1. Collisions in the Digital Paradigm:Information Rights and
Copy Rights Australian Digital Alliance Forum Canberra 1 March
2013
2. The Argument Paradigmatic change challenges our assumptions
about and expectations of information.
3. The digital paradigm is so revolutionary that it undermines
some of the values and assumptions that underlie traditional
copyright thinking.
4. We need a new model for copyright that reflects the new
paradigm
5. = Contentious Content owners - dont think they have enough
protection Consumers - think that content owners have too much
protection.
6. A truth about copyright Copyright is the child of the
printing press
7. 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
8. 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
9. 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
10. 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
11. Star Chamber Decrees 1587 and 1634 Nothing to do with
authors 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
12. 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 akaTottels Miscellany 1557 Printing
was associated with generosity - the act of sharing what was
hoarded
13. 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
14. 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
15. So the copyright statute was about control of a technology.
And that is what copyright has been about ever since.
16. 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?
17. 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.
18. The Answer to the Machine.. Technology contains the answer
The development of para-copyright Copyright by contract Miller v
Taylor realised
19. 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
20. Digital Natives find copyright law interferes with their
global view Regionalisation of content obstructs information
now
21. 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 wont let them purchase or
access. I cant subscribe to Hulu because I live in the wrong part
of the world. I cant 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.
22. The Solution Digital Natives are prepared to pay The
copyright owner wont take the money So lets file share........
Digital Natives are like Jim Morrison
23. We want the world andwe want it NOW
24. Technologies Change Us Media work on two levels
25. 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.
26. 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.
27. Delivery systems are just machines but the second level
generates and dictates behaviour.
28. 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.
29. The qualities of a paradigmatically different information
technology fundamentally change the way that we approach and deal
with information.
30. Hence The medium is the message
31. Qualities of Digital Technologies Persistence, Continuing
change or the disruptive element, Dynamic information Dissociative
enablement, Permissionless innovation, Availability, Participation
Searchability Retrievability.
32. The Fate of Copyright
33. Does a system of rules based upon and derived from the
print paradigm have any relevance in the digital paradigm?
34. 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.
35. Lets Forget the Technology Find another principled basis
for copyright protection. Copyright and expression are inextricably
entwined
36. 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.
37. 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.
38. How It Might Look 1. Copyright should not be seen as a
property tight either actual or inchoate 2. A copyright owners
rights should not be absolute
39. 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.
40. 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 owners
right.
41. 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.
42. 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.
43. 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.
44. 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.