Friday, June 26, 2009

Ben Atkinson's True History of Copyright in Australia

There aren't too many 500 page tomes on intricate matters of law that a reader would find, let's say, interesting!

There are even less that a reader would find utterly absorbing and invigorating!

Well, Sydney-based copyright scholar Ben Atkinson has written one of the best - a powerful story of how Australia ended up with its current copyright regime, a regime that Atkinson considers oppressive, burdensome, unfair, and nothing but a reflection of Australia's shameful cowering to, initially, British imperialism, and latterly, US corporate power.

Atkinson is a radical, and there is much in the book that many lawyers and content industry practitioners will find distasteful and undoubtedly naive. But his narrative is compelling and he builds a persuasive case. Every bit of detail, no matter how slight, helps build the riveting story, a story of politicians, economists, writers, name it, from big to small.

I was reminded of the aphorism that one should remain unaware of the intricacies of law making, as one should remain ignorant of the process of sausage making. Yet it's a remarkable and fascinating story.

Among Atkinson's many criticisms of the Australian copyright tradition are two that are central:

1. The prohibition on direct importation by retailers is simply a carry-over from British law originally aimed at Irish pirates, and it is antithetical to Australian interests - always was and still is today.

2. The bans on free use of parts of works for non-commercial purposes (as in our educational institutions) are a massive over-reaching by global, principally US, corporate interests, and should never have been acceded to by weak Australian politicians. CAL gets a real pasting.

Here are some samples:

'The case is significant for another reason. The reactions it provoked typified the strain of histrionic self-justification that infected the discourse of copyright proponents from the first days of publishers demanding perpetual rights. Stripped of surface glitter, the discourse often reveals something ugly: covetousness and presumption masquerading as moral right'. (p.343)

'By 2005, obtuseness and the politics of economic power determined Australian copyright policy. Policymakers, learnedly explaining the obligations of international law, obediently agreed - in the interests of the nation - to Australia's status as a tributary of the American hegemony. The greatest irony is that 100 years earlier, Australian politicians attacked with great vehemence the copyright policy of the United States, and even proposed legislation to strike at American publishers.' (p.406)

I certainly don't agree with Atkinson on all matters, but this book is a lively treatise, full of juicy bits and pieces, heroes and villains, and lots of commonsense and wisdom. The scholarship is simply inspiring. Just the fact that Atkinson exists, and belongs to a growing tradition in copyright studies in Australia (mainly based at QUT) is cause enough for celebration. The vast majority of copyright lawyers and thinkers in this country are only concerned with the mechanics, not the underlying business and economic realities. It's as if they know the scaffolding inside out, but remain ignorant of the building underneath, the whole point of it.

If you're at all interested in copyright, buy this book!

Friday, June 5, 2009

The Question of Literary Property

It was good to see Lynne Spender's article in the current issue of Meanjin on the touchy subject of copyright and whether the law is long overdue for some serious reform.

Spender (along with her illustrious and better known sister Dale) has been at the forefront of critical thinking in this field for many years. She is a lawyer and former director of the Australian Society of Authors, and has just completed a PhD on 'Digital Culture and the Challenge to Copyright Law'.

The contentious views expressed by Spender in her article are certainly not novel. Many copyright scholars have been arguing these points for years, particularly in the US. People like Lawrence Lessig, Siva Vaidhynathan, David Bollier and James Boyle have paved the way. Their positions are sound and, in my view, persuasive. (I list their major books below).

In Australia however, such views are unfamiliar, radical and seemingly treacherous. The well known children's author, Morris Gleitzman, has already signalled his decided lack of enthusiasm for them, and he intends to reply to Spender in Meanjin's next issue.

Spender argues for a substantial reduction in the period of copyright protection - from the current 70 years after the death of the author, to 18 years from first publication. This reflects the views of Australian copyright scholar Benedict Atkinson, who 'poses the idea that a copyright work is to a creator as a child is to a parent, and that at eighteen years of age each should be legally free from its creator's control'. Gleitzman responds, quite off point, that 'when an eighteen-year-old leaves home it is surrounded by legal and social convention protections so that not anybody can do anything with that individual that they chose. Those social and legal protections are the exact equivalent of the social and legal protections that our creative work has, and it's called copyright'.

Whether it be 18 years from creation, 28 years renewable (as favored by Boyle), or something in between, one thing is for certain: the current 70 years from death is too long. It is not sound public policy. It privatises access to creative works for a greatly extended and unproductive time, to society's detriment. It impedes further creativity, sharing and public enjoyment by bogging everything down in the permissions culture for way too long.

Spender was also enthusiastic about Google's book digitisation project, in its original conception, where Google copied the totality of five major librarys' holdings without first seeking permission of copyright owners. 'Just as Gutenberg's printing press brought increased and independent access to knowledge and information 600 years ago, it seemed possible that the Google Books Library Project's searchable database of the world's books would allow access to our entire cultural heritage in digital format'.

As it has turned out this dream is not dead, but the intended access is now licensed, on a commercial basis, and Google is paying a lot of money to creators for the privilege. It will be no less comprehensive. Spender considers Google should have proceeded as it initially intended as it was allowable behaviour under the fair use provisions of US copyright law. But Google itself backed away from this, and was seemingly unwilling to test it in the case brought against it by authors and publishers. We'll never know now.

On one major issue Spender is quite wrong. She questions 'should we..still support a copyright system that allows academic publishers to charge libraries annual subscription fees of $25,000 or more for access to their journals, or should we be using the cheap reproduction and distribution capabilities of digital technology to make such scholarship freely available?'

Well, on the one hand all journal access is now digital and libraries are paying fees for all sorts of content usage, added value and flexibility; and on the other there is nothing cheap about digital technology. 'Freely available' is a rather quaint, old fashioned concept. Someone, somewhere has to pay the big bucks associated with building robust platforms with rich functionality. If it isn't publishers, then like Voltaire's god, they'd have to be invented.

Nevertheless, I applaud Spender for tackling the big issues in our local context, and hopefully challenging our provincial copyright players to expand their minds and join a vigorous, contemporary debate.

[Lawrence Lessig: Free Culture; Remix. Siva Vaidhyanathan: Copyrights and Copywrongs; The Anarchist in the Library. David Bollier: Brand Name Bullies; James Boyle: The Public Domain.]