloquence” Richard Totell. “To the Reader” Songes and sonettes, written by the Right Honorable Lorde Henry Howard late Earl of Surrey, and others akaTottel’s Miscellany 1557• Printing was associated with generosity - the act of sharing what was hoarded
The Restoration• The Licensing Act 1662• Focus upon both censorship and industry control• Stationers in charge of enforcement• 1694 – Licensing Act lapsed• 15 years of “press freedom” until the Statute of Anne
The Statute of Anne• Controlled printed works• Said nothing about manuscript works• Manuscripts – had to be copied to circulate• Statute reflects – a recognition of the values of two cultures and – the qualities of the printing press that differentiated it from the manuscript culture
• So the copyright statute was about control of a technology.• And that is what copyright has been about ever since.
The Interests of the Publishers• Miller v Taylor – extend the reach of copyright• Donaldson v Beckett – the Statute rules• Were there any author plaintiffs present?
Technological Changes• Photocopier• Digital technologies• Shifted the power balance from monolithic publishing organisations to individuals• Copyright owners response – shut down or control the technology – just as the Stationers did.
The Answer to the Machine..• Technology contains the answer• The development of para-copyright• Copyright by contract• Miller v Taylor realised
First we shape our tools...• And then our tools shape us• Information expectations• Digital Natives have a different world view• Witness the rise of social media
• Digital Natives find copyright law interferes with their global view• Regionalisation of content obstructs “information now”
Ignoring the global market• Digital natives find it difficult to understand why it is that they may be willing to pay for a product that copyright owners won’t let them purchase or access.• I can’t subscribe to Hulu because I live in the wrong part of the world.• I can’t download content because I live in the wrong part of the world.• Yet the internet and the globalisation of content and e-commerce have made the commercial world a world without boundaries.
The Solution• Digital Natives are prepared to pay• The copyright owner won’t take the money• So let’s file share........• Digital Natives are like Jim Morrison
Technologies Change Us • Media work on two levels
First Level• A medium is a technology that enables communication and the tools that we have to access media content are the associated delivery technologies.
Second Level• A medium has an associated set of protocols or social and cultural practices including the values associated with information - that have grown up around the technology.
• Delivery systems are just machines but the second level generates and dictates behaviour.
• When we go beneath the delivery system and look at the qualities or the properties of a new information technology, we are considering what shapes and forms the basis for the changes in behaviour and in social and cultural practices.
• The qualities of a paradigmatically different information technology fundamentally change the way that we approach and deal with information.
Does a system of rules based upon and derived from the print paradigm have any relevance in the digital paradigm?
• The law loses credibility if it does not accord with the underlying values of a community – the consent of the governed.• To maintain a system of rules that run counter to community values is oppression.
Let’s Forget the Technology• Find another principled basis for copyright protection.• Copyright and expression are inextricably entwined
Balance Interests Based on Expression• Article 19 – International Covenant on Civil and Political Rights• Protects the right to receive and impart information• Explicitly protects the media of expression and information and was intended to include after a rising technologies.
Developing a Rights Based Approach • Frank La Rue – whether or not internet access is a human right qualifying for protection under Article 19 • A German court ruled that people have the right to claim compensation from service providers if their Internet access is disrupted, because the Internet is an "essential" part of life. • Ashby Donald v France - a conviction based on copyright law for illegally reproducing or publicly communicating copyright protected material can be regarded as an interference with the right of freedom of expression and information under Article 10 of the European Convention.
How It Might Look• 1. Copyright should not be seen as a property tight – either actual or inchoate• 2. A copyright owner’s rights should not be absolute
• 3. Copyright should be seen as an exception to the wider rights of freedom to receive and impart information guaranteed by Art. 19 ICCPR – given copyright does not accrue until expression (according to current copyright theory) it must be subject to the supremacy of Art 19.• 4. Interference with Art 19 rights requires justification by the copyright owner.
• 5. Once interference with the Art 19 right is justified, any restrictions to the general right and any advantages that accrue for the benefit of the copyright owner may be permitted to the extent that they are: – a) necessary to meet the copyright owners interests and justification – b) proportionate in terms of the extent of the interference• 6. Concepts such as fair use, protection term, remedies (and their extent) fall within the tests of necessity and proportionality rather than exceptions to a copyright owner’s right.
Examples• Access controls that have no copying implications would not be justifiable as an interference.• Copying that is necessary for a technology to operate could not be considered justifiable as an interference.• Format shifting (of any medium) could not be justified as an interference in that a royalty had been paid at point of sale where the item has been legitimately acquired.
• This new framework may be considered against a backdrop of the right to receive and impart information and a truly balanced approach to information and expression that recognises that ideas expressed are building blocks for new ideas.
• Underpinning this must be a recognition on the part of content owners that the properties of new technologies dictate our responses, our behaviours, our values and our ways of thinking.
• These should not be seen as a threat but an opportunity.• Copyright cannot be a one-way street with traffic heading only in the direction dictated by content owners.