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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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Interestingly enough, one of the dissenters in Eldred v Ashcroft was Justice Breyer. Thirty years earlier as a young law professor he had written a famous article in the Harvard Law Review arguing that the supposed noneconomic benefits of copyright did not justify the grant of monopoly rights to authors, and that the economic benefits of copyright, particularly with specific categories of published works, had been greatly over-stated. 24 In his opinion in Eldred v Ashcroft, Justice Breyer ridiculed the suggestion that a 20 year extension of copyright would act as an economic spur to authors to create new works. “What monetarily motivated Melville,” he asked alliteratively, “will not realise that he could do better for his grandchildren by putting a few dollars in an interest bearing account?” 25 In his dissenting opinion in Eldred, Justice Stevens, in words that echoed the famous speech given by Lord Macaulay in 1841 in the House of Commons, pointed out that “ex post facto extensions of copyright result in a gratuitous transfer of wealth from the public to authors, publishers and their successors and interests”. 26 The real sting in the tail of this comment is, of course, that for the most part the beneficiaries of the extension will not be authors, or even their original publishers, but commercial entities which have acquired the rights long before the statutory extension of copyright.

Another significant feature of the FTA, which has not attracted a great deal of comment, is its insistence that the parties provide for criminal penalties to be applied where a person is found to have engaged “wilfully and for the Stephen Breyer (1970). "The Uneasy Case for Copyright: A Study of Copyright in Books, Photocopies, and Computer Programs". Harvard Law Review 84 (2): 281–355.

Eldred v. Ashcroft, 537 U.S. 186 (2003) 14 Eldred v. Ashcroft, 537 U.S. 186 (2003) 6 purpose of commercial advantage” in certain conduct infringing intellectual property rights. 27 These provisions in fact reflect a fairly well-established policy of criminalising deliberate commercial conduct which infringes intellectual property rights, particularly copyright.

There is probably nothing remarkable about this policy until you look at how it has actually been implemented in Australia. The Copyright Act provides that the person who distributes an article for commercial purposes, which that person knows is an infringing copy, is guilty of an offence punishable on summary conviction by a term of imprisonment of up to five years. 28 An offence punishable on summary conviction is one that can be dealt with by a magistrate sitting alone. This means, for example, that a local court in New South Wales, acting under Federal law – and of course in Australia State courts can be invested with Federal jurisdiction – can impose a sentence of imprisonment of up to five years for a deliberate infringement of copyright. The same court, under State law, can impose a sentence of no more than two years imprisonment for any summary offence in respect of which it has jurisdiction. The most plausible explanation for these extremely unusual arrangements about which I have had occasion to comment judicially in a case called Ly v Jenkins 29, is that they are designed to accommodate the contention of copyright owners that not only severe criminal penalties but special summary procedures are needed to curtail the activities of copyright pirates. There are many commentators who have appreciated, in the words of James Boyle, an American academic, that we are in the middle of “the second enclosure movement”. 30 He sees that movement as exemplified by the recognition of patent rights in human genes.

Peter Drahos and John Braithwaite draw a parallel in their book between medieval feudalism and what they describe as ‘information feudalism’.

Under the earlier variety, a lord of the manor exercised not only private power by virtue of his ownership of land, but public power through a system of manorial taxes, courts and prisons. In the modern form of feudalism, as Drahos and Braithwaite see it, the transfer of intellectual commons has been to media conglomerates and integrated life sciences corporations, rather than to individual scientists and authors. The effect, Australia-United States Free Trade Agreement 17.11.26(a)(ii), 17.4.7(a)(ii) and 17.4.8(a)(iii) Copyright Act 1968 (Cth) s132(6AA)-(6A) as at 1 January 2005 Ly v Jenkins [2001] FCA 1640 James Boyle ‘The Second Enclosure Movement and the Construction of the Public Domain’ 66 Law & Contemp. Probs. 33 (Winter/Spring 2003) 33 they argue, is to raise levels of private monopolistic power to dangerous global heights, at a time when states, which have been weakened by the forces of globalisation, have less capacity to protect their citizens from the consequences of the exercise of this power. William Cornish, a well-known intellectual property scholar, entitled his 2002 Clarendon Law Lectures Intellectual Property: Omnipresent, Distracting, Irrelevant? 31 in order to

highlight the major dilemmas which enmesh intellectual property:

omnipresent – to capture the case where intellectual property rights appear to be “spreading like a rash”; distracting – to describe rights which serve few of their intended purposes but which cause persisting itching;

irrelevant – to refer to technology which in practice seems to render some forms of intellectual property nugatory.

Why have these developments occurred? From an Australian perspective, three major factors have combined to generate the pressures to which the Creative Commons movement is a response.

The first, obviously enough, is the power of interest groups whose economic well-being depends upon the privatisation of intellectual property resources. In general, the interest groups favouring the extension of intellectual rights are very well resourced, effectively organised and politically powerful, both at a national and an international level. Often they can enlist the support of national governments in multilateral and bilateral negotiations. The United States, in particular, has used trade negotiations to ensure, in the words of § 301 of the Trade Act 1984 “adequate and effective protection” for the intellectual property of United States corporations in other countries. Trade benefits may be (and often are) withdrawn from countries which fail to grant such protection. The United States has played a leading role in the negotiation of multilateral arrangements, such as the Trade Related Aspects of Intellectual Property Rights (TRIPS) Agreement, which have done much to advance the interests of the holders of patents, copyright and other forms of intellectual property.

I do not mean to suggest that there are never powerful interest groups opposing the expansion of intellectual property rights. The history of copyright law, for example, is replete with battles between opposing interest groups, such as music publishers and the manufacturers of tape recorders and other electronic equipment. Even so, the struggle is often unequal.

William Cornish, Intellectual Property: Omnipresent, Distracting, Irrelevant? (2006) Oxford University Press A second force for extending the boundaries of intellectual property is bilateral and multilateral international arrangements. Like the FTA, these agreements often require the parties to create new species of intellectual property or to enforce existing rights more effectively. The shape of much of Australia’s intellectual property law has been determined by international agreement. Since the Commonwealth Parliament, pursuant to the external affairs power, can legislate to implement international agreements, the effect is that there is virtually no limit on Parliament’s power to privatise intellectual resources.

Technological change is a third powerful force, since technological developments can quickly render obsolete or ineffective existing laws and enforcement mechanisms. As copyright holders, for example, realise that they cannot protect their interest by purely technological means there

emerges, in the words of Professor Cornish:

a whole set of distinct demands for higher legal fences as part of the digital agenda, which politicians press at the behest of industry lobbyists and their star writers and performers.

When the new technology and international treaty obligations coincide the pressures for the extension of intellectual property rights become almost irresistible. An illustration is s116A of the Copyright Act, a provision designed to prevent a person from making so-called ‘circumvention devices’ which are capable of circumventing ‘technological protection measures’. The origins of s116A, the construction of which was in issue in the recent case of Sony v Stevens 32 (now before the High Court) 33, lies in two World Intellectual Property Organisation treaties which address the problems for copyright owners by changing technology.

The privatisation of intellectual property resources raises issues that transcend the particular concerns of intellectual property lawyers and their clients. They go to the nature of freedom in a society which, in equal measure, creates opportunities for astonishing innovations and severe restrictions on creativity.

Kabushiki Kaisha Sony Computer Entertainment v Stevens [2002] FCA 906 Note: since this paper was presented, the High Court has handed down its decision and this matter - see Stevens v Kabushiki Kaisha Sony Computer Entertainment [2005] HCA 58 The Vision for the Creative Commons: What are We and Where are We Headed? Free Culture


It is a great pleasure to be here and especially to be greeted this morning by Justice Sackville’s extraordinary presentation, which reminds me that I spend most of my time living in the flat earth society with people who continue to insist the world is flat. To come out to a place where the obvious is obvious, especially to people with extraordinary influence and power, is a great relief. I am extremely happy to be here and share something of the vision of what Creative Commons is supposed to be about.

Here is the purpose of what my talk this morning is supposed to be: it is to place this movement in some context. I have struggled in the last couple of years to find a way to show what is really at stake here. To move the discussion beyond the really boring tired debate that seems to dominate most of the discussion about these issues, especially in the United States – whether you are in favour of intellectual property or against it. That is not the question. No one is asking that question, and until we can begin to recognise what’s at stake for our culture, we will lose this extraordinary opportunity that technology offers us. That is my objective here, and I want to begin by introducing an idea that should be familiar: the concept of remix.

The idea, first, is that you take creative work, mix it together and then other people take it and they remix it; they re-express it. In this sense, culture is remix; knowledge is remix; politics is remix. Remix in this sense is the essence of what it is to be human. Companies do it. Apple Corporation says it took its iPod and remixed it. Politicians do it. Bill Clinton took the Republican Party’s platform, remixed it, called it ‘Democrat’ and became President. Liberals do it. Here is a wonderful propaganda site that exists on the net for Liberal propaganda – ‘daddy why didn’t you or any of your friends from Enron have to go to war’?

We all do it, every day of our life. We go watch a movie by somebody, we whine to our friends about how either it is the dumbest movie we have ever seen or the most profound political insight America has produced in fifty years. Whatever, we are remixing our culture by experiencing it and reexpressing it. In our choices every day, we decide what our culture will be by deciding what we consume and what we comment about. The choice whether to watch Disney or read H.C. Anderson is a choice about what our culture will become. We are remixing by consuming and we, by consuming, are constructing every single act. Creating and recreating culture is an act produced by reading, by choosing, by criticising, by praising. This is how cultures get made.

The critical framing point about this active remixing that we have to remember in the context of this debate about free culture is: remix is free. It is free. In our tradition it has always been free, free in the sense of unregulated by the law. You need no permission to engage in this act of recreating your culture by commenting or transforming or criticising or praising. You need no permission: it is free. It needs to be free. There need to be limits on the power of entities, whether government or corporate, to control us. It needs to be free if we are to avoid infantilising our culture. It needs to be free as an expression of a basic human right: the right to engage in this act of producing who we are. It needs to be free in all the ordinary ways in which we engage in this practice of remixing our culture, the ordinary ways in which we write. This is the idea. We ‘write’ our culture by what we say or praise or criticise; this act of writing needs to be free.

What are the ordinary ways in which we remix our culture today? What is the technology of remix today? By ‘today’ I do not mean literally today for those people who are really doing the most remixing out there, namely our kids using technology. I mean ‘today’ the way most of us over the age of 35 think about culture and how it is remixed. What is the technology for us today? And the answer to this is: it is a technology grounded in texts, in words, in the act of writing, in the act of remixing texts. We see a movie;

we talk about it; we criticise it; we might write a letter to the editor criticising the free trade agreement – in fact I encourage you to do that regularly. We express these acts of remaking, using words and it’s that technology which today is free. It is the technology of text, which 400 years of culture and politics has produced as free.

We take it for granted that writing is free – not totally free; you can say things which are libellous and face consequences. Not totally free; you cannot lie about certain things. Not totally free; you cannot take my words and pretend that they are yours. But free, not in the sense of anarchy; free in the sense of the well-regulated society. Four hundred years of culture has produced a legal tradition that embraces this idea that writing is free.

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