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«Principal Editor Professor Brian Fitzgerald Head of School of Law, Queensland University of Technology, Australia With the assistance of Jessica ...»

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I am very pleased to welcome Professor Lawrence Lessig to speak to us tonight on the subject Does Copyright Have Limits: Eldred v Ashcroft and its Aftermath?

As I am sure most of you know Professor Lessig is now a professor at Stanford Law School and founder of the School’s Centre for Internet and Society. Previously he was the Berkman Professor at Harvard Law School.

My American friends tell me that Stanford is now the best American university for intellectual property law. Perhaps there is some connection.

Before his academic career Larry Lessig clerked for Justice Scalia of the US Supreme Court and Justice Posner of the US Federal Court’s 7th Circuit Court of Appeals. Judge Posner is a leading judge, scholar and theorist who has written much about economics and the law. Appropriately Professor Lessig has degrees in economics, management, philosophy and law from several of the world’s best universities, the Wharton School of Business at the University of Pennsylvania, Trinity College, Cambridge (the original Cambridge), and Yale Law School. He is the author of several influential books, including The Future of Ideas: The Fate of the Commons in a Connected World, 5 and Code and Other Laws of Cyberspace, 6 and numerous articles. He writes not just for lawyers but for intelligent members of the public and has a talent for making the complex lucid.

His interests lie in ideas and their future in a wired world. His work as a legal scholar concentrates on constitutional law, contracts, comparative constitutional law and the law of cyberspace. His rapid rise to fame comes from the force and timeliness of his ideas and the skill and energy with which he propounds them. His book, The Future of Ideas 7, should be required reading for anybody with a serious interest in the proper and free dissemination of ideas and information and the structure of the Internet as affecting those issues.

(2001) Random House, New York.

(1999) Basic Books, New York.

(2001) Random House, New York.

His arguments are well illustrated. The freedom he espouses is that of free speech, not free beer. Resources are ‘free’ he argues if they can be used without the permission of others or the permission one needs is granted neutrally. In that context he argues that the question for our generation will be not whether the market or the state should control a resource but whether that resource should remain ‘free’.

Three organizations with which he is associated, the Creative Commons Project which he chairs, the Electronic Frontier Foundation and the Centre for the Public Domain, are leaders in the attempt to diminish the extent of the monopolies created by intellectual property law. But he is not opposed to private property or the need to reward the creative. To paraphrase him in a recent response to Bill Gates of Microsoft, he is not a creative communist but a creative ‘commonist’. His concern is that the monopolisation of intellectual property has gone too far and that it is infringing on our ability to draw on what most of us see as the commonly owned resources of society in the formation and expression of ideas.

What does he mean by the ‘commons’? Let me use my own analogy with a local flavour, particularly appropriate in the middle of a hot Queensland summer and dear to the heart of Professor Brian Fitzgerald, the organiser of this conference. Australian beaches are publicly owned and freely accessible to all. How different would our coastal society be if that resource were locked up in private hands, only accessible to the proprietors of the land bordering our oceans or to those whom they licensed? It is not an idle comparison. Many European countries and American States do just that – lock up much of what we perceive as a free, public resource.

When the decision is made to place such a resource in private rather than public hands the consequences are difficult to reverse. Those who have lived in Brisbane as long as I have will recognise how public access to our river banks has slowly increased over the last few decades and how much the city has benefited. The river’s development as a public resource has required imagination and significant expense because its banks were traditionally held in private hands. The floating walkway at New Farm is one example both of the imagination and the expense. It shows why it is important to make the correct decisions now needed to keep ‘free’ access to the still relatively new resource created by the Internet.

Professor Lessig first attracted broad public attention when he was engaged as an expert to assist Judge Thomas Penfield Jackson of the US Federal Court with the monopolization issues in what has been described as “the mother of all tech litigation: Department of Justice v Microsoft 8 in 1997.

His contribution will deal with the decision in the US Supreme Court, Eldred v Ashcroft, 9 where he was one of the counsel who unsuccessfully argued that the US Congress’ Sonny Bono Copyright Extension Act 1998, extending the copyright period for most existing works to 95 years after the author’s death and for new works to 70 years, was unconstitutional. For his efforts he was named one of Scientific American's ‘Top 50 Visionaries’, for arguing “against interpretations of copyright that could stifle innovation and discourse online”.

The constitutional arguments were that the Act infringed the free speech guarantee in the first amendment and the copyright clause. The copyright clause gives Congress the power to promote the progress of science by securing to authors for limited times the exclusive right to their writings.

When I first read of the impending case about two and a half years ago the argument that interested me was that the retrospective extension of copyright was not for a ‘limited time’ when added to the earlier statutory limitation and understood in the context of the power’s focus on the progress of science.

The argument did not succeed but, if we had a similar provision in our Constitution, it may have had a rather better run in our High Court. It is not as deferential to Parliament as the US Supreme Court is to Congress in respect of what we would think of as jurisdictional facts. I suspect we have not heard the last of the argument, given the demanding appetites of American copyright holders and the powerful dissenting judgments. With the Free Trade Agreement between Australia and the USA the issue will remain important for us as well.

Congratulations to QUT, Professor Peter Coaldrake its Vice-Chancellor, and Professor Brian Fitzgerald, the Head of the Law School, for organising this conference and for securing such an outstanding speaker as Professor Lawrence Lessig. The Chief Justice, Paul de Jersey, is on leave but it was with his encouragement and cooperation that the Court’s facilities have been made available. I would like to thank him also.

It is appropriate that the Court provide its facilities to allow the public free access to this speech and we embrace the chance to be associated with QUT in advancing the progress of science.

87 F. Supp. 2d 30 (D.D.C. 2000).

537 U.S. 186 (2003).

Does Copyright Have Limits? Eldred v Ashcroft and its Aftermath


The last time I had the chance to stand in a Supreme Court and asked, “does copyright have limits?”, I was standing on that side of the Bench and several of the Justices got the answer wrong. I am very eager to be standing on this side of the Bench and asking the very same question, and even more encouraged to learn that in Australia the question may get a serious answer.

Let me put this in context. Copyright law begins in the Anglo-American tradition in 1662. The Licensing Act of 1662 established monopolies for publishers in England in cooperation with the Crown, to guarantee that those who had the power to speak would use the press in a way that either benefited the Crown’s political interest or the publisher’s monetary interests. That statute expired in 1695 and what followed from the perspective of the publishers was chaos.

From the perspective of the public, what followed was freedom. There were no protected monopolies for publishing; there increasingly became competition in publishing and that competition was scary to these publishers so they increasingly lobbied in a frenetic way to re-establish monopoly controls. They were the inspiration for a scene from Wizard of Oz and by 1709 they had succeeded. In 1709, Parliament passed a statute to re-establish monopoly power in the context of copyrights. That was the Statute of Anne.

This Statute was originally proposed to establish monopoly for copyright for an unlimited term. It was to be perpetual copyright. But in the course of its passage through the Parliament the proceeding was amended in a way that terrified the publishers because the amendment stated that copyrights would extend for fourteen years for new works (renewable), and for existing works twenty-one years. The critical question for us, hundreds of years after this decision was made, is why would they limit copyrights?

What was the purpose? From my perspective, our first intuition would be the idea of free speech; that it was important to limit copyright to promote speech. In fact, free speech had absolutely nothing to do with the ideas of limiting copyright terms.

The core motivating idea was the restriction of monopoly. The English, of course, had learned to hate monopolies; they had essentially fought a war over Crown granted monopolies. As the United States Supreme Court decided in one of its really good intellectual property decisions, the Statute of Anne was written against the backdrop of practices – eventually curtailed by the Statute of Monopolies – of the Crown in granting monopolies to Court favourites in goods or businesses which had long before been enjoyed by the public. For example, the printing of the Bible was a monopoly granted by the Crown. Writs of Courts of Common Pleas were a monopoly controlled by and rented by the Crown. Clay pipes were granted monopoly control, gold and silver thread and most famously, of course, playing cards. This tradition of granting monopolies over stuff that already existed created the ire in the British people that led to a revolution against these monopolies. These monopolies for existing things were the product of endless lobbying by those who produced those existing things, lobbying to protect their monopoly.

The key insight that economics has given us, about the dynamic that this public choice problem presents, is that the monopolist will be willing to stand the net present value of his monopoly to protect his monopoly against loss from the government no longer supporting it. To protect monopolies they will invest as much money as they expect to guarantee a continued control over that resource. The 1656 Parliament ended it with respect to ordinary products in the Statute of Monopolies. You could grant monopolies under this Statute only for new works in the sense of a patent as our current law gives. Because the British knew the corruption of permitting monopolies to be granted for existing works, they regulated around it. They forbade it in the context of real goods. The Statue of Monopolies excepted from its control publishers and in 1709 Parliament removed that exemption. Publishers were included within the scope of regulated Acts to ensure monopoly powers would not be too great.

There are many publishers today who have inspired the love of the public.

We do not have a clear sense of who the publishers were for the British at this time. We should remember that publishers at this time were hated.

John Milton describes them this way, “Publishers are all patentees and monopolisers and the trade of book selling... men who do not labour in an honest profession, to learning is indebted”. 10 These were a class of Phillip Wittenberg, The Protection and Marketing of Literary Property (1937) 31 cited in Lawrence Lessig, Free Culture (2005) E-prints in Library and Information monopolists, particularly hated at the time. The London Monopoly is referred to as the Conger which worked to keep prices to British culture high and to restrict access to new works. The Statute of Monopolies in 1709 granted them a twenty-one year monopoly over existing works as a way to buy them off. The idea was that for twenty-one more years their existing monopolies would continue, but in twenty-one years those monopolies would end. What we all expected, of course, was that in twenty-one years they would come back to fight again to extend their monopolies. When these initial monopolies did expire, the publishers did return to try to extend them.

In 1735 and 1737 they proposed extensions of existing terms. Parliament

rebuffed these extensions. Here is one pamphlet response:

I see no Reason for granting a further Term now, which will not hold as well for granting it again and again as often as the Old ones Expire so that should this Bill pass, it will in Effect be establishing a perpetual Monopoly, a Thing deservedly odious in the Eye of the Law; it will be a great Cramp to Trade, a Discouragement to Learning, no Benefit to the Authors, but a general Tax on the Publick; and all this only to increase the private Gain of the Booksellers. 11 These extensions were rejected. In fact three times they were rejected, leaving the publishers to turn to the next forum for extending their monopoly power – the Courts.

In the Courts it would not be possible for the publishers to plead for their own interests, hated as they were. Instead they pleaded for the interests of the authors. It was the author’s rights the publisher was trying to promote.

These rights, they said, were natural and as natural rights they were protected by Common Law. Furthermore they should be perpetual. The publishers’ concern for authors is an interesting type of concern. Lyman Ray Patterson described it as, “the publishers had as much concern for authors as cattle ranchers have for cattle”. 12 They were using the authors to advance their interests.

Science http://eprints.rclis.org/archive/00002988/01/freecult.pdf at 28 August 2006 (hereinafter Lawrence Lessig, Free Culture).

Lawrence Lessig, Free Culture.

Lyman Ray Patterson, ‘Free Speech, Copyright and Fair Use’ (1987) Vanderbilt Law Review 40, 28, cited in Lawrence Lessig, Free Culture.

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