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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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On 17 January 2005, the Australian ran a story about Sir Cliff Richard, the most successful singles’ artist in British history who launched a campaign to complain about copyright. His fifty year-old recordings are about to enter the public domain, and to cost the record companies a great deal of money – close to $1 billion estimated by this article appearing in the Australian. They claim that it is unfair, fundamentally unfair, that these copyrights expire. Why is it unfair? Because when his songs were recorded Sir Cliff Richard was promised fifty years of protection. He got it – 50 years of protection. His response is, yes, but the United States gives us 95 years of protection. But when he recorded his material, the United States gave him 56 years of protection. It then dollopped on another forty-some years to 95 years of protection. What does this unfairness boil down to?

The unfairness is: it is unfair for you not to pay us twice, when the United States has paid us twice for the work which we have copyrighted.

It is not surprising that particular famous artists would be keen to extend the copyright term. We can predict that will always happen. We can predict that if any of us were as lucky as Sir Cliff Richard was to be successful in this world, we would be arguing to extend the term of our copyrights. What is surprising, is not Sir Cliff Richard, but that the other side of this debate is essentially invisible.

The US Free Trade Agreement Implementation Act 2004 (Cth) which was passed recently (increasing the term of existing works) is probably thought of as a piracy of the public domain. Yet it too did not produce politically – as opposed to some particular activists – even a whimper. Not even to consider the modest suggestion that a means was adopted to separate out those works that need the benefit of an extended term, like Sir Cliff Richard, from those works that do not need any benefit from an extended term because they are commercially unavailable and just locked up under the existing copyright regime. Not even that idea was considered, and that is a reflection of how blind we, as cultures, have become to the balance which defines this debate. We need to recognise that because of this extraordinary explosion in technology we are at a critical time and have the opportunity to realise the potential innovation of this network, so long as this extraordinary and potential innovation is not zapped by monopolies.

Copyright, designed to benefit authors, if allowed to become too powerful becomes the tool of monopolies, and again we ask the question, “Does copyright have limits?” It does have limits. These limits are for us, forgotten. The powerful have used their power to buy the power to silence those who would question this explosion in power. And we stand silent.

We have restored the Conger, precisely the entity we originally in our tradition designed copyright to dissolve; indeed worse than the Conger, for the power exercised is greater by the monopolists. Never in our history have fewer exercised more power over our culture than now. Nobody noticed this happening; nobody acts effectively to stop it. Yet the question which opens this lecture is an invitation for us to remember how we as a culture discovered those limits and how we could recreate them again.

Conference Keynote The Vision for the Creative Commons: What are we and where are we headed? Free Culture



Welcome [as delivered at the conference] The Hon Justice Ron Sackville, Professor Lawrence Lessig, ladies and gentlemen; on behalf of the Faculty of Law and the Faculty of Creative Industries, it is my very great pleasure to welcome you here today.

In a lot of ways it is said that the working year does not really start until Australia Day. I do thank you for coming to join us in January and it is obviously the first major event which the two faculties – Law and Creative Industries – are involved in this year. And it is a very important event.

We have brought together an exciting range of speakers and we will be hearing today from representatives from the judiciary, government, industry and of course, from academia, to expand our understanding and debate about the concept about Creative Commons. And it is an important debate. It is really very much at the cutting edge of what the 21st century is about: the capacity to take information, content, material which may be copyrighted, and get that material disseminated through a means which has minimum transaction impediments, which benefits not only the copyright owner, but the broader community and particularly the creative process. Over the next two days you are in for quite a treat. Our first speaker this morning is The Hon Justice Ron Sackville from the Federal Court.

Ron Sackville’s career is in three parts. He started as an academic at the University of NSW, a Professor of Law and for a period of time Dean of the Law Faculty. In 1985 Ron went to the private Bar in NSW, where he remained until appointed to the Federal Court in 1994. Probably Ron is best known for those periods prior to his appointment to the Federal Court: for his work in a number major Australian Enquiries and Commissions.

Between 1973 and 1975 he was Commissioner for Law & Poverty in the Australian Government’s Commission of Enquiry into Poverty. In the late 1970s he assisted the South Australian Government in a Royal Commission into the non-medical use of drugs.

It was my good fortune in 1994 to work closely with Ron when he undertook a major enquiry for the Commonwealth Government into the issue of access to justice. It is from that particular work, which lead to a blue-print for the reform of the Australian Civil Justice System and various elements of it, that much of the ongoing reform that we see even now, a decade later, can be traced.

During his period as a Federal Court Judge, Ron has maintained an extremely active role, not only as a Judge but also in broader public debate. In particular, in various areas of law reform. Obviously it is in the issue of intellectual property and the underlying issue of Creative Commons which we now invite Ron Sackville to address you. Please join with me in welcoming The Hon Justice Ronald Sackville.

Professor The Hon Michael Lavarch (Dean, QUT Faculty of Law) The Vision for the Creative Commons: What are we and where are we headed? Free Culture This was the second visit by Professor Lawrence Lessig that I hosted. In 1999 he came to Australia to teach in the Byron Bay Summer School at a time when I was Head of the School of Law and Justice Studies at Southern Cross University. In those days he was less of a superstar; he was on his way up. Today he is very well-known internationally, very much at the leading edge of Creative Commons, law and technology, and law and the digital environment.

Professor Lessig has taken his degrees from the University of Pennsylvania, Yale Law School, and also Cambridge University in the UK. He has been for many people, including myself, an inspiration. Larry is very much a poet for the generation that has had to come to grips with the whole idea of the digital environment. His books, Code and Other Laws of Cyber Space, The Future of Ideas and Free Culture have certainly stimulated discussion throughout the world.

In this presentation Professor Lessig outlines his vision for a remix culture and his thoughts on the future of the Creative Commons Movement.

–  –  –

Michael Lavarch, Brian Fitzgerald, Professor Lessig, ladies and gentlemen, it is a great delight to be introduced by Michael, who made the serious mistake of appointing me to the Federal Court during his time as Attorney General of the Commonwealth. My own career, such as it is, is a bit odd as far as the order of events is concerned, but Michael’s is even weirder. He is the only person I know who has used the position as the First Law Officer of the Commonwealth as work experience for a real job, that is, being Dean of the Faculty of Law. If you think the Caucus is difficult, wait until you deal with a group of legal academics.

A conference on cultivating the Creative Commons, particularly one that I understand is sponsored by the modestly, if not tautologically, named Creative Industries Faculty, is not a place where you would expect to find old-fashioned people. But for those of us who are old-fashioned, like Richard Neville and myself, even Luddite, there is a special benefit in the opportunity to engage in face to face discussions on the proper role of, and boundaries to, intellectual property rights. In particular, notwithstanding the virtues of blogging, which my associates have attempted unsuccessfully to explain to me, the presence of Professor Lessig gives us all an opportunity to put a real, as opposed to a virtual, face on someone whose work on the Creative Commons and the future of ideas has been enormously influential.

As I am sure Professor Lessig knows, there is a long history of fruitful interchange between Australian and the United States’ legal academics, even if the traffic has tended to be rather heavily in one direction. There are many Australians who have taught and studied at great Law Schools like Yale, Harvard, Stanford and Chicago, all of which Professor Lessig has been associated with at some stage. Given that I am a graduate of one of those institutions, the order in which I mentioned them is not entirely random. While academic exchange is nearly always mutually beneficial, this has not always been the experience of interaction between the leadership of our two countries, even though we seem to be in a phase of extended mutual admiration.

In 1919, the then Australian Prime Minister, Billy Hughes, was making a nuisance of himself at the Versailles Peace Conference. To the intense aggravation of Woodrow Wilson, Hughes insisted on ever more punitive sanctions against a defeated Germany. Hughes’ strident views prompted President Wilson to describe him as a ‘pestiferous varmint’ and I do not think he meant the phrase as a compliment. Having read a number of Professor Lessig’s works, I suspect that there might be quite a few holders of copyright who would regard him as a ‘pestiferous varmint’, but I am sure that they would use that phrase in the nicest possible way.

For better or for worse, I bring to this area of discourse the perspective of a judge who is occasionally, and more or less randomly, exposed to the complexities and challenges of intellectual property law. Even from this limited and sporadic perspective, it is impossible to avoid being struck by how rapidly, to use the words of Peter Drahos and John Braithwaite in their book, Information Feudalism 20, there has been a transfer of knowledge assets from the intellectual commons into private interest, private hands.

This point, of course, was driven home recently, and forcefully, in Australia, by the debate concerning ratification of the Australia-United States Free Trade Agreement (FTA).

For a brief time patent and copyright law was actually at the forefront of public debate in this country. Intellectual property lawyers, or at least a smattering of them, enjoyed a fleeting moment of public exposure, if not fame. The word ‘evergreening’ temporarily entered the Australian vernacular as commentators debated the extent to which the holders of drug patents used dubious claims to extend their monopoly at the expense of generic drug manufacturers and, ultimately, the public. One of the most fascinating sections of Professor Lessig’s recent book, which is catchily entitled Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity 21 (I have known some published articles as long as that) is his account in Chapter 13 of Eldred v Ashcroft 22, in which he acted as Counsel for Mr Eldred. Despite Professor Lessig’s best efforts, for which he modestly offers a mea culpa – and I must discuss with Professor Lessig how far counsel’s arguments really do influence judges when they decide cases – the Supreme Court of the United States upheld the validity of the so-called Sonny Bono Copyright Extension Act. 23 This Act retrospectively extended the term of copyright by twenty years in the usual case to a period of the life of the author plus seventy years.

Peter Drahos and John Braithwaite, Information Feudalism, (2003) W. W. Norton & Company Lawrence Lessig, Free Culture.

Eldred v. Ashcroft, 537 U.S. 186 (2003) Copyright Term Extension Act 1998 It is no coincidence that the FTA obliges Australia to enact precisely equivalent legislation. The Commonwealth has now done so in the implementing legislation. The US Free Trade Agreement Implementation Act 2004 (Cth) has amended s33 of the Copyright Act 1968 (Cth) to provide for a non-retrospective extension of copyright in exactly the terms upheld by the Supreme Court. Despite the Supreme Court’s ruling, and the willingness of Australian negotiators to accept the position of the United States, it is extremely difficult to understand the policy justification for a further extension for the term of copyright, let alone the application of the extension to existing copyright.

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