Digital Culture, Copyright Maximalism, and the Challenge to Copyright Law Phd Thesis University of Western Sydney 2009

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Digital culture, copyright maximalism, and the challenge to copyright law

PhD Thesis

University of Western Sydney

2009

With sincere thanks to UWS supervisors, to Rhonda Fadden, Dale Spender, Sally Wilson,

Sandra Davey, Ann Werner and Jayde Cahir.

The work presented in this thesis is to the best of my knowledge, original except as acknowledged in the text. I hereby declare that I have not submitted this material, in full

or in part, for a degree at this or any other institution.

…………………………………………………………..

(Signature)

Table of Contents

Abbreviations...... 3

Abstract...... 5

1 Culture Clash...... 6

2 A Pirate Party? ...... 24

3 Digital culture: ‘Download this song’ ...... 44

4 The maximalist agenda...... 74

5 The copyleft and the elusive copyright balance...... 109

6 Copyright’s future ...... 143

7 A third way?...... 179

8 Conclusion ...... 209

Appendices...... 225

2 Abbreviations

ACC Australian Copyright Council ACMA Australian Communications and Media Authority ACTA Anti-Counterfeiting Trade Agreement ADA Australian Digital Alliance AFACT Australian Federation Against Copyright Theft AGD Attorney-General’s Department AHRA Audio Home Recording Act AIMIA Australian Interactive Media Industry Association ALIA Australian Library and Information Association ARIA Australian Record Industry Association ARPA Advanced Research Projects Agency (US Department of Defence) ARPANET Advanced Research Projects Agency Network ASA Australian Society of Authors AUSFTA Australia/United States Free Trade Agreement A2K Access to Knowledge BBC British Broadcasting Corporation BIRPI United International Bureau for the Protection of Intellectual Property Blog Web log BMW Bavarian Motor Works (Bayerische Motoren Werke) BSA Business Software Association CADA Copyright (Digital Agenda) Amendment Act 2000 CAL Copyright agency Limited CONTU National Commission On New Technology Uses Of Copyrighted Works CC Creative Commons CCi Creative Commons International CCI Australian Research Council Centre of Excellence for Creative Industries and Innovation CD Compact Disc CEO Chief Executive Officer CMCC Canadian Music Creators Coalition CPTech Consumer Project on Technology CSS Content-Scrambling System CTEA Copyright Term Extension Act DeCSS De-Content-Scrambling System DFAT Department of Foreign Affairs and Trade DFC Digital Future Coalition DFD Defective by Design DMCA Digital Millennium Copyright Act DOAJ Directory of Open Access Journals DRM Digital Rights Management DVD Digital Video Disc EC Electronic Commerce EC European Commission EFA Electronic Frontiers Association EFF Electronic Frontier Foundation EMI Electrical and Musical Industries Ltd EU European Union FCC Federal Communications Commission FLOSS Free/Libre/Open Source Software

3 FOSS Free and Open Source Software FRA Försvarets Radioanstalt law (Sweden) GATT General Agreement on Tariffs and Trade GDP Gross Domestic Product GNU GNU’s Not Unix HRRC Home Recording Rights Coalition IBM International Business Machines Corporation ICT Information and Communications Technology IFPI International Federation of the Phonographic Industry IIA Internet Industry Association IIPA International Intellectual Property Alliance IITF Information Infrastructure Task Force iMP Integrated Media Player ISP Internet Service Provider MIPI Music Industry Piracy Investigations MIT Massachusetts Institute of Technology MMOG Multiplayer online games MPAA Motion Picture Association of America NEA National Endowment for the Arts NGO Non Government Organisation NIN Nine Inch Nails OECD Organisation for Economic Cooperation and Development OIA Open Archives Initiative PERFORM Act Platform Equality and Remedies for Rights Holders in Music Act PRQ Swedish internet service provider hosting The Pirate Bay and wikileaks site P2P Peer to peer QUT Queensland University of Technology RIAA Record Industry Association RSA Royal Society for the Encouragement of Arts, Manufactures and Commerce SETI Search for Extra-Terrestrial Intelligence SDMI Secure Digital Music Initiative SPARC Scholarly Publishing and Academic Resources Coalition TPM Technological Protection Measure TRIPS Agreement on the Trade Related Aspects of Intellectual Property Rights UK United Kingdom UCC Universal Copyright Convention UNCTAD United Nations Conference on Trade and Development US United States of America USTR Office of the United States Trade Representative UWS University of Western Sydney VCR Video Cassette Recording WIPO World Intellectual Property Organisation WTF What The Fuck

4 Abstract

The rapid diffusion of digital technologies since the 1970s has produced significant cultural change within industrialised societies and this dissertation examines the particular challenge that digital technologies and a burgeoning digital culture pose to copyright law. The hypothesis is that the international copyright regime, based on the private ownership of intellectual property, is being undermined by the collaborative and sharing dimensions of a networked digital culture. The argument is premised on evidence that digital culture is now so pervasive and so disruptive of traditional social and economic institutions that current copyright laws are no longer capable of managing the production and distribution of the knowledge, information and entertainment products that are fundamental to the operation of the global information economy.

Ideological and cultural differences have led to conflict and ‘copyfights’ between the owners of copyright works and the digital creators who produce and share copyright works outside the commercial marketplace, and often, outside the law. Defending their legal rights, the owners have generally adopted a copyright maximalist approach. They have successfully argued for stricter laws to protect their valuable private property rights and have enforced the law against digital pirates and new technologies that they claim threaten their businesses and the orderly operation of the knowledge economy. The digital sharers have adopted a ‘copyleft’ approach. Demonstrating little respect for laws that inhibit digital creativity and innovation, and supportive of a public domain of accessible cultural works, they argue for less stringent legal controls over copyright works and for a new intellectual commons in which knowledge, information and entertainment products are shared, rather than privately owned.

Analysis of the culture clash between owners and sharers and between their private and public interests demonstrates that the 21st century copyfights are divisive and expensive. This dissertation, as well as addressing the challenge that digital culture poses to copyright law, suggests possibilities for legal reform and opens up new terrain for further study into the question of who should own and benefit from the knowledge and information that form our cultural heritage.

5 1 Culture Clash

The rapid diffusion of digital technologies since the 1970s has produced significant cultural change within industrialised societies. The change has been so pervasive that scholars and researchers have developed new terms such as ‘the network society’ and ‘the knowledge economy’ to describe its social and economic impact (Boyle, 1996; Tapscott, 1998; Rifkin, 2000; Castells, 2001). They have also identified a new ‘digital culture’ associated with the generations of digital natives who have integrated digital technologies into their everyday lives.1 In the areas of media and communications, digital technologies have so altered the ways in which information and knowledge are produced and distributed that some have labelled the change a ‘technological revolution’ (Drucker, 1992; Castells, 2001).

Such widespread technological change inevitably presents challenges to existing structures and institutions and this thesis addresses the particular challenge that digital technologies and digital culture pose to copyright law. Digital technologies have introduced such fundamental changes to the environment in which information and knowledge are produced and disseminated that the laws devised to manage their orderly production and consumption are no longer economically or socially propitious. At the same time, those who have grown up in the changed environment have developed a range of behaviours and attitudes that depart radically from those of their antecedents. They have formed a new digital culture characterised by its innovation, its different sense of the value of knowledge and information products, and by its marked lack of respect for copyright law. The hypothesis of the thesis is that the combined effects of digital technology and digital culture will force changes to the now discredited copyright law.

1 The term ‘digital natives’ is used throughout the thesis to refer to those who have assimilated the values and practices of digital culture. The term was popularised by Marc Prensky in ‘Digital Natives, Digital Immigrants’ (2001[1]).

6 As the system of legal rules and concepts that has for 300 years been instrumental in managing the relatively orderly and hierarchical production and distribution of knowledge and information, 21st century copyright law is under threat from these new technologies and culture. Digital technologies have undermined its efficacy by disrupting the established patterns of production and distribution. Digital natives, confronted by copyright laws that prevent their access and use of new digital platforms and products, have tended to ignore the laws or find ways to bypass them. The result is a clash between a primarily print-based culture built on a tradition of legal ownership and control of information products and a digital culture built on innovation, sharing and a less proprietorial attitude towards the digitised bytes of information that circulate on digital networks.

Copyright law, which protects the creators and owners of original ‘fixed’ works by giving them certain exclusive rights over their work for a limited time,2 was devised during the early print era when the connection between a printed work and its creator (or owner) was usually clear and when the copying of printed works was difficult and cumbersome. Today, neither of these conditions prevails. Digital technology has largely replaced the physical processes involved in the production and distribution of printed works with a decentralised network of intangible and fast-moving ‘0’s and ‘1’s. This has blurred the connections between digital works and the many millions of networked digital creators who now use digital devices to collaborate and create them. As well, the new works are often ephemeral and their ownership is unclear.

At the same time, the Internet, a ‘gigantic copying machine’, has made the reproduction of works easy and inexpensive (Fogel, 2005: par. 42). Consequently, just as information and entertainment products have become integral to the information society and knowledge economy, the conditions that made copyright law workable no longer exist. The result is confusion and conflict between those with vested interests in the ownership structure of the old copyright regime and those with an enthusiasm for a new and more flexible copyright system.

2 The period of protection introduced with the first modern Copyright Act, the English Statute of Anne in 1710, was 14 years, renewable for 14 years. In the UK, the US and Australia, the period of protection for original copyright works is now 70 years from the death of the author.

7 Critics of copyright law, who are often referred to as the ‘copyleft’,3 argue that the lengthy ownership rights over knowledge and information that are now encoded in copyright law are anachronistic in the collaborative, ‘nanosecond culture’ of the digital world (Rifkin, 2000: 6). Their concerns include the ‘chilling effects’ of copyright law on digital innovation and creativity through fear of law suits from copyright owners, and the impact of long periods of private ownership on the development of an accessible public domain of cultural works. They point to the criminalisation of the many otherwise law-abiding creators who use digital technologies to participate in innovative forms of cultural production by producing, mixing and file-sharing their own and other digital works. Proponents of a copyleft approach advocate changing the law to allow for these new forms of digital production and distribution. Many also envisage a ‘cyberspace’ where a universal library of the world’s knowledge and information would be available in all languages, to all people, all the time (Kelly, 2006).

Opposing the copyleft, are the copyright ‘maximalists’ who, in the face of digital change, defend copyright law and argue for its expansion and enforcement. As the beneficiaries of the exclusive ownership rights granted by current copyright law, they actively assert those rights and seek to bring digital technologies and digital culture’s new forms of creativity within the rubric of a strengthened, international copyright regime. The result is a clash between the values and practices of the two cultures and a major challenge to copyright law.

*****

As will be argued throughout this thesis, much of the conflict between the maximalists and the copyleft is associated with a non-proprietorial, sharing dimension of digital culture. Digital technologies and computer networks have allowed and fostered practices such as peer-to-peer (P2P) file–sharing where users access, create and freely share works across digital networks with little concern for the ownership of the works they exchange. Such practices sit uneasily within a tradition of ownership rights to the works and within a legal system that has evolved to protect those rights.

3 ‘Copyleft’ has a specific meaning and application in the area of software as a general method for making a program or other work free, and requiring all modified and extended versions of the program to be free as well. It has been adopted within digital culture as a general term to describe the movement against the continual expansion and extension of copyrights under national copyright laws and international intellectual property agreements.

8 Numerous studies, including several research studies undertaken specifically for this thesis, indicate that within digital culture, networked digital natives have developed forms of social organisation that are increasingly collaborative and non-hierarchical. In a networked information economy and with few barriers to their participation in digital production, they have created and shared the literary, dramatic, musical and artistic works that are normally the subject of copyright protection. In doing so they have created a stream of ‘non-market peer production’ of digital goods and services (Benkler, 2006). These are largely produced outside the traditional market for copyright works and have severely disrupted the established patterns for their commercial sale and distribution.

In the non-market stream, goods and services are freely exchanged. Ubiquity and not scarcity is the norm, and there is evidence that this has significantly affected the way that digital creators value the knowledge and information that they produce and share. Research undertaken for this project with Australian students and digital creators points to their less proprietorial attitudes towards what is now called ‘intellectual property’, and less respect for the laws that protect it.

In the area of cultural production, these new behaviours and attitudes have produced discord between the increasing numbers of producers and users of new digital technologies and those whose interests, especially economic interests, are vested in the more traditional social and economic structures of the industrial era. For the latter, whose businesses have been based on the legally sanctioned control of the production and distribution of fixed, analogue cultural products, the collaborative and sharing dimension of digital culture is an anathema. They argue that it has threatened to undermine their business practices and has reduced their income streams.

Their response has been to use the law to protect their businesses. They have taken legal action to shut down the new digital technologies that have challenged their control. They have been instrumental in strengthening copyright law and have enforced it against users who have unlawfully accessed the works that they regard as legally theirs to produce and sell. Protected by new ‘digital’ provisions in national laws and international agreements, many have applied new technological protection measures (TPMs), such as watermarking, Digital Rights Management (DRM) systems and other digital locks to their works, to restrict access to works unless permission is granted from the copyright owner and/or payment is made.

9 As stated, at the centre of the socially divisive and economically costly clash between these two different cultures is copyright. As the legal concept underlying the international system that defines and enforces the rights of creators to control the copying of their work, copyright law has become the battleground for the contest between the individuals and organisations supportive of the current legal regime and those who argue for ‘new rules for the new economy’ (Kelly, 1997). In response to the changes wrought by digital technology to the production and distribution of copyright works, the former have used the law to tighten and extend their control over knowledge, information and other cultural products. The latter, initially a diverse group with different social and economic concerns, have coalesced into a significant copyleft opposition that has disputed the power of the copyright incumbents to appropriate copyright works and control access to them. They have challenged copyright laws in the courts and in the media. Many have simply ignored laws that inhibit digital practice. Others have deliberately defied it as a form of protest against laws that are seen to benefit the current copyright holders by restricting the new forms of production and distribution that are developing outside their control.

*****

The focus of this thesis then is the development of digital culture, the emergence of a copyleft movement and the challenge that they together present to the current copyright laws and to the copyright industries whose businesses are based on the ownership of copyright protected works. The central questions to be addressed are:

(i) Have digital technologies and digital culture created new forms of social organisation and a different philosophy about the nature of human intellectual production, which have together fundamentally changed 21st century society? (Moglen, 2003).

(ii) If so, have these changes introduced such discontinuities in the social and economic fabric in industrialised countries that copyright law is no longer an optimal way to manage the production and distribution of cultural works?

(iii) Will strengthened copyright laws force changes to the sharing and collaborative dimensions of digital culture or will digital culture be so powerful and pervasive that copyright law itself will be forced to change?

10 My interest in these questions was first developed when, as a writer and researcher with experience in both the print and digital environments, I was engaged in 2004 to undertake a consultancy into the creative industries. What emerged from desk research and interviews with stakeholders was a range of different attitudes towards copyright law. The copyright industry stakeholders who owned and traded in copyright works, clearly wanted more and stricter copyright protection and greater commitment to its enforcement. Those who ‘created’ the works were more ambivalent. While agreeing with the principle of copyright protection, they said that in practice, they could not afford to use the law to take legal action, if and when their work was copied. They knew little of the particular provisions of the law but print creators, such as writers and journalists, generally wanted more copyright controls while digital creators wanted fewer. Digital creators working in multimedia were concerned that permission and licensing fees imposed by copyright owners were already an impediment to digital innovation. It seemed that for all of the stakeholders who were contacted, there was some dissatisfaction with the law.

To further explore the causes and effects of this dissatisfaction and the challenge that it posed for copyright law, I undertook the research leading to this thesis as an opportunity to carry out a more systematic study of digital culture and its relationship to copyright law. In particular, I focused on digital technology and its connection to discernible social and economic change. I wanted to explore the proposition that digital technology is so different from the print technology that preceded it, that it may not be feasible to apply the same ownership-based copyright laws to the new digital forms of production and consumption of creative works.

I first undertook a survey of the literature relating to the history and development of copyright law. I then looked at many studies exploring the relationship between new technologies and social and economic change. I also made extensive use of a growing body of research into the people who have been labelled the ‘digital generation’ and looked at the culture that has emerged in association with their values and practices. Because of the rapid change within the technology and communications sectors, I subscribed to a number of reputable online technology and media journals and newsletters, for example, fibreculture, salon.com and wired.com. I also accessed the weblogs of copyright industry lawyers and commentators such as Canadian intellectual property lawyer and academic Michael Geist and digital creator Cory

11 Doctorow. Where relevant and credible, I have alluded to some of their commentary and data. A list of the websites that were regularly consulted is included as part of the thesis Bibliography.

In order to provide empirical data about digital technology and culture, I devised three specific research projects. The first was with the Swedish Pirate Party, a political party formed in 2006 with the aim of reforming Swedish copyright law. In June 2007, during a research fellowship at the Advanced Cultural Studies Institute of Sweden (ACSIS) at Linköping University, I recorded three lengthy interviews with the Party’s founder, Rick Falkvinge and another with Marie Andersson, who had been a member of the Party since its inception. The interviews were transcribed and used, along with details of the party’s policies and principles and other public interviews and email exchanges with Falkvinge, to develop a profile of the Party and its copyright reform agenda.

The second research project involved questionnaires and follow-up interviews with groups of Australian print and digital creators. The questionnaires and interviews were designed to identify any differences in their creative practices or in their sense of the ‘value’ of the works they produced.4 The issues raised in the questionnaires were also designed to reveal any differences in their attitudes towards, and experiences of, copyright law.

The third project was with undergraduate students who were involved in a Creative Commons (CC) Clinic at the Australian Research Council Centre of Excellence for Creative Industries and Innovation (CCI) at the Queensland University of Technology (QUT). In 2006, the students participated in an initial information session that I presented about copyright law. They then completed a questionnaire intended to ascertain their level of understanding of copyright law and to elicit their responses, both positive and negative, towards its operation. Additional material about the role of copyright law was collected from students who chose to make further contributions by email and through a specific purpose weblog. It was hoped that this information

4 All Questionnaires were approved by the Ethics Committee at the University of Western Sydney (UWS).

12 would provide insights into the sorts of attitudes and values that these students would take with them into their future activities as lawyers and in other professions.

*****

The dissertation thus begins with the study of the Swedish Pirate Party (‘the Piratpartiet’). Formed in early 2006, it appears from its literature and website to be a microcosm of a digital culture that embraces digital technology and advocates a more universal sense of ownership of knowledge and information products. Reclaiming the term ‘pirate’ from its vilification by the big media industries, the Party aims to gain enough seats in the Swedish Parliament (Riksdag) to hold the balance of power and use it to usher in changes to copyright law.

The interviews with members revealed that the Party was formed as a direct outcome of a perception by Sweden’s digital natives that much of the potential of digital technology is being stymied by the interests of the large, international media and entertainment industries that are using copyright law to protect their businesses. The Party’s principal concern is the increasing loss of balance between owners and users of intellectual products. In summary, the areas targeted for reform are:

• the monopoly power of copyright incumbents to control information and knowledge;

• the diminishing of the public domain of accessible cultural works;

• the criminalising of early adopters of digital culture;

• the extension and expansion of a proprietary copyright regime;

• the application to copyright works of DRM locks that control user access;

• the internationalising of anti-circumvention provisions that prevent breaking those locks;

• the misapplication of patents; and

• the overall effects of a loss of privacy.

Suggesting that the Party exemplifies a broader digital culture that has emerged in association with late 20th century digital technology, in Chapter 2 I use its copyright reform policies and principles to highlight the issues that are central to the conflict over the ownership and control of knowledge and information. I then consider the

13 current conflicts between the copyright maximalists and the copyleft in the context of other culture clashes associated with new technologies and economic and social change. This includes a study of wave and cycle economic theories and the Schumpeterian ‘gales of creative destruction’ that are said to occur in capitalist economies as innovation and entrepreneurism damage existing structures and companies, while creating new ones (Schumpeter, 1976). I also look at the early ‘copyfights’ that emerged when the new technology of print was introduced. I draw some parallels between these fights, where law became the battleground, and the current contest between the proponents of digital culture and the defenders of copyright law.

It is instructive to connect the Pirate Party to the larger phenomenon of digital culture and in Chapter 3 I look more closely at the culture of the ‘net generation’ who have grown up surrounded by digital technology (Tapscott, 1998). Using research from the extensive literature about their salient characteristics, I build a profile of digital natives as ‘produsers’, highlighting their creative practice as both producers and users (Bruns, 2008). I also consider their apparently less hierarchical forms of social organisation and their seeming lack of concern about the sharing and copying of copyright works.

Inexorably tied to the technology itself, digital culture reflects some of the nature of the early Internet as an unregulated network where scientists and researchers freely shared their information. Early adopters of the new digital technologies experienced this same form of ‘freedom’ to collaborate and to access and share digital works. Variously known as the ‘digerati’, ‘netizens’, ‘smart mobs’, ‘millennials’, and the ‘digital’, C or the Y generation, they have grown up with access to networks, to connectivity and to online sharing of software, music, information and relationships. Referred to throughout the thesis as ‘digital natives’ and the ‘digital generation’, they have in common: multi-tasking, connectivity, participation, speed, sharing, openness and collaboration. In sharp contrast to the permission or pay model that developed around print culture, their digital models for the sharing of information and entertainment products appear to be more egalitarian and they are less proprietorial both about the products they create – and about the ownership of products created by others. This ‘sharing’ dimension of digital culture has proven to be problematic in a copyright regime that has evolved to protect private ownership of copyright works.

14 As a concept, and a legal reality, ownership of knowledge and information is fundamental to the challenge that digital culture is posing to the regime of copyright law and in Chapter 4 I look at the development of legal ‘copy-rights’ to knowledge and information. This incorporates a study of the history of copyright, its establishment as a legal right and various notions of the ‘author’ and of the personal ownership of human intellectual production. The historical perspective offers some explanation for the emergence of the very idea of property rights in knowledge, information and entertainment products, and provides insights into how they became valuable commodities, worth fighting over. A review of the 18th century social and philosophical ‘question of literary property’ and the very pragmatic ‘battle of the booksellers’ provides precedents both for the commodification and ownership of cultural goods, and for the positioning of the law as the copyfight battleground (Rose, 1994).

An historical perspective also reveals that those with vested interests in the ownership and control of intellectual property have fought strategically and sometimes ruthlessly to retain their control of knowledge and information – and later - of entertainment products. When threatened by technological and social change, representatives of the copyright industries have made use of the law to protect their property and business interests.

In this context, I trace the power and influence of copyright owners through relevant developments in statute and case law, particularly in the United States of America (the ‘US’) and Australia. I assess the substance and effect of international copyright treaties and the Free Trade Agreement between the US and Australia (the ‘AUSTFA’) in relation to the traditional notion of copyright law providing a balance between private/public and economic/cultural interests. I pay particular attention to the moment in time when digital content was brought under the umbrella of copyright law and to the inherent tensions within a system that ‘aspires to serve the public good by constructing a property regime based on personal gain’ (Gillespie, 2007).

The tensions are explored in an overview of the ways in which the copyright industries have responded to the wave of digital change by using copyright law to impose more stringent legal restrictions on the ‘free’ sharing of cultural products. Thus while copyleft theorists and activists have argued for a reconceptualisation of copyright laws to accommodate this entirely different form of cultural production, the

15 copyright industries have used the law in a concerted effort to maintain their control of the marketplace, to protect both their income streams and the monetized value of the works they ‘own’.

This section of the thesis brings into focus some of the social and economic implications of the copyright industries locking in their ownership and control of the production and distribution of movies, books, newspapers and magazines, television, music, data and information. For example, James Boyle, who is the William Neal Reynolds Professor of Law at Duke University and co-founder of the Center for the Study of the Public Domain, draws a parallel between the appropriation of intellectual resources by the copyright industries and the agrarian enclosure movement of the 15th century (Boyle, 2003). Then, in order to prevent over-use, or the ‘tragedy of the commons’, public access rights to the agricultural commons were gradually, and by law, eroded to make way for private property rights, just as public access rights to copyright works are today being eroded. In contrast, Professor of Law at Columbia University, James Heller, warns that too many private property rights can result in the ‘tragedy of the anti-commons’ where resources are underused in a ‘gridlock economy’ (Heller, 2008).

Sociologist Manual Castells, in his extensive study of ‘informationalism’ and ‘the network society’, stated that ‘there are no technological revolutions without cultural transformation’ (2001) and in Chapter 5 I deal with some of his ideas and those of other social theorists who have sought to explain the ways that individuals and groups engage with the new forms of social organisation that new technologies introduce.

Within this theoretical framework, I bring together more detailed information about the ‘copyleft’ movement and its role in social, economic and legal change. Like the dissidents of the print era who protested against monopoly control over printed works in the 17th century, the copyleft are challenging the monopoly control of the 21st century copyright industries over digital works. While not presaging the imminent downfall of the post-industrial capitalist copyright regime, their ‘commonism’ and commitment to the public domain has much in common with Marx’s communism. Legal scholar Dan Hunter goes as far as to claim that copyleft support for the recognition of intellectual property as ‘commons property’ rather than private property, is a Marxist struggle and part of a culture war over the means of production of creative content in our society (2004).

16 Initially an inchoate movement comprising a number of individuals and groups with various reasons for objecting to the proprietorial nature of copyrights, the copyleft now constitutes a credible opposition to copyright maximalism. Embodying the values, attitudes and practices of digital culture, they are critical of the increasing privatisation of intellectual property at the expense of a freer culture and a public domain, or a ‘commons’, of accessible works. From various perspectives, they argue that current copyright laws and international treaties have tipped the vital ‘copyright balance’ in favour of incumbent copyright holders at the expense of a new digital culture of innovation and creativity, and to the detriment of free speech and democracy. Copyleft economists claim that current laws now protect ownership, not value, and are economically unjustifiable. Copyleft lawyers argue that the laws are unworkable in an environment where digital creators readily engage in the free sharing of cultural works. They argue that rather than criminalising the behaviour of digital creators, the ownership provisions of the law should be modified to encourage their new and innovative forms of creativity. Copyleft activists object to invasive DRM systems and to the TPMs used to control user access to ‘owned’ works. They deliberately break digital locks and continue to break the law by sharing and remixing music and other digital works.

No longer dismissible as pirates and free-riders, supporters of the copyleft hold influential positions in the law, government policy-making, academe and the business world. Open source, open access and access to knowledge (A2K) movements are gradually becoming mainstream. Within academe, researchers and librarians are developing ways of sharing information and knowledge that are outside the traditional models of the commercial publishing industry. Print media and online journals regularly and seriously cover issues raised by the copyleft, and new digital enterprises are successfully exploiting copyleft principles in the development of their business models. Creative Commons (CC) licences that allow creators greater flexibility in the distribution of their work now operate in 43 countries, and the once seemingly radical policies of the Swedish Pirate Party are being adopted by other political parties. Even the study of law in many institutions in the US, the UK and Australia now incorporates a serious critique of intellectual property laws, especially in relation to the private ownership of cultural works and the increasing number of privately owned patents over scientific and medical research.

17 Based on accumulated desk and empirical research, in Chapter 6 I suggest three possible directions in the costly and disruptive copyfights. The first is that copyright maximalism and the current legal system will survive, secondly that there will be a compromise between the interests of owners and users of intellectual property and thirdly, that digital culture and the copyleft will prevail and that they will be instrumental in making changes to the law.

I focus in Chapter 6 on the first and second possibilities, presenting arguments both for and against their likelihood. Looking first at the possibility that the current system will survive, I review the agenda of the copyright maximalists who argue that copyright is good and more copyright is better. They strongly advocate bringing digital culture under control, making the majority of digital natives conform to existing copyright laws – through law suits, education campaigns, arrangements with hardware and software manufacturers, and the application of DRM systems. They are currently supporting serious moves to involve Internet Service Providers (‘ISPs’) in the monitoring of all Internet usage and the issuing of warning notices to those who ‘seem’ to be engaged in unlawful file-sharing.

The sheer economic might and resources of the copyright industries have so far enabled them to use the law to criminalise digital recalcitrants and to enforce current laws, even against their customers. Their assumption seems to be that law and policy- makers are unlikely to make changes to the law that might threaten their business models or undermine their significant contribution to the economy and its infrastructure.

The history of copyright from the 1710 Statute of Anne, detailed in Chapter 3, supports this view. It is a history of major changes in both domestic and international law to protect the big media companies, with occasional, minor concessions to the users of intellectual products. It is a history that shows that the more technology has changed, the more the law has changed to maintain the traditional power and influence of the copyright industries.

However, when the perspective moves beyond the 300-year history of copyright law, it is possible to see that this power and influence started and may finish with the dominance of the print era. The theory of the ‘Gutenberg Parenthesis’ that distinguishes the print era from that which preceded it and the digital era that has

18 followed it (Pettitt, 2007[1]), combines neatly with Schumpeter’s theory of waves of creative destruction, indicating that the old business models of the copyright industries may be casualties of digital technology and culture (1976). It may be that monopoly ownership of knowledge and information and the linear print-based model of a permission and pay culture simply cannot be imposed on a network economy and digital culture. Pettitt suggests that the digital era might instead usher in a model of cultural production that is more akin to the period before print, when as today, cultural products were more collaborative, ephemeral and unstable.

As well, copyright enforcement weakens general law enforcement and it is expensive and time consuming in a market where resources could be spent developing new products and platforms to keep pace with rapid technological change. This is already visible as digital behemoths like Google.Inc and Amazon.com confirm Schumpeterian theory by proving that considerable commercial advantage can be obtained from accommodating, rather than fighting, digital developments.

Copyright enforcement also encourages resistance among the copyleft who value and practise new ways, outside the copyright regime, of reorganising the production and distribution of intellectual products Their protests are increasingly gaining respectability and currency and it has been suggested that their different notions about the value of intellectual property and their resistance to copyright maximalism pose a threat not just to the law, but to the whole market-based, capitalist economy (Strangelove, 2005).

Secondly in this Chapter, I look at the possibility that a more collaborative and less proprietorial digital culture can be accommodated within the current copyright regime. In the online music, film, games and publishing industries there are now hybrid business models that combine the commercial protections offered by copyright law with a greater freedom for creators to participate in a more commons-based, participatory form of cultural production, often without any form of direct payment for the works they access. I also look briefly at the high fashion industry where the industry accepts appropriation and copying of designs as a necessary part of the swift cycle of innovation on which its success is predicated (Raustiala and Sprigman, 2006: 1).

19 Not dissimilar to the model of free-to-air television in Australia, where commercial television stations are funded by advertising, some digital enterprises offer users the ‘feeling of free’ that digital creators value, by collecting revenues from advertising, transactional fees, subscriptions, and premium value-added services. For example, search engine Google.Inc has the ‘feeling of free’ that digital natives expect. But its use of innovative digitally-based advertising such as Adsense,5 has contributed to its emergence as one of the world’s richest corporations with a market capitalisation value on 26th November 2008 of over 90 billion US dollars.6 The social networking site MySpace, purchased in 2005 by News Corporation for US$580 million, also has the ‘feeling of free’ for its users.

The CC licensing system for the management of copyright works is also a hybrid model that combines aspects of copyright law (creators keep their copyright) with the flexibility for creators to choose any of its six core licences to cover a range of distribution options for their work. Under CC licences, creators can, for example, dedicate their work to the public domain, let others copy and distribute it only for non-commercial purposes, or let others remix their work, providing attribution is given. The licences thus operate as a cross between the commercial tenets of copyright law and a freer marketplace for the sharing and re-use of copyright works.

These hybrid models go some way towards redressing the copyright imbalance in their combining of the ‘produsage’ (Bruns, 2008) of digital culture with economic business models that allow more works to be more accessible – and still allow entrepreneurs, some creators and even academics to be rewarded for their effort. Their current success may be connected to the cogency of copyleft arguments but it is more likely that the hybrid models are examples of a stage of adaptation to digital culture and technological change. Either way, such flexible, hybrid models present immediate competition in the digital marketplace to the traditional copyright industries that are based entirely on capital investment and proprietary rights protected by copyright law.

But the hybrid models are a compromise rather than a new direction in copyright law and policy. They are a ‘half-way house’ where it seems that some new business models are adapting and surviving in spite of restrictive laws. Ultimately, they are

5 Adsense uses a technology that automatically ‘crawls’ website content and matches advertisements to it. 6 Based on Nasdaq figures as reported by ‘Yahoo Finance’ at .

20 unlikely to satisfy either the copyright maximalists or the copyleft activists as a longer-term solution to the copyfights. For the maximalists they are disruptive of traditional business models and a threat to the near-monopoly control of the marketplace that content owners are reluctant to relinquish. For the copyleft, lucrative social networking sites such as MySpace and YouTube are exploitative in their appropriation of user-generated content without the offer of fees or royalties.

The specific copyright-focused research undertaken for this thesis with undergraduate students at Queensland University of Technology indicated that they would not be satisfied with the compromise of hybrid models. The students, who were well- informed about copyright law, unanimously agreed that the law was in need of reform. They expressed dissatisfaction with the current law and specifically recommended that any new system must recognise file-sharing as a cultural phenomenon rather than a criminal offence. Their responses also confirmed a concern that knowledge and information can be privately owned and deliberately excluded from a public domain of accessible digital works. They made it clear that ad hoc copyright fixes and hybrid business models are not the sorts of copyright developments that will meet their needs as digital users and future professional workers in a knowledge economy.

In Chapter 7 I consider the third possibility of significant legal reform, and explore options for new laws tailored to, rather than merely accommodating, aspects of digital culture. I examine some current developments in the production and distribution of cultural products and from this perspective consider whether the pervasiveness of digital culture and the sheer number of digital natives, combined with the reported loss of income and power of the copyright incumbents, will eventually lead to some changes to copyright law.7

In Chapter 7 I also introduce empirical research from the questionnaires and follow- up interviews that I undertook in 2006 with digital and print creators in Australia. The research supports other studies that reveal a less hierarchical form of social organisation within digital culture and a collaborative and sharing dimension to the attitudes and behaviours of digital creators. The research also exposes similarities and

7 George Szalai, NY Bureau Chief and Business Editor for The Hollywood Reporter reported on 1 July 2008 that the shares of all ‘sector giants’ had been dragged down during the first half of the 2008 year. Available at . Retrieved 26 July, 2008.

21 differences between the creative practices of print and digital creators and their attitudes to copyright law. Both groups agree with the principle of protecting creators’ works and incomes but, in practice, few understand the law and few can afford to use it. Digital creators generally see the law as stifling innovation and creativity and, like the students at QUT, they tend to regard all file-sharing as a cultural phenomenon that should not be cast as a criminal activity. They show greater interest than the print creators in a public domain of accessible works that are not ‘owned’ or locked up by DRM systems. Perhaps portentously, both print and digital creators express an interest in a copyright regime that incorporates a copyright-free zone.

From the research, it is apparent that at the vanguard of digital culture, legal scholars and theorists have already conceived alternative ways of addressing the copyright problems of the information revolution. In their various forms, the alternatives involve rethinking the purpose and role of copyright in a digital environment and creating new laws that provide a better balance between the ‘private’ interests of owners and the ‘public’ interests of users. Such laws would provide some protection for the economic and moral rights of creators while also allowing digital culture to flourish. In the short term, they would inevitably diminish the power and the incomes of the copyright incumbents by introducing a new copyright regime where owners of intellectual property could no longer use the law to restrict developments in new technologies or to exercise monopoly control over access to knowledge and information.

I assess the feasibility of these alternative solutions for the copyfights in the light of moves that have already been made towards the legal reform that the copyleft and the Pirate Party advocate. There have been several legislative proposals that would enhance the public domain. There have been convincing economic arguments that the term of copyright protection should be reduced and that a copyright-free space should be created to allow for innovative intercreativity. There have been concrete proposals for strengthening the US ‘fair use’ and Australian ‘fair dealing’ provisions of copyright law that allow access to works for purposes such as research and study, criticism and review, reporting the news and parody. Some commentators have suggested that more liberal use should be made of government copyright material and others, that a form of registration for commercial copyright works should be reintroduced, allowing unregistered and non-commercial works to become part of the

22 public domain. There have also been proposals to develop workable laws that decriminalise all file-sharing for personal use, that abolish DRM systems and that reform patent and privacy laws.

The proposed changes will undoubtedly be resisted by many in the copyright industries who still wield international power and who are even now arguing and lobbying at the international level for stricter copyright controls. But their position no longer seems inviolable. Some of their numbers in the new digital copyright industries appear to be weakening. For example, in 2007 Steve Jobs, co-founder and CEO of Apple.Inc publicly advocated removing DRM from iTunes online music store ‘because DRMs haven’t worked, and may never work, to halt music piracy’ (2007). Tom Rubin, Chief Counsel for Intellectual Property Strategy at Microsoft, has asked his colleagues to adopt a greater sense of ‘stewardship’, rather than ‘ownership’ of knowledge and information (2008). The values of digital culture, it seems, may be diffusing as widely as digital technology.

In the final Chapter of the thesis, I look again at the questions first posed about the challenge that digital culture presents to copyright law. I conclude that digital technologies and digital culture have fundamentally changed 21st century society. The momentum of cultural change is both powerful and pervasive. It seems unlikely to be reversed by the enforcement of unpopular copyright laws that are disregarded by large numbers of digital natives who have adopted the values and practices of digital culture. At the same time, the current copyright regime is proving to be problematic rather than efficacious in the networked knowledge economy. The resistance to change exhibited by the copyright incumbents is losing economic and social credibility and it seems inevitable that the resolution to the 21st century culture clash over the ownership of knowledge and information will come with changes to the law, rather than changes to digital culture.

2 A Pirate Party?

The Swedish Pirate Party is an archetypal example of an identifiable digital culture that has emerged in response to 20th century digital technology. An analysis of its policies and principles in relation to the reform of copyright law highlights the issues that are central to the contemporary ‘copyfights’ over the value and ownership of knowledge and information. Interviews with its founder and party members illuminate the challenge that digital culture poses to the international copyright regime.

The Pirate Party (the ‘Piratpartiet’) was formed in Sweden on 1 January 2006. Its founder, digital entrepreneur Rick Falkvinge, believed that a political party focused on copyright reform could gain enough seats to hold the balance of power in the 349 seat Swedish parliament (‘Riksdagen’). He claims to have been surprised when the Party’s website displayed three million hits in its first two days and the 1,500 electronic signatures required for formation of a new political party were registered. These were initially declared invalid by the Swedish Election Authority, which required ‘written’ signatures, but they were subsequently certified by a public notary and then confirmed by the Election Authority. By June 2008, the Party had 7000 members in Sweden, with chapters either registered or being formed in 20 countries. The German chapter became the second ‘Pirate Party’ to contest an election. It received 0.3% of valid votes in the 2008 election in the state of Hesse.

The formation of the Pirate Party highlights issues that are central to this study of the challenge that digital culture poses to copyright law. The Party’s principles illustrate the clash between the culture of the new digital, networked information economy from which it has emerged and that of an earlier, print-based industrial economy. Its policies provide insights into the causes of the 21st century copyfights being fought over copyright law. Its existence as a non-hierarchical organisation run entirely through its website and digital network demonstrates the differences in social organisation between the two cultures and, as Eben Moglen, Professor of Law & Legal History at Columbia University says, their ‘different philosophies about the nature of human intellectual production’ (Moglen, 2003[1]).

24 The three interviews undertaken with Rick Falkvinge in Stockholm in 2007 revealed that his motives for establishing the party were both personal and political. At a personal level, Falkvinge had grown up experiencing the sorts of Internet freedoms that Sweden offered its citizens: inexpensive high speed broadband, a national interest in new technologies, a technological confidence from the early roll-out of broadband and very little state intervention in online activities. He says these factors made it ‘too late for the Swedish to unlearn about collaboration and the Internet’.8 He also suggested that there was less commitment in Sweden than in some European countries to the idea of the romantic, author-genius whose work and special status must be acknowledged and protected by copyright law.

Politically, Falkvinge was disturbed by the changes introduced to Swedish copyright law in 2005 to make it conform to the European Electronic Commerce (EC) Directive. As an early adopter of the more collaborative and sharing culture of the Internet he was concerned that the new laws that criminalised much P2P file-sharing portrayed file-sharers as unlawful pirates rather than digital innovators. He was also concerned that the new laws required Sweden to extend the period of protection of copyright works to 70 years after the death of the author and to introduce provisions for the protection of technological locks and DRM systems. He thought that both provisions were intended to protect traditional media monopolies at the expense of digital innovation and creativity.

Falkvinge was further disturbed by threats, particularly from the Motion Picture Association of America (MPAA), to use the law to close down international file- sharing services. As an information technology manager, he believed that such intervention was an invasion of privacy and harmful to the development of digital technology.

Falkvinge says that the imposition of new copyright laws in Sweden moved file- sharing from a cultural to a political phenomenon, but one about which most politicians ‘know nothing and do nothing’. One of his aims for the Party was to bypass politicians and go directly to voters about issues that he thought would be of concern to them. The 2005 Swedish census revealed that there were 1.2 million file sharers in Sweden. Falkvinge surmised that if one in five objected to being labelled as

8 Interview with Rick Falkvinge, Stockholm, 16 June 2007.

25 a criminal, the Party could potentially have the 225,000 voters needed for representation in the Parliament. If they voted for the Party, there was a possibility of realising the Party’s aim to ‘create a new balance of power with a centre position on the Party’s three major platforms: piracy, patents and privacy.’9

The choice of the name ‘Pirate Party’ was Falkvinge’s way of reclaiming the word ‘pirate’. In a public interview in 2006, he said: “The media conglomerates have been pointing at us and calling us pirates, trying to make us somehow feel shame. It doesn't work. We wear clothes saying ‘PIRATE’ in bright colors out on the streets. Yes, we are pirates, and we're proud of it, too” (2006). Both he and Marie Andersson pointed out that the term ‘pirate’ is not as negative in Sweden where the Piratbyrån (‘the Pirate Bureau’) intellectual property think-tank has been publicly lobbying since 2003 for reforms to copyright law that would allow a freer sharing of information and culture.

Born digital and focused on the possibilities for an open and diverse information society, the Swedish Pirate Party is based on the collaborative and ‘sharing’ practices of digital culture. Falkvinge says the Party’s non-hierarchical organisational structure and culture reflect the ‘hacker culture’ of the early adopters of digital technology in the 1960’s. Membership is predominantly (90%) male, but Falkvinge says that the 10% of women members are very active and committed. Marie Andersson explained that she was a founding member of the Party and had been actively involved in the development of its policies and principles. The majority of members are in the 18-25 age group, with membership dropping a little until age 30, at which point it drops sharply.

The Party has no ‘bricks and mortar’ headquarters and does not rely on face-to-face meetings between members to develop its politics. Using the tools of digital culture, members instead meet and contribute online. Policies and principles are developed in online discussion and debate throughout the year rather than at annual conferences. The Party’s principles visibly evolve online, where contributions are noted and tracked.10 Members then vote on changes through what is called participatory consensus. All changes are recorded and are transparently available. Anyone, even

9 Interview with Rick Falkvinge, Stockholm, 16 June 2007 10 The Pirate Party ’Principles’ are available in English at http://docs.piratpartiet.se/Principles%203.1.pdf

26 non-members, can contribute or ‘edit’ the documents and make suggestions for change as they do with Wikipedia, the open software online encyclopaedia.

The website is a communication tool through which information can be uploaded, downloaded, edited and shared. Several well-attended public rallies have been arranged entirely through the networking technologies of the website and mobile phone contact.

The website was used as a digital tool to marshal support in the 2006 Swedish elections, which were held nine months after the Party was formed and in which it captured 0.63% (34,918) of the votes. This fell short of the 4% required to qualify for a seat in the parliament but the Party did achieve the tenth highest vote overall and was placed as number four among youth voters. Falkvinge noted during an interview that in the parallel ‘mock’ elections, traditionally held in Swedish high schools, the Party gained 4.5% of the vote – even without prepared Pirate Party ballot forms.11 He expects that in the 2010 Swedish elections, younger voters, who are now more aware of the politics of piracy, will provide them with the required 4% of overall votes.

Widespread support for the Party, particularly among young people, may be attributable to the fact that broadband access and file-sharing were common in Sweden well before the entertainment industries started their anti-piracy campaigns and their push for a tightening of intellectual property laws. A poll conducted in Sweden and reported in the Swedish newspaper The Local by Adam Ewing in May 2006, found that those aged 18-20 were more likely to view file-sharing as a cultural phenomenon than as a criminal activity. When asked to respond to the statement “I think it is OK to download files from the Net, even if it is illegal”, 77% of the Swedish respondents agreed, either ‘adamantly’ or ‘partly’. In the same year, a poll was undertaken with 1,183 Americans aged 8-18, by research company Harris Interactive. The poll was commissioned by the Business Software Alliance (BSA), a Washington DC-based lobbying firm that fights software piracy and whose members include Microsoft Corp., Apple Computer and Adobe Inc. In the US study, 43% of the respondents thought that unlawful downloading of digital copyright work (including software, music, movies and/or games) from the Internet was “OK” (BSA 2006).

11 Interview with Rick Falkvinge, Stockholm, 24 June 2007

27 Support for the Party increased in May 2006 when the Pirate Bay, a BitTorrent P2P file-sharing site capable of fast delivery of large amounts of digital data, was raided and closed down by Swedish police. It was reported by ‘Ernesto’ at the torrentfreak, BitTorrent news weblog that the anti-piracy raid was instigated at the behest of the US movie industry through the MPAA (2006). The MPAA allegedly threatened the Swedish government with action through the World Trade Organisation (WTO), the international body that sets the ground rules for international commerce and of which Sweden has been a member since 1995.

A scanned copy of a facsimile letter from John G Malcolm (Executive Vice President and Director of MPAA Worldwide Anti-Piracy Operations) to the State Secretary of the Swedish Ministry for Justice, dated 17 March 2006, was ‘leaked’ and appeared on various websites, including the torrentfreak weblog.12 The letter exhorted the State Secretary to use his influence to urge law enforcement authorities in Sweden to take action against the Pirate Bay.

Whether or not there was a direct connection between the letter and the raid two months later, the Pirate Bay’s servers were removed, as were those of the Piratbyrån, the pro-piracy think tank that had originally launched the Pirate Bay site, but which was no longer legally associated with it.

The raid attracted national and international publicity and an immediate response from the MPAA. John G Malcolm was reported as saying ‘We applaud Swedish law enforcement for their effort to stop egregious copyright infringement on The Pirate Bay’ (qtd. in Ernesto, 2006). Less positively, but indicative of the level of the response in Sweden, MPAA’s Swedish representative, Monique Wasted, reported death threats against her and other anti-piracy spokespersons (Norton, 2006).

Digital activists in Sweden responded to the raid by using their networks to arrange pro-piracy demonstrations in Stockholm and Göteborg. Both were well attended, mainly by young people who objected to the removal of the file-sharing service and the incursion that the raid represented on free speech. In an email to me (27 July 2008) Falkvinge reported that membership of the Pirate Party had spiked dramatically immediately after the raid, with 1000 new members joining online.

12 The facsimile is available from the Sverige Television (SVT) website at .

28 Within days of the removal of its servers, the Pirate Bay BitTorrent file-sharing service was running again from servers based outside of Sweden. The Pirate Party took a public stand by endorsing ‘RELAKKS’, an alternative low-cost, encrypted service that allowed anonymous file-sharing, making it difficult for file-sharers to be tracked. Costing 5 euros a month, part of which was paid to the Party, the RELAKKS service was initially unable to meet the demand generated after the Party’s endorsement. The RELAKKS website states:

Relakks provides services to help individuals to assure the security and integrity of their information. Relakks’ responsibility stems from the strong Swedish tradition of protecting the integrity of private life and all forms of communication between individuals.

Relakks - broadband Swedish style! (Relakks website, November 2008)

Another result of the raid and the attendant publicity that implicated American entertainment industry groups in its execution, was the formation of a new Scandinavian pro-piracy lobby group called ‘PPInternational’, with branches in Sweden, Norway and Denmark. It is described on its website as a collective for the Pirate Party movement around the world. As well, a documentary film about the Pirate Bay raid, titled Steal This Film, was compiled and made available free to downloaders on the film-makers’ website. Produced with ‘thousands of donations’, the Steal This Film website says of the film and the raid:

Because waves of repression continue to come: lawsuits are still levied against innocent people; arrests are still made on flimsy pretexts, in order to terrify and confuse; harsh laws are still enacted against filesharing, taking their place in the gradual erosion of our privacy and the bolstering of the surveillance state. All of this is intended to destroy or delay inexorable changes in what it means to create and exchange our creations. If STEAL THIS FILM II proves at all useful in bringing new people into the leagues of those now prepared to think ‘after intellectual property’, think creatively about the future of distribution, production and creativity, we have achieved our main goal. (Steal This Film website, 2008)

More recently, the Party has been involved in a campaign against the new Swedish ‘FRA’ law (‘FRA-lagen’). The FRA is a package of anti-terrorism legislation that gives the Swedish National Defence Radio Establishment (Swedish Försvarets

29 Radioanstalt), a government agency, the right to intercept all Internet traffic crossing Swedish borders. Major newspapers have taken a stand against the law, along with lobbying organisations such as the Swedish Union of Journalists, the Swedish Bar Association and the Swedish Center for Justice (‘Centrum för rättvisa’), which described the Act as the Swedish ‘big brother snooping law’ (Crafoord, 2008). The Act was adopted by the Swedish Parliament on the 18th of June 2008, with a vote of 143-138.

The Swedish Centre for Justice and the Pirate Party regarded the FRA as an invasion of privacy and a contravention of the European Convention on Human Rights, which had become part of Swedish law in 1995. Falkvinge informed me in an email of 28 July 2008, that the Party ran a grass-roots campaign against the law, highlighting its use of digital technology to turn Sweden into a ‘big brother’ surveillance society. The campaign was ‘funded by no one and organized by no one — only a ‘spread the word’ campaign, which promoted the FRA into a major political issue. He reported that two thousand protesting people, chanting ‘STOP THE FRA’, blocked the street outside the Parliament building in Stockholm. Another 1000 people formally joined the Party. On August 8, 2008 an article in the Swedish newspaper Aftonbladet referred to a recent poll that found, since the passing of the law in June and the Party’s campaign against it, the number of Swedish people critical of the law had risen from 47% to 51% (Marmostein, 2008).

*****

The Party’s policies are directed towards the reform of copyright law, the abolition of the patent system and respect for the right of privacy. With regard to the reform of copyright law, Falkvinge argues that copyright law has turned knowledge and information into private property that is no longer accessible and usable by ordinary citizens without permission or payment. The Party’s copyright reform policy states that non-commercial copying and use should be free and that file-sharing of cultural works should be encouraged rather than criminalised.

The policy also states that the period of protection for copyright works should be radically reduced to five years after publication, rather than 70 years after the death of the author. Falkvinge argues that this would allow a period for commercial exploitation of new works that would subsequently move into the public domain and

30 form the basis of ‘the greatest public library ever’.13 Falkvinge pointed out that the current 70-year copyright arrangement means that no current works will enter the public domain during his lifetime. ‘The commercial life of cultural works is staggeringly short in today’s world and no-one needs to make money 70 years after they’re dead’, he said. In response to the argument that creators need the longer period of copyright to compensate them for their relatively low financial rewards and lack of employer superannuation, he points out that most of the benefits from copyright works actually go to the corporations that either own or license them. While agreeing that creators are not generally well-paid he added: ‘Why should creators who are paid not put some of their earnings into superannuation, as others are obliged to do?’

Another focus of the Party’s copyright reform policy is the increasing use by content owners, particularly music record labels, of DRM technologies such as encryption and watermarking. DRM is designed to control access to digital works but some DRM systems can also be used to track online behaviours, even of those who have lawfully accessed protected works. The Party regards this as an unwarranted invasion of privacy and wants invasive technological protection measures banned.

In relation to the patent system in Sweden, the Pirate Party is particularly critical of pharmaceutical patent laws that allow scientific data and research to be privatised rather than ‘shared’. The Party has what it calls a ‘constructive and reasoned proposal’ for an alternative system in Europe.14

The Party’s third policy area relates to the respect for the right of privacy and this is central to the Party’s campaign against the FRA Act. Concerned by government use of digital technology to increase surveillance, the Party refers in its Principles to the right to privacy as a basic human right. It calls for openness and transparency by governments and for all powers, systems and methods that governments use against citizens to be under constant evaluation and scrutiny by elected officials. The Party’s Principles state: ‘When the government uses surveillance powers against regular citizens who are not suspected of any crime, it is a fundamentally unacceptable and clear violation of the citizen's right to privacy’.

13 Interview with Rick Falkvinge, Stockholm 24 June 2007. 14 The Proposal for patent reform is available on the Party’s website at http://www2.piratpartiet.se/an_alternative_to_pharmaceutical_patents.

31 In an interview in June 2006, after the Pirate Bay raid, Falkvinge was asked about the Party’s stance on intellectual property laws and privacy issues. He articulated a fundamental dilemma faced by digital culture: the choice between adhering to copyright laws or fighting for the right to communicate privately, without government or industry surveillance. He said:

So – if copyright is to be enforced – if you are to tax, prohibit, fee, fine, or otherwise hinder the transmission of copyrighted works in private communications, the only way to achieve that is to have all private communications constantly monitored. It’s really that large.

Also, this is partly nothing new. We've been able to do this since the advent of the Xerox copier – you could photocopy a poem or a painting and put it in a letter in the mail. Again, the only way to discover or stop that would have been for the authorities to open all letters and check their content.

So we're at a crossroads here. Either we, as a society, decide that copyright is the greater value to society, and take active steps to give up private communications as a concept. Either that, or we decide that the ability to communicate in private, without constant monitoring by authorities, has the greater value – in which case copyright will have to give way. (Falkvinge, 2006)

During 2007 and 2008, Rick Falkvinge travelled throughout Europe to gather support for the 100,000 votes that will be needed for the Pirate Party to be represented in the European Parliament in the 2009 elections. Speaking at a Google ‘Tech talk’ on 31 July 2007, he claimed that garnering 100,000 votes in Europe was not unrealistic (Falkvinge, 2007). He also noted that the issue of file-sharing has brought copyright and intellectual property policy to the fore with even the popular press showing increased interest in the Party’s views on the copyfights between the big media companies and those who object to their near monopoly power. He claimed too that politicians in Europe are starting to understand that copyright law is an issue that might attract voters, particularly younger voters. He explained that the Norwegian Conservative Party, for instance, had recently adopted the Swedish Pirate Party’s policy on copyright reform. “They just translated it and adopted it”, said Falkvinge at the Google forum. He added that it was somewhat ironic that such an action itself might technically constitute a breach of copyright.

32 The Party’s copyright reform principles and the publicity its campaigns have generated have also affected the mainstream Swedish political parties. In June 2008 Sweden’s Left Party, which holds 22 seats in the Swedish parliament, proposed the legalisation of the uploading and downloading of copyrighted material for personal, non-commercial use. The motion put to Party members referred to file-sharing as beneficial in the same obvious way as public libraries. Left Party member, Elise Norberg Pilhem, is reported as saying: ‘We obviously want to be the cultural workers’ party in the future, but legislation which makes the majority of the adult population criminals must be changed’ (qtd. in Ernesto, 2008).

A few hours after the Left Party’s new stance on file-sharing was made public, the Swedish Center Party, the third largest party in Sweden with four cabinet ministers in the current government, called for a complete review of the copyright legislation, and the appointment of a commission to investigate how a new copyright law could be constructed. Acknowledging the demands for updated copyright legislation, the Center’s spokesperson on copyright referred to the increasing numbers of young people who were questioning copyright law and to the importance of laws being accepted by as many as possible (Ernesto, 2008).

*****

The Pirate Party protest against more restrictive copyright laws is significant for this thesis in its exemplification of a broader movement that is challenging the international copyright regime. In countries throughout the world, lawyers, academics, economists and creators, individually or as members of organisations, have drawn attention to the negative social and economic impacts of an increasingly restrictive copyright regime. Their protests, like those of the Pirate Party, are more than esoteric arguments between lawyers, economists and cultural theorists over who owns, and should own, knowledge and information. They are an indication of the emergence of a nascent culture associated with technological change where values and practices clash with those formed during an earlier, pre-digital era. Their members are prepared to actively engage in a protest against traditional copyright laws, some by subverting them and others by arguing against them in the media, the legislature, and particularly in the courts.

33 Adam Thierer and Wayne Crews have pointed out as editors of a book on the future of intellectual property, that ‘[D]ebates over the nature and scope of intellectual property law are centuries old.’ (2002:xv). But in the new information economy where knowledge industries are replacing manufacturing industries as the currency of global trade and profit, and where digital technology has so rapidly altered traditional ways of producing and distributing knowledge and information, the current debates have assumed a new economic and social significance (Rifkin, 2000).

Falkvinge suggests that the moves in Sweden to stop music file-sharing was a harbinger for subsequent battles over access to online materials and the music industry provides clear examples of the culture clash over the rights to intellectual property. In 1998 when US college student Shawn Fanning developed Napster, a P2P digital file-sharing application that allowed users to share music over the Internet, the major record labels, which include Sony BMG Music Entertainment, EMI, Universal Music Group and the Warner Music Group, regarded Napster as a form of outright piracy. In one of the early digital copyfights, A&M Records (part of the Universal Music Group) and several other recording companies took legal action in December 1999 against Napster and against file-sharing as a form of copyright infringement.

The record companies were successful in their lawsuit and Napster was eventually closed down in 2001. However the success of P2P distribution of music was established. Over 50 million people, mainly young and digitally literate, accessed the music-sharing service before its demise (Lasica, 2005:192). In his critique of the Hollywood movie industry and the outdated practices of other big media corporations, J D Lasica says Napster was a ‘cultural powerhouse, opening the floodgates to a new world of free-flowing music’ and a mass uprising against the predatory pricing practices of the recording industry (193).

More recently, in another very visible demonstration of the divergence between the record industry’s practices and those of the musicians who can now use digital networks to distribute their work directly to their fans, English rock band Radiohead, broke in 2007 from the EMI label and offered their seventh album via digital download from their own website (Tyrangiel, 2007). They did so without using the services of a major record label and at whatever price users wanted to pay. Other musicians, such as Janis Ian and industrial rock group Nine Inch Nails (‘NIN’) and writers like Cory Doctorow, have similarly become renowned for making their work

34 available directly to their customers via the Internet, much of it for ‘free’. All claim that this has enhanced their profile and the sales of their work.

The popularity of P2P file-sharing services (both lawful and unlawful) and the bypassing of traditional distribution platforms by creators are examples of a burgeoning digital culture seeking new ways to produce and share creative works. The reluctance of the copyright industries to change their restrictive practices to accommodate this digital creativity is seen by some commentators as a hostile response to the threat to the industries’ legally enforceable property rights and their old supply-chain business models. Others, with a more philosophical view, criticise the apparent conservatism of the copyright industries on the grounds that it is preventing the development of new platforms for creating and distributing cultural resources (Demers, 2006:4). The Pirate Party, in its principles, is critical of the industries’ restrictive practices on both of these grounds.

P2P file-sharing and disintermediated distribution through digital networks demonstrate ways in which digital technology has precipitated a movement away from the hierarchical, industrial model of control over cultural products. Sociologist Manuel Castells says we now have a network society that constitutes a new global model of social organisation, based on ‘informationalism’ (Castells, 2004). He says that in the new model, power is embedded in information technology, which has replaced and subsumed industrialism as the dominant technological paradigm. His view is that the accidental coincidence of three independent processes have combined to create a new information age and a new social structure. These are: (i) the crisis and restructuring of industrialism and of production, capitalism and statism, (ii) the freedom-oriented cultural movements of 60s and 70s and (iii) the revolution in information and communication technologies. Together they have created a culture of freedom, individual innovation and entrepreneurism with ‘social values of breaking away from established patterns of behaviour, both in society at large and in the business world’ (Castells, 2000:5).

The network society that Castells describes, like the technologies that have contributed to it, is characterised by connectedness and collaboration rather than hierarchy and control. Participants in this new society are no longer the passive recipients of information and entertainment produced in a fixed form and distributed by the big content corporations. They are rather, what Axel Bruns has called

35 ‘produsers’, who use digital software and hardware to create, produce and distribute their own ‘user-generated’ versions of works that are always changeable and that are frequently shared, not owned (2008:2).

In the business world, produsers are changing the manageable models of supply and distribution of physical goods into very unmanageable networks where file-sharing of intangible digital bytes has become common practice. Using and playing with new digital communication tools, produsers are increasingly participating in the production and distribution of knowledge and entertainment products. They are bypassing the traditional middlemen and controlled distribution and are undermining the control – and the profits – of the incumbent copyright holders. Castells points out that this is occurring at the time when the Internet economy and the information technology industries have become the core of the US economy, not only qualitatively but quantitatively (2000:151). In this context, it is not surprising that the economic and social upheaval associated with the transition to a network society has introduced conflict among its members.

*****

Just as debates over intellectual property are centuries old, so conflict and debates over technological and cultural change are not confined to the network economy and the digital age. Economists, lawyers and social and cultural theorists have long recognised, studied and commented on the connections between new technologies and cultural change, and have developed a range of coherent theories to explain them.

In 1925, for example, Russian economist Nikolai Kondratiev (1892-1938) published a theory of long waves of technological change and economic growth in his book The Major Economic Cycles. He calculated that each ‘wave’ of technological change took about 60 years and each inevitably brought significant change to social and economic mores. Austrian economist Joseph Schumpeter further developed the notion of Kondratiev waves of change, linking them to ‘gales of creative destruction’ that occurred in industrial societies as innovation and entrepreneurism damaged existing structures and businesses, while creating new ones (1976). In 1990, economist Christopher Freeman enlarged upon the idea of the Schumpeter/Kondratiev waves and connected them specifically to cycles of technological change in capitalist industrial development. Carlotta Perez, an academic and international consultant on

36 technological and social change, identified the tendency for each long wave to lead to what she terms a ‘technological style’ to which economies react in similar ways (1983).

According to Perez, when there is a strong match between social organisation and new technologies, there are periods or waves of strong growth and innovation. When the two are mismatched, economic growth and social cohesion are disrupted. The implication of her theory is that the current mismatch between the new network society and the old laws that inhibit innovation and connectedness is likely to disrupt the established fabric of social relationships and to affect economic development.

Wave or cycle theorists seem generally to agree that there have been five waves since the industrial revolution, each linked to a period of innovation associated with technological change and each involving social as well as economic change. Briefly, the five cycles identified are associated with the 18th century industrial revolution; the early 19th century age of steam and railways; the later 19th century age of steel, electricity and manufacturing; the 20th century age of oil, the automobile and mass production and the current age of information and telecommunications.

Popular sociologist Alvin Toffler, who was quick to identify the phenomenon of the digital ‘prosumer’ (producer-consumer), opted for a theory of three broad waves. He identified a first wave agrarian culture segueing into a second wave industrial society and then, into a third wave knowledge/information society (Toffler, 1980). Drawing attention to the close connection between technology and change, Jeremy Rifkin also writes of the current ‘wave’ of digital change in the network economy wherein ‘the network based global economy both drives and is driven by a dramatic acceleration in technological innovation’ (Rifkin, 2000:20).

These are just a few theorists who have attempted to make and interpret connections between technological innovation and economic, cultural and social change. More recently and in relation to digital technology, researchers and business strategists Don Tapscott and Anthony Williams have claimed that digital technology and innovation have changed the way goods and services are invented, produced, marketed and distributed on a global basis by allowing people to participate in the economy in new ways with ‘weapons of mass collaboration’ (2006). They argue that digital culture’s new competitive principles, such as openness, peering, sharing, and acting globally

37 are powerful new models of production based on community collaboration and self- organisation. The new models offer digital natives the greater levels of autonomy and the immediacy that digital technologies have introduced to their daily lives and according to Tapscott and Williams, businesses that insist on preserving old models of hierarchy and control simply will not survive in the longer term (33).

Jean Burgess and Mark Fallu use the term ‘intercreativity’ to describe the connection between new models of digital production and new models of social behaviour. They identify intercreativity as a model that allows greater autonomy and agency for users and ‘a more powerful sense of user engagement with media texts, individualised personalised media and greater user choice’ (2007:135). Intercreativity involves new digital platforms such as mobile phones, MP3 encoding for music, rich media appliances, the Google search engine, social networking sites such as YouTube, MySpace and second life, Wikipedia, video-streaming, blogging and podcasting and of course P2P file-sharing. It also includes open source or citizen journalism and open access scholarship where universities retain ownership of their scholarly output and make it freely available on the Internet.

Tapscott and Williams say that in enabling these new ways to entertain, communicate and transact, the new technologies are giving users a participatory role in value creation that they did not generally experience before digital technologies were available. And as Falkvinge said of the early adopters of digital technology in Sweden, having experienced the power and pleasure of collaboration and the Internet, it is too late for produsers to ‘unlearn’ them or to withdraw from their participation in creating and accessing digital works. This is seen by many as posing dire threats to existing proprietary business models and even as ‘an attack on the legitimate right and need of companies to make a profit’ (Tapscott and Williams, 2006:2).

Yochai Benkler, who is the Jack N. and Lillian R. Berkman Professor of Entrepreneurial Legal Studies at Harvard Law School, has also linked the radical changes in digital information production with a series of economic, social and cultural adaptations, which in turn have created ‘a battle over the institutional ecology of the digital environment’ (2006:2).

Such battles, or culture clashes, are familiar phenomena. Protests and fights of various sorts have accompanied change whenever new technologies have challenged

38 entrenched cultural mores and most changes were eventually discarded or subsumed into the legal, social and economic fabric. A salient example is of ‘the Luddites’, the ‘machine-breakers’ of early Regency England who confronted the major shift in technological and socioeconomic conditions that accompanied industrialisation (Thomas, 1970). The English Luddites were textile workers who protested violently against the factory machines that were replacing their labour and depriving them of their livelihoods. Their revolt involved deliberate destruction of lace and hosiery stocking-frames and of machinery in wool and cotton mills. In his study of the revolt, Thomas shows that the disruption caused by the Luddites led the British government to engage troops to quell the uprising and to introduce laws against machine-breaking, making it a capital crime.

As a result, in 1813, seventeen of the Luddites were executed after a trial in York. Many others were transported as prisoners to Australia. Indicating the importance of the cultural change – and the resistance to it – Thomas claims that at one time, there were allegedly more British troops (12,000) engaged in the fight against the Luddites than the Duke of Wellington had taken to fight in Portugal in 1808 (144). Another result is that the terms ‘Luddite’ and ‘neo-Luddite’ have been adopted into the English language to describe those opposed to technological progress and change.15

Earlier – and more pertinent to the current copyfights – are the 17th and 18th century clashes precipitated by the new technology of the printing press. The dramatic changes that the printing press introduced are also well documented with scholars claiming print to have been instrumental in the scientific revolution, the democratisation of reading, universal education, the rise of the notion of authorship, and even the rise of national languages and nation states.

At a more prosaic level, the printing press and its role in the commodification of literature brought the need to manage the production and distribution of printed works (Rose, 1994:1). They also raised for the first time the ‘question of literary property’ and led to debates and legal battles between booksellers, stationers, publishers and authors over who should own and benefit from the creativity of the mind. According to Mark Rose, it was a ‘long legal struggle’ that started with the first copyright law in

15 Malcom I Thomas says of the term ‘Luddites’ that letters threatening employers were signed by ‘Ned Ludd’ but the term probably came from an ‘ignorant youth’ from Leicestershire called Ludlam who rebelled against his father’s orders and smashed some knitting frames (1970:11)

39 England in 1710. It was, he says, essentially a commercial battle where all the stakeholders wanted to secure marketable rights to printed works and where all were prepared to press their case in court (Rose, 1994:3).

With the Internet revolution and the network society, the question of literary property has again become much debated and is central to today’s copyfights. The fundamental changes that digital technology has introduced have disturbed the social and economic mores of the print era. They have again raised the issue of the ownership of literary property and have given rise to new copyfights over the rights to digital works. Yochai Benkler considers the impact of the changes to be as important as the impact of the printing press and says they will:

likely have a significant effect on how we come to know what is going on in the world we occupy, and to what extent and in what form we will be able – as autonomous individuals, as citizens, and as participants in cultures and communities - to affect how we and others see the world as it is and as it might be. (2006:2)

Today’s copyfights are between the ‘owners’ of copyright works and the individuals and groups like the Pirate Party, who are critical of the over-reach of the ownership provisions of the current copyright regime. The fights have become an ongoing and costly contest for economic and cultural power based on ownership of, and access to, knowledge, information and entertainment, both nationally and globally.

The incumbent owners of copyright works comprise the very powerful media conglomerates of the film, music, software and publishing industries. As Peter Drahos points out, they are mainly corporations (‘a corporate elite’) that have acquired their property rights, not through creating them, but ‘through a process of buying, selling, merger and acquisition’ (Drahos and Braithwaite, 2002:15). They are represented publicly by industry associations such as the Record Industry Association of America (RIAA), the Software Protection Association, (SPA), the Business Software Association (BSA), the Motion Picture Association of America (MPAA), the American Publishing Association (APA) and their various international subsidiaries. Their members are the beneficiaries of a system of copyright law that has for 300 years provided them with the rights to manage the production and distribution of printed works. As detailed further in Chapter 4, all have well-funded lobby groups

40 that have demonstrably influenced and affected the laws and treaties that now govern the global knowledge economy.

Opposing them are the copyleft, comprising individuals, groups and social movements that see the copyfights in terms of the interests and issues that Moglen referred to as different forms of social organisation and different philosophies of human intellectual production. They include individuals such as Lawrence Lessig, Yochai Benkler, Eben Moglen, Richard Stallman, Kevin Kelly, James Boyle, Cory Doctorow, Jessica Litman, Pamela Samuelson, Peter Drahos, John Howkins, Michael Geist and many other scholars, lawyers and artists. Groups and social movements include musicians such as Negativland, the free software movement, the creative commons movement, the open access movement, the open source movement, Electronic Frontiers Foundation, Open Democracy, the Digital Future Coalition, research institutions in the UK and the US, coalitions of artists, musicians and other creators, and chapters of the Pirate Party.

What the copyleft have in common is a new vision – and practice – based on digital technology and the benefits that it can bring. While each has an area of particular interest, all allude to digital technologies providing new ways for people to collaborate and communicate globally. Emphasising the value of knowledge products and creative works as public goods rather than personal property, they see potential in new technologies for social and economic change. They refer to greater democracy, greater freedom of expression, economic growth, cultural benefits, creative liberty and benefits in education and social well-being, in both advanced technological societies and developing countries. What stands in the way of the vision and what they are prepared to fight against, is the use of copyright law by the big media conglomerates to inhibit digital innovation and prevent the sharing of its cultural benefits.

In this seemingly polarised culture clash, copyright law has emerged as the battleground, just as it did with the culture clash over printed works. Dan Hunter says that the tendency to think of the Internet and the Web as a ‘place’, has led to the ‘legal propertization of cyberspace’ and to judges, legislators and some legal scholars assuming that legal rules about property should operate in cyberspace as they do in the physical world. It follows that they tend to apply the same rules of ownership and protection against encroachment in both media (2003).

41 Thus copyright maximalists are lobbying governments and international bodies such as the World Intellectual Property Organisation (WIPO) to implement laws that strengthen and protect what they regard as their ownership rights (Drahos and Braithwaite, 2002:90-93). They are using the law to enforce those rights by prosecuting expensive legal action in countries throughout the world, even against the their customers. The EFF claims that by 2007, the recording industry alone had filed, settled, or threatened, legal actions against well over 20,000 individuals, mainly music fans and college students (EFF, 2007:1).

Copyleft theorists and activists groups like the Pirate Party are meanwhile coalescing into a potentially powerful force representing a new but identifiable digital culture. Their analyses of the dangers of the expansion of copyrights on the public domain and innovation are influencing broader communities, particularly in the areas of economics and the law. Warnings of the economic effects of the enclosure of the Internet commons and the potential ‘tragedy of the anti-commons’ where assets are owned and locked away from their optimal use, are common. James Boyle (2003[2]), Dan Hunter (2003) and Michael Heller (2008) have all raised the issue of the misuse of resources, caused by the friction of too much ownership. Identifying the reverse of the old idea of the ‘tragedy of the commons’, where overuse of common land proved inefficient, their comments make it clear that any extreme allocation of property rights may interfere with the efficient management of resources.

As will be established in subsequent Chapters, legal discourse is replete with the words and works of practitioners who have written about the current law’s inability to deal consistently and coherently with digital technologies and about the disrepute into which the law is falling as digital natives ignore or defy it. Copyleft lawyers and organisations like EFF have challenged copyright owners in court, and have tried to influence law and policy-makers through submissions and amicus curaie (friend of the court) briefs in important copyright cases. At the same time, millions of file- sharers have continued to flout the law and there is little evidence that the enforcement of more stringent and punitive copyright laws will alter their behaviour or modify the challenge that it presents to the law.

Since the English Statute of Anne was passed in 1710, the law has provided a forum for resolving, managing and balancing the myriad interests of creators, producers, distributors and users of knowledge products. Over the past 300 years it has been

42 altered and amended to accommodate changes in analogue technologies (such as radio, moving pictures, phonograms, photographs) and to preserve its often difficult role of balancing the interests of copyright owners, while enabling access to their works in order to encourage learning. And in the past decades, valiant efforts have been made to expand its provisions and extend its reach in response to digital technologies.

But digital innovation has altered the fabric of social organisation and created a culture that is proving antithetical to control and management by a law that is grounded in a different time and very different values and practices. As the existence of the Pirate Party demonstrates, digital technology and innovation have presaged a culture shift that is disturbing the industrial economy and challenging copyright law. The new digital culture raises serious doubts as to whether the law can continue to perform its 300 year old balancing act and resolve the ongoing copyfights.

3 Digital culture: ‘Download this song’

While the corporate content owners and their lawyers have been using the law to protect their property rights in the knowledge and information marketplace, new generations of digital natives, like the members of the Pirate Party, have been using digital technologies to form a new culture where knowledge and information are shared. Eben Moglen suggests that they have a more universal sense of the value of knowledge and information and less respect for laws that they consider outdated and irrelevant (2007:4). Yochai Benkler and others argue that the collaboration and sharing involved in their social, creative and professional dealings have produced a different attitude towards private ownership of knowledge, information and entertainment products (2006). Together, their different values and practices have created a new and identifiable ‘digital culture’.

Ten years ago, in his book Growing up Digital: The Rise of the Net Generation, Don Tapscott reported on the first generation of children to have grown up surrounded by digital media and within a culture of innovation, collaboration and networking (1998). While their parents were the recipients of the one-to-many broadcast media of radio and television, which he defines as hierarchical, inflexible and centralised, the ‘N- Generation’ were active participants in a new networked media which is ‘interactive, malleable, and distributed in control’ (26). Tapscott presented persuasive case studies that indicated that this new generation would take control of critical elements of a communications revolution. He predicted that the impact of their collaborative and non-hierarchical culture on society and the economy would be profound.

A decade on, his prediction is being realised. A digital generation and a new digital culture have transformed the economic structure and many of the social mores of the industrial era. Born into what was already becoming an information rather than an industrial economy, the digital generations are now immersed in ‘informationalism’, which Manuel Castells associate with the development of new technologies. Informationalism is characterised by three distinctive features of the new

44 technologies: (i) their self-expanding processing capacity in terms of volume, complexity and speed; (ii) their recombining ability; (iii) their distributional flexibility (2001:160).

Informationalism has immersed the digital generation in a networked economy where information, knowledge and entertainment goods and services are continually expanding, recombining and spreading. Their exploitation accounts for ever- increasing percentages of the world’s Gross National Product. For example, in his opening statement to the 2008 Organisation for Economic Cooperation and Development (OECD) Ministerial Meeting on ‘The Future of the Internet’ in Soeul, Korea, OECD Secretary General, Angel Gurría, pointed out that there were then about 1.3 billion Internet users in the world with the Internet economy accounting for some 20% of the OECD’s Gross Domestic Product (GDP). Global trade of ICT goods accounted for nearly 2 trillion US dollars in 2006.16 Such figures make it clear that the Internet is now central to economic development and that much of the global economy is tied to the Internet and to those who use it.

The social and economic impact of the digital generation has been explored in numerous studies from Tapscott (1998, 2008), Rifkin (2000), Howkins (2001), Himanen (2001), Vaidhyanathan (2001, 2004), Florida (2003), Castells (2004), Tapscott and Williams (2006), Benkler (2006), Leadbetter & Miller (2004), Leadbetter (2008), Lessig (1999, 2004), Bowrey (2005) and in journals and publications devoted to new media, communications, law, and the knowledge economy. Their culture has been probed by Negroponte (1995), Rifkin (2000), Rheingold (2003), Wark (2004), Lasica (2005), Huntley (2006), Heath (2006), Jenkins (2006), Bruns (2003, 2005, 2007[1], 2007[2], 2008), Flew and Wilson (2008), Palfrey and Gasser (2008), and in numerous articles and studies into what are variously called the digital generation, the N-generation, the Y-generation, the thumb generation, Generation C (for content, creativity and collaboration) and other terms that try to encapsulate their social context and cultural characteristics.

Tapscott calls them the echo boomers, the ‘echo’ of the television-watching baby boomers. Born between 1977 and 1997, the first digital generation was ‘a wave of

16 OECD Ministerial Meeting on the Future of the Internet Economy, 17 June 2008, http://www.oecd.org/document/43/0,3343,en_2649_37441_40852267_1_1_1_1,00.html, retrieved 28 July 2008

45 youth that coincided with the digital revolution’ (Tapscott, 1998: 22). By 1998 they were 30% of the population and the single largest demographic group in the US.17 In Australia, the Australian Bureau of Statistics (ABS) recorded that 5,645,916 so-called echo boomer babies were born between 1977 and 1997, just at the time home computers began to proliferate.18

By 1998, 44% of US households owned computers and 80 million Americans were using email (Tapscott, 1998: 23). At the end of 2006, the Pew Internet & American Life Project, ‘Parent and Teen Internet Use’, based on a November 2006 survey of 935 parents and the 12-17 year olds in their families, found that 93% of youth aged 12-17 were online and 94% of their parents were online (Macgill, 2007). A June 2007 Pew Internet & American Life Project Data Memo reported that 47% of adult Americans had broadband in their homes (Horrigan and Smith, 2007).

In the UK, the 2006 Gowers Review of Intellectual Property reported that ownership of home computers rose from 21% of households in 1991 to 58% in 2003. Broadband connections were at 31% by 2005 and were expected to reach over 70% by 2010 (Gowers, 2006).

In Australia in 1999, just under half (48%) of all households had access to a computer at home and 22 per cent had home Internet access.19 By 2006, nearly two-thirds (63%) of homes across Australia had Internet access.20 A study undertaken by the Australian Communications and Media Authority (ACMA) in 2007, when the echo boomers were aged between 10 and 30, found that digital technology had pervaded Australian society. Almost every Australian household had a computer and DVD player, nine in 10 Australian families had an Internet connection, and three-quarters of families had broadband access. Most families had three or more televisions, and three or more mobile phones (ACMA, 2007).

This is a remarkable transformation. In just over 20 years, computers and digital technology have been adopted by most of the populations of the US, the UK and

17 Using data from the US Census Bureau, Tapscott shows in the breakdown of US population that the ‘baby boomers’ were 29%, the ‘baby bust’ were 16%, ‘senior citizens’ were 13% and the ‘pre-boomers’ were 12%. 18 Australian Bureau Of Statistics (ABS), ‘Australian Historical Population Statistics’, cat. no. 3105.0.65.001; TABLE 36. 19 ABS. 8146.0; ‘Household Use of Information Technology’, Australia, 1999 20 ABS. 1370.0; ‘Measures of Australia's Progress’, Australia 2006

46 Australia, linking users to a global information economy and society. Tapscott and Williams, in their book Wikinomics, point out that previous technology-driven revolutions, like the electrification of industry, took closer to a century to unfold (2006:31).

But with digital technology, the speed and scope of change identified in Manuel Castell’s description of ‘informationalism’, have been so fast that there are dramatic differences in attitudes and skills between one generation and the next. The pervasiveness of the technology in all forms of human activity is exactly the characteristic that Castells saw as a requirement for a true technological revolution (2000:29). Thus for the echo boomers who have assimilated the new technologies, digital paraphernalia such as computers, software, social networks, MP3 players and mobile phones are a seamless part of daily existence. For their parents and grandparents, the ‘digital immigrants’ who are the current law and policy-makers, mastering video players and email are new skills that have had to be learned. Marc Prensky says that they always retain some ‘accent’ from the past. (2001[1]:1) Emphasising the difference between the generations and the revolution in communications technology, Tapscott quotes Alan Kay who famously said technology is ‘technology only for people who were born before it was invented’ (qtd. in Tapscott, 1998:8).

It is not surprising then that digital natives might organise their lives differently and have different values and attitudes from previous generations, not only to computers and technology but also to knowledge and information, and to other aspects of their lives. Those who have had Internet access at home from early childhood and access to computers at school are more at ease than their parents with a range of technological issues and platforms. The US National Endowment for the Arts (NEA) ‘Reading at Risk’ report found that they are less likely to be readers than their parents (2004). Those with high speed broadband to the home are more likely to use the Internet than radio, TV or newspapers to access news (Rainie, 2006:9). In fact, surveys over 7 years in Australia, indicate that the majority of today’s 12-24 year-olds will never read a newspaper and many will not be regular watchers of broadcast television (Wilson, 2008). According to Tapscott, when they do watch television, they treat it like background Muzak while they multi-task and ‘hunt for information or chat with friends online, or on the phone’ (2008:42).

47 The digital networks of Internet and mobile phone users have altered the patterns of social organisation for the communities that create and maintain local and global ‘friendships’ through search engines, SMS messaging and social networking sites like Facebook, with 110 million active users21 and MySpace, which tracking site Techradar claimed to have 120 million active users in January 2008.22 Huge numbers of them create and share videos on YouTube which reportedly has 6.1 million videos and 500,000 user accounts (Gomes, 2006). Many publish, exchange and store photographs on Flickr, an online community website owned by Yahoo! that hosts over 2 billion images. For these online communities, computers and digital technology mean access – to friends, interest groups, information, music, text, images, video and film. Describing the constant contact that young couples in Japan maintain through various mobile technologies, Henry Jenkins refers to their ‘tele-cocooning’ (2006:17). Australian interactive media specialist Jennifer Wilson, who refers to the digital generation as ‘Generation C’, concludes that they think there is nothing that they can’t get via their digital networks (2007). Surveys referred to elsewhere in the thesis suggest that the copyright issues involved in accessing and downloading digital material are not a major concern to net generation online users.

In terms of education, a number of researchers have found that the digital generation is probably the first to know more about accessing and using information than its teachers. Academic and blogger William Merrin goes as far as to suggest that teachers no longer share a common culture with their students. He asserts that in the broadcast era when teachers watched and studied TV, they had a right to teach it and that ‘in the future, unless we are downloading, sharing, ripping, burning, messaging, networking, playing, building and producing’, teachers will lose that right (2008, par.12). He also observes that current students are using new technologies and new media to reconfigure their own social relations and expectations and are producing entirely new modes of experience and knowledge in a world that teachers no longer share with them.

This gap between the experience and knowledge of students and teachers has introduced a radical shift in educational practice and considerable debate over

21 See http://www.facebook.com/press/info.php?statistics. Viewed 25 November 2008 22 See http://techradar1.wordpress.com/2008/01/11/facebookmyspace-statistics/. Viewed 25 November 2008

48 educational policy. Freed from the rote learning of facts and figures that can be quickly searched for and accessed on their home or school computers, young people are now liberated from the more linear conventions of thinking and learning associated with print. For the digital generation, learning by doing, preferably with others, is more familiar and productive than individual learning by rote or by passive listening in a quiet classroom. As Merrin pointed out, it is simply a fact that many students are more digitally literate than their teachers and that they value and practise different models of learning and education (2008, par.3). To the digitally literate, ‘doing’ the three-Cs of content, creativity and community are more interesting and rewarding than ‘learning’ the three-Rs of reading, writing and arithmetic.

As part of their five-year, $50 million digital media and learning initiative to determine how digital media are changing the way young people learn, play, socialise, and participate in civic life, Mizuko Ito and other researchers for The MacArthur Foundation looked closely at what the Foundation’s White Paper called ‘self-directed, peer-based learning’ The White Paper states:

In both friendship-driven and interest-driven online activity, youth create and navigate new forms of expression and rules for social behavior. In the process, young people acquire various forms of technical and media literacy by exploring new interests, tinkering, and “messing around” with new forms of media. They may start with a Google search or “lurk” in chat rooms to learn more about their burgeoning interest. Through trial and error, youth add new media skills to their repertoire, such as how to create a video or customize games or their MySpace page. Teens then share their creations and receive feedback from others online. By its immediacy and breadth of information, the digital world lowers barriers to self-directed learning. (2008:1)

The White Paper notes that self-directed learning encourages young people to ‘geek out’ and to dive enthusiastically into a topic or talent, often with the goal of improving their craft and gaining a reputation among expert peers (2). But, as a form of education, it is denounced by many traditionalists who see games as an educational ‘dumbing down’ and the cut-and-paste pastiche of digital students as plagiarism and theft. Andrew Keen decries the younger generation of intellectual ‘kleptomaniacs’ who think that their ability to cut and paste a well-phrased thought or opinion makes it their own (2007: 23). Not for him the notion that Isaac Newton expressed in his famous aphorism: “If I have seen further it is by standing on the shoulders of giants.”

49 Rather, Keen opines that democratised Internet culture has seriously compromised the idea of original authorship of intellectual property so that no-one now knows who owns content. It follows that if the owners of content cannot be identified, the law cannot protect it from digital pirates.

Other less traditional commentators have embraced the digital challenge and view digital learning, even forms of plagiarism, as new literacies that are entirely appropriate in a digital culture where students explore and extend the capacity of computers and networks to learn and play. For example, Ken Robinson, who produced the 1999 ‘Robinson Report’ on creativity, education and the economy for the UK government, suggests that traditional schools and schooling kill the creativity that children now require for future success (2006). He concludes that digital learning should be encouraged and used to extend the skills and innovation required for the new economy. Director of the MIT Comparative Media Studies Program, blogger and advocate of games culture, Henry Jenkins, concurs saying:

A growing body of scholarship suggests potential benefits of these forms of participatory culture, including opportunities for peer-to-peer learning, a changed attitude toward intellectual property, the diversification of cultural expression, the development of skills valued in the modern workplace, and a more empowered conception of citizenship. Access to this participatory culture functions as a new form of the hidden curriculum, shaping which youth will succeed and which will be left behind as they enter school and the workplace. (2006)

The independent seeking, creating and sharing of digital materials as part of the social and educational experience of digital natives contrasts sharply with the experiences of previous generations of students who received their wisdom from teachers and fixed text. In a follow-up study of the net generation, Tapscott refers to the broadcast model of teaching for a mass-market economy giving way to interactive learning, just as the mass media itself is being overtaken by the interactive models of digital communication (2008). With the net generation, he says that teacher broadcasters, like TV broadcasters, are losing their audience and that there is ample evidence that collaborative, interactive learning is both better suited and of greater educational benefit to digital natives than one-way broadcast learning (131).

There is clearly support for a new pedagogy for the digital classroom and there are now numerous studies of its successful application within individual classrooms and

50 entire schooling systems (Palfrey and Gasser, 2008). Common features are an emphasis on student-centred learning and the use of digital technology to explore and solve problems. Palfrey and Gasser refer to the transformation of learning particularly in the way students gather and process information (239). ‘Research’ for contemporary students is likely to mean a Google search rather than a library search and assistance is more likely to come from Wikipedia than a reference librarian. ‘They rarely if ever buy the newspaper in hard copy: instead they graze through copious amounts of news and other information online’ (239).

Palfrey and Gasser acknowledge that the implications of these changes over the long term are unknown. But in the short term, the easy access to ideas and materials through the ‘virtual’ medium of the Internet may well explain, at least in part, the tendency of digital natives to view such materials and networks as public goods to be shared, rather than the private property of individual authors or multinational corporations.

Australian author Rebecca Huntley says because the digital generation are connected, often 24 hours a day and seven days a week through mobile phones, the Internet and their web 2.0 social network sites, their mastery of and reliance on technology have altered the way they view time and space (2006:16). In her study of 50 young people around Australia, she notes that time has contracted for the digital generation. Communication is immediate. In what has become known as ‘multi-tasking’, it is often in several forms of media at the one time. The digital generation she researched are quick to adopt new digital gadgets and are impatient with rules and barriers that are put in their way. They expect ‘things to happen quickly’ (18).

In terms of space, their sharing of culture such as movies, fashion and music on a global basis has lessened the distances between issues, places, the national and the international, and their personal and public lives. Palfrey and Gasser in Born Digital say that the Internet has provided digital natives with access to deeper, richer information about other cultures and is creating ‘global citizens’ (2008:27). Tapscott says that the 290% increase worldwide in Internet usage since 2000 has created a shared ‘global culture’ with surprising similarities among digital natives across countries (2008:23).

51 One of the similarities is their approach to privacy, which differs markedly from that of their parents and grandparents (Palfrey and Gasser, 2008:7). Digital natives seem unconcerned that they are making so much personal information about themselves available online. Gasser speculates that ‘the dividing line between the public and private, in digital space, is blurred, if not disappearing altogether’ (282). Users of the Internet are leaving traces in cyberspace that are ‘a lot like a tattoo’ in that they may not be erasable in the future (53). But whether they are on their mobile phones or at their computers, digital natives have the impression that their actions are self- determined and that even their global communications are part of their personal networks, not connected to the larger commercial sphere where international laws govern their behaviour.

It has been noted that along with their changed notions of time and space, digital natives also have a range of digital skills and abilities and an enthusiasm for digital creativity with both content and software. From social networkers on the world wide web to the collaborative ‘hackers’ who volunteer to develop open source and free software, members of digital culture often use their skills to create products for their personal edification and as a contribution to a social and Internet commons, rather than for purely for commercial reasons. Tim Berners-Lee, the English computer scientist who is credited with inventing the World Wide Web (WWW) is such an enthusiast. Berners-Lee ensured that the WWW was made usable and available without proprietary restrictions: he claimed no fees or royalties for his invention.

Some researchers have identified this as a form of ‘gift culture’, not unlike the traditional gift economies where social and intangible rewards are important in the exchange of food and other resources. It signifies a very different society from one where ownership and protection of private property is paramount. In his book The Gift, Lewis Hyde uses history, anthropology and literature to explore gift cultures, particularly in relation to creativity and art (1983). In a recent study of the question of literary property, author Daniel B Smith says Hyde was trying to reconcile the value of doing creative work with the exigencies of a 20th century market economy (2008).

In The Gift, Hyde refers to the ‘market triumphalism’ of the late 20th century that has seen a successful move to commercialise a long list of things once thought to have no price. Mentioning broadcast spectrum and drinking water, he says natural abundance has been commercialised. Visiting the same fate on cultural abundance, universities

52 now have ‘technology transfer offices’ to sell knowledge rather than simply disseminate it. The Walt Disney company now owns the folk culture of ‘Snow White’ and ‘Pinnochio’ and the ‘ever-expanding reach of copyright’ has commodified art and ideas, removing more and more of them from the public domain. Ideas, he says do not circulate freely when they are treated as commodities (84).

It is in this context that Hyde has updated his 1983 book with an ‘Afterword’ to the 2007 edition. In it he adds material about the Internet, identifying it as one place where numerous projects have the ‘structures and fertility of gift communities’ where creativity and art can move and where status, prestige or esteem may take the place of cash remuneration (293). He mentions the open source software movement, and the Public Library of Science, the web-based publishing venture that has ‘gifted’ its online journals, making them available without permission as long as attribution is made.

The labels ‘gift culture’ and ‘gift communities’ can be readily connected to the pervasive effects of digital technology on culture, especially in the collaborative and sharing aspects of digital creativity. Numerous other studies have also explored this dimension of digital culture. For example, a report on digital lifestyles by the Smart Internet Cooperative Research Centre in Australia refers to ‘Millennials’ who form communities of passion, not commerce, with ‘an entirely new understanding of authorship and content production’ in video, games journalism, blogs, podcasting, web mashups and knowledge production (Sharp, 2007). The Pew Internet Report on ‘Teens and Social Media’ found that 64% of online teens aged 12-17 have participated in at least one of a wide range of content-creating internet activities, just for pleasure (Lenhart et al, 2007). The free and open source software movements claim thousands of unpaid ‘hackers’. These are the programmers who work voluntarily in numerous countries to continually develop products such as the open source Linux computer operating system, the Apache web server program, which runs an estimated half of the world's websites, and Mozilla’s ‘Firefox’ web browser which, according to the Smart Internet Technology CRC report on user-led innovation, held nearly 30% of market share across Europe in 2008 (Sharp, 2008). Peter Sheahan in his book Generation Y refers to ‘socialpreneurs’, the socially and culturally aware young people for whom philanthropic and social projects are as important as share price and market share (2005). Such a term also describes the community of 50,000 volunteers

53 who contribute to the open-edit online encyclopaedia Wikipedia for no financial return. And it includes the estimated 4.5 million volunteers in the Internet-based community who participate in the distributed grid-computing project [email protected]

John Perry Barlow connects this voluntary participation of the digital generation in creative intellectual production not just to a new dimension of gifting within digital culture but to the ‘the inexplicable pleasures of information itself, the joys of learning, knowing, and teaching… playing with ideas’ (1994). Reflecting on the idea of ‘information as its own reward’, he considers the changing role and significance of information within digital culture. He points out that in the information economy, information acquires intrinsic value and that rather than working for nothing, digital creators are being paid in the value in the information itself. Castells too refers to this dimension of the information society saying that with informationalism, ‘information itself becomes the product of the production process’ (2000:78).

These observations reinforce the claim that digital culture is developing an attitude towards information and knowledge that is at odds with the proprietorial model that developed in association with the print era. Yet, non-commercial sharing and voluntary participation are fundamental features of digital culture and digital interactivity generally. Viewed by copyright defenders as an assault on copyright law and on the property rights that provide stability and order to the information marketplace, they can also be regarded as an alternative form of social organisation and an outcome of digital technology itself.

Janet Abbate, in her study of the invention of the Internet, offers some explanation for the origins of this less proprietorial attitude by connecting sharing and collaboration to the structure and architecture of the Internet (1999). Initially, the Internet and its predecessor, the ARPANET, were created by the US Department of Defence’s Advanced Research Projects Agency (ARPA). The ARPANET was designed and built mainly by scientists who, she says, ‘incorporated their own values of collegiality, decentralisation of authority and open exchange of information into the system’ (5). Designed as a decentralised medium that could continue to function even if one its nodes was damaged, the ARPANET facilitated horizontal rather than

23 SETI@home is a distributed computing project using Internet-connected computers, hosted by the Space Sciences Laboratory, at the University of California, Berkeley, in the United States. SETI is an acronym for the ‘Search for Extra-Terrestrial Intelligence’.

54 vertical communication. ARPA’s computer experts made little distinction between producers and users as they built the network for their own use. Abbate refers to a ‘feeling of community’ among APARNET users and, as early as 1999, she noted that as the structure of the Web developed, links between sites were made laterally, allowing individuals to continue to both produce and use information (106). While its development did not simply unfold with any sort of technological determinism, and was in fact argued over and contested at various stages, the very structure of the non- hierarchical form of networked communication laid a foundation for the different form of social organisation and the decentralised system of information sharing that the digital generation have built on.

In his book Smart Mobs, Howard Rheingold also ties digital culture’s particular form of social organisation to the Web and the Internet (2003:xii). His smart mobs are people who are able to act in concert even if they don’t know each other because they carry ‘always on’ devices. The devices possess both communication and computing capabilities and Rheingold considers that the collaboration and sharing of the smart mobs are related to the cooperative social contracts that were built into the basic architecture of the devices through the collaboration of their developers.

Rheingold connects this collaboration that fostered technical innovation to the fundamental social technology of digital natives who compete ‘to improve the value of their shared tools, media and communities of practice’ (47). Referring to the original hacker culture, (meaning the enthusiastic programmers who created computer systems) and the hacker ethic that aimed at creating a resource that would benefit all, he also alludes to the Internet’s element of ‘gift culture’ because of its emphasis on social and intangible rewards, such as reputation among one’s peers, rather than direct economic reward (48). Pekka Himanen adds to the evidence of this different social dimension in his study of the hacker ethic of the early 1960s and quotes the hackers’ jargon file which defines hackers as people who program enthusiastically and for whom ‘information-sharing is a powerful positive good, and it is an ethical duty of hackers to share their expertise….’ (2001:vii).

The sharing dimension of the hacker ethic was fundamental to the free and the open source software movements, which have become significant alternatives to the proprietary software models that the early hackers resisted. Developed within the software sharing communities by early programmers, free and open software

55 programs are associated with the hackers who contributed their expertise, not for profit but for social and ethical reasons. This is encapsulated in the basic ‘sharing’ philosophy of Richard Stallman, who is often referred to as the father of the Free Software Movement. He said: ‘Computer users should be free to modify programs to fit their needs, and free to share software, because helping other people is the basis of society’ (2002:16).

In her article ‘Discourses of Danger and the Computer Hacker’, Deborah Halbert contends that hackers were not always portrayed as computer criminals. In the ‘golden age’, when hacking was related to innovation, style and virtuosity and there were minimal proprietary interests in computer software, hacking was relatively non- problematic (1997). She claims students particularly were fascinated with computers as empowering tools and spent hours writing programs, not for monetary value but to see what could be accomplished. It was only when their notion that ‘information wants to be free’ clashed with mainstream economics or when they deliberately broke into defence and other security systems that the term ‘hacker’ became tainted with a criminal element, just as the term ‘pirate’ is today.

*****

The social dimensions of digital culture such as hacking, sharing, collaboration, volunteering and digital innovation have had a significant impact on a market economy where supply and demand economics have previously played a major role in allocating resources and determining their price and value. Wired and connected across time and space, many members of digital culture have created and shared works outside of the traditional commercial marketplace, making cultural phenomena such as crowdsourcing, citizen journalism and viral marketing into legitimate ways of producing and distributing user-made digital products (Howe, 2006).24

This has meant an exponential increase in the amount of information that is being shared in digital format via the networks and much of it is free. J D Lasica describes it as ‘a historic shift of power from those who horde information and ideas to those who want to share them’ (2005:viii). In terms of the economics of the market, Kevin Kelly points out that in a regime of superabundant free copies, copies lose value and the

24 In his article ‘The rise of crowdsourcing’ (wired.com, Issue 14, 6 June 2006), Howe defines crowdsourcing as the application of Open Source principles to fields outside of software.

56 economic model built on protecting copies is collapsing. Copies, he says are no longer the basis of wealth:

Now, relationships, links, connections and sharing are. Value has shifted away from a copy toward the many ways to recall, annotate, personalize, edit, authenticate, display, mark, transfer and engage a work. (2006:9)

With digital tools and a variety of media to create and repurpose works, value now comes from digital sharers interacting on a one-to-one and many-to-many model across the networks. Within digital businesses, linked networks are replacing the assembly line allowing digital creators and workers to collaborate on new ways to do business as well as appropriate much of the commercial cultural space that was once the exclusive domain of the big corporations. But both the sharing and the collaboration are problematic as models when, as Kelly says, ‘the laws governing creating and rewarding creators still revolve around the ‘now-fragile’ model of valuable copies’ (2006:9).

Yochai Benkler sees this change in the way works are produced and used as ‘deep and structural’ particularly in that much of what he calls ‘commons-based peer production’ takes place outside of the control of the traditional copyright holders – and often outside the laws which were implemented to protect their property interests (2005:3). He too recognises that this affects the value of market-based copyright works by providing alternative goods and services that, while they are of variable quality, are easily accessible and free within the communities that produce them.

Commons-based peer production is moving much of the innovation and creativity associated with producing cultural works into the hands of digital creators, whom Charles Leadbetter and Paul Miller call ‘pro-ams’ (2004). They are the innovative, committed and networked amateurs working to professional standards who are producing alternative streams of digital goods and services in competition with traditional producers. Leadbetter and Miller claim they are having a huge effect on the economy and society (9).

Axel Bruns identifies them as ‘produsers’ who both produce and use information. Like the technology itself, which Castells says is continually expanding, recombining and spreading, produsers interact with information in a collaborative and continuous building and extending of existing content (2007[2]:68).

57 Bruns has closely studied what he calls their ‘produsage’, or distributed creativity. As a concept, he says it stands in direct contrast to traditional modes of industrial production where the hierarchical value chain involved the producer, the distributor and the end user. He defines produsage as ‘a mode of collaborative content creation’ … where, … ‘the user acts as a hybrid user/producer, or produser, virtually throughout the production process’. He speaks of produsers being engaged in ‘an ongoing, perpetually unfinished iterative, and evolutionary process of gradual development of the informational resources shared by the community’ (Bruns, 2008:20).

Bruns says of produsage, that it is a move from industrial content production towards community-based intercreativity that holds potential for severe and controversial disruptions to the established status quo. Not only does it render the linear industrial value chain obsolete, it ‘fatally undermines what is perhaps one of the most lasting assumptions of the industrial age – that products exist in discrete versions and revisions, able to be controlled by their producers’ (2007[2]:70).

What is ‘prodused’ in Bruns framework are not products in the traditional sense; separate entities or commodities that can be packaged and distributed. Nor are they always items that can be sold. They may have no attributed owner or producer and no middleman acting as distributor. As with Wikipedia, content at any point in time is simply a version of ‘knowledge’, which itself will be altered and updated by the produsers who access, edit and share it in a process of continual revision and correction. Henry Jenkins says that this is shifting what counts as knowledge and what counts as expertise and that Wikipedia itself has been obliged to develop a set of community norms about knowledge sharing (2006:265). He refers to the Wikipedia ‘neutral point of view’ (NPOV) policy that encourages an ‘iterative’ process by which opposing viewpoints compromise on language and presentation to produce entries that ‘present multiple viewpoints fairly’, and which trust reader’s competence to form their own opinions.25 He says that the process encourages a sense of mutual obligations and shared expectations about what constitutes good citizenship within a knowledge community and that it might be called a new ‘moral economy of information’ (266).

25 See Wikipedia website, ‘Neutral point of view’. Available at http://meta.wikimedia.org/wiki/Neutral_point_of_view

58 This permanent process of invention and innovation in which media forms are constantly reconfigured, obsolesced and revolutionised has been described as the era of permanent ‘beta’ in which, not just software, but all digital forms are tested and continually modified and improved or upgraded (Merrin, 2008). They are, in effect, works in progress and transient versions in the process of knowledge-making.

These characteristics of produsage constitute a major problem for a copyright regime that is based on the protection of commodities ‘in material form’ that are discrete and finished products, created and owned by identifiable entities. John Perry Barlow made the observation in 1994 that digital technology was detaching information and knowledge from the physical plane ‘where property law of all sorts has always found definition’ (2). Clearly without this physical plane it is harder to maintain a connection between the materials being borrowed and shared and a particular owner or creator. When they are created by a community, as with Wikipedia, they become a form of community-developed knowledge and this perhaps encourages produsers to value them more as public goods than private property.

Further, these digital materials are what economists term ‘non-rivalrous’ goods. That is, they may be consumed by one person without preventing simultaneous consumption by others. Produsers are aware that their use of these goods does not destroy or damage them. Nor does it deprive anyone else of their use. In fact it spreads their use through networked communities where it is not surprising that produsers who access them in a non-commercial context might not immediately regard their use of these ‘detached’ and decentralised forms of knowledge and information as stealing. Palfrey and Gasser found in their focus groups with young people that many digital natives believed that sharing music and movies online was acceptable because it did no harm (2008:138). Portentously for copyright law, their subjects saw no direct link between copying online materials and causing loss to an owner or creator.

Produsage, sharing, helping and contributing skills and expertise on a not-for-profit basis are a paradox in the commercial market place and a conundrum for the laws that protect it. They are part of digital culture and are inextricably connected to its user- centred innovation where commercial and legal considerations are less important than opportunities to engage in new forms of intercreativity. Because they so often take place outside of the control of the large corporations and the markets they manage,

59 Eric von Hippel, Professor of Management and Innovation at MIT, proposed that they would have a significant effect on the future of the media, software and entertainment industries that could no longer rely on their business models to retain their monopoly control over industrial mass media structures (2005). They certainly pose a problem for copyright law in that they make it increasingly difficult to discern a property relationship between a digital work and an individual or corporate creator or ‘owner’.

*****

In the context of collaboration and sharing on digital networks, the rapid adoption by the digital generation of P2P Internet file-sharing is readily explained. As Abbate emphasised, sharing was the fundamental model on which the Internet was based and was encoded in its early structure and in the experience of its users. But sharing, like hacking, acquired a new significance when it started to threaten the business models of the music industry. What digital culture called sharing, the copyright holders of the music industry called piracy and it was file-sharing and the notorious Napster legal case that defined the digital copyfights and confirmed copyright law as their battleground.

As mentioned in Chapter 1, Napster was a software program that searched, indexed and aggregated MP3 music files. It was an innovative use of digital technology that allowed music fans to swap and share their music on the Internet, as they had always done in the physical world. The service became extremely popular with a reported 80 million registered users accessing, listening to and sharing recorded music without paying the record companies or the artists a fee for doing so (King, 2002).

From the perspective of the record industry, Napster and P2P file-sharing had the potential to completely undermine the record labels’ businesses and in one of the early legal battles between the old and new cultures, the Record Industry Association of America (RIAA) took legal action in 2000 against Napster and Fanning.26 The big media companies behind the RIAA argued that Napster facilitated widespread copyright infringement and that laws that had allowed some legitimate recording and sharing of analogue works should not apply in the digital environment where perfect copies could be easily made.

26 A&M Records. Inc. v. Napster. Inc. 114 F. Supp. 2d 896 (N. D. Cal. 2000).

60 The decision on 2000 of Ninth Circuit U.S. District, Judge Marilyn Hall Patel, supported their arguments and Fanning’s free service was eventually closed down in July 2001. By that time, intense lobbying by the entertainment industries had resulted in the passing of the US of the Digital Millennium Copyright Act (DMCA) 1998. The Act included new legal provisions to protect the content industries and to combat file- sharing, which was publicly declaimed as outright piracy, perpetrated by digital thieves and Internet pirates (Gillespie, 2007:113).

The Napster decision and the provisions of the DMCA did not however, put an end to file-sharing. Nor did it seem to have much effect on the rapidly evolving patterns of digital culture. Commentator Brad King pointed out in an article titled ‘The Day the Napster Died’, that rather than ending file-sharing, ‘[T]he intersection of Fanning, the RIAA, media conglomerates and the open-source community created a laundry list of unforeseen consequences, the most profound pitting of individual freedom versus corporate interests’ (2002: par.9).

Reactions from digital enthusiasts to the Napster decision are well-documented in books, blogs and journals. Open-source developers, incensed by the heavy-handed approach of the RIAA and the interference in the still somewhat utopian cyberspace, continued to develop alternative file-sharing programs. Napster was replaced by more powerful (and more anonymous) P2P models like Aimster and AudioGalaxy, then by Morpheus and Kazaa, Gnutella, Limewire, eDonkey and BitTorrent. Millions of people who had experienced downloading with Napster continued to seek and use file-sharing programs, establishing a visible and fundamental rift between the law and digital culture. It seemed that Internet downloading and file-sharing would prevail even if Napster ‘died’.

In his book Darknet: Hollywood’s War Against the Digital Generation, J D Lasica refers to the ‘Napster ethos’ and makes the case that the marketplace rebellion against the music industry’s excesses developed into ‘a new credo, a way to bypass unsound laws like the DMCA, a social phenomenon that sees borrowing and sharing as among the most harmless and beneficent, and basic of human desires’ (2005:150). Using his concept of the ‘darknet’ where digital creativity is carried on below the legal radar, he surmises that, regardless of the law, produsers will continue to form an ‘outlaw culture’. Just as the decentralised early Internet was designed to route around disabled nodes, Lasica suggests that networked digital creators will route around laws they see

61 as unreasonable. His theory about file-sharing as a significant social phenomenon is supported by writer and academic McKenzie Wark. In an interview about his book The Hacker Manifesto he refers to the rampant file-swapping that ordinary people have initiated as ‘a whole social movement’ (2004).

Further evidence of the diverging values of digital culture is encapsulated in a hit song from musician MC Lars. The track, ‘Download this Song’ is from his album, The Graduate, which was released in 2006 under Lars’ own record label, Horris Records.

Lars identifies himself on his website as a ‘Post Punk laptop rapper’ and a member of the i-generation. He studied English at Stanford University in California and went on to study at Corpus Christi College at Oxford University in England. He releases his work directly to the Internet through his own label and encourages file-sharing to promote his music. ‘I think I’ve shown that you don’t need to have mainstream exposure to get a dedicated fan base, especially when you have things like MySpace and LimeWire as creative ways of marketing yourself’, he says on his website.27

Lars penned the lyrics for ‘Download this Song’ in 2006. It stands as a digital generation critique of the record industry (‘Mr Record Man’) and the outdated business model that sues file-sharers (‘little kids downloading hit songs’), while artists themselves are discovering new ways of creating works and reaching their audiences.

Download This Song (lyrics)

It’s 2006, the consumer’s still pissed Won’t take it anymore so I’m writing a list Don't try to resist this paradigm shift The music revolution cannot be dismissed $18.98 Iggy Pop CD? What if I can get it from my sister for free? It’s all about marketing Clive Davis, see? If fans buy the shirt then they get the mp3 Music was a product now it is a service Major record labels why are you trying to hurt us? Epic’s up in my face like, “Don’t steal our songs Lars,” While Sony sells the burners that are burning CD-R’s So Warner, EMI, hear me clearly Universal Music, update your circuitry

27 See hhtp://www.mclars.com.

62 They sue little kids downloading hit songs They think that makes sense When they know that it’s wrong

Hey Mr. Record Man The joke’s on you Running your label Like it was 1992 Hey Mr. Record Man, Your system can’t compete It’s the New Artist Model File transfer complete Download this song! Download this song! Download this song!

I know I’m rhyming fast, but the message is clear You don’t need a million dollars to launch a career If your style is unique and you practice what you preach Minor Threat and Jello both have things to teach! I’ve got G5 production, concept videos Touring with a laptop, rocking packed shows The old-school major deal? It makes no sense Indentured servitude, the costs are too immense! Their finger’s in the dam but the crack keeps on growing Can’t sell bottled water when it’s freely flowing Record sales slipping, down 8 percent Increased download sales, you can't prevent Satellite radio and video games Changed the terrain, it will never be same Did you know in ten years labels won’t exist? Goodbye DVD’s, and compact disks!

Hey Mr. Record Man, What’s wrong with you Still living off your catalogue From 1982 Hey Mr. Record Man, Your system can’t compete It’s the new artist model File transfer complete Download this song! Download this song! Download this song!

You know, we just wanted a level playing field. You’ve overcharged us for music for years, and now we’re Just trying to find a fair balance. I hate to say it, but… Welcome to the future.

Download this song! Download this song! Download this song!

Hey Mr. Record Man The joke’s on you Running your label Like it was 1992 Hey Mr. Record Man, Your system can’t compete It’s the New Artist Model File transfer complete. (Available at www.lyrics.com)

The social and legal impact of the file-sharing issue was demonstrated in an event that took place after the release of ‘Download this Song’. MP3.com journalist Jim Welte wrote that Lars received an email on his web forum from Elisa Greubel, a 15-year-old fan, whose family was one of many being sued by the RIAA for file-sharing (2006). The Nettwerk Music Group, Canada’s largest independent record label and artist management company with whom Lars was associated, responded by stating that it would support the Greubel family in the RIAA case against Mr Greubel for downloading nine songs. Nettwerk said it would pay all of the family’s legal fees as well as any fines if it lost its battle with the RIAA. In a clear example of the divisions that were emerging between an old culture and a new one, and between pro-copyright lawyers and defence lawyers, Welte quotes from the statement released by Greubel’s attorney:

Since 2003, the RIAA has continually misused the court and legal system, engaging in misguided litigation tactics for the purpose of extorting settlement amounts from everyday people--parents, students, doctors and general consumers of music. … In doing so, the RIAA has misapplied existing copyright law and improperly employed its protections not as a shield, but as a sword. (qtd. in Welte, 2006)

That the sword rather than the shield was the chosen weapon of the record industry and other big media corporations was attested to by the many other lawsuits brought

64 by the RIAA against file-sharers. Clearly the RIAA did not see borrowing and sharing of digital files as harmless and beneficent. They began suing music fans in 2003 for unlawfully downloading songs with a campaign of lawsuits against individuals who were sharing music on P2P networks. Between August and September 2003 they issued over 1500 subpoenas to Internet Service Providers (ISPs) under a new provision in the DMCA that allowed a copyright owner to issue a subpoena to an ISP seeking the identity of subscribers accused of copyright infringement.28 They then announced the first 261 lawsuits against individuals identified under the subpoenas. In 2007, the Electronic Frontier Foundation (EFF) reported that the RIAA and its member companies admitted to suing over 18,000 individuals. The EFF also kept a record of many who settled their cases for amounts ranging between $3,000 and $11,000 because they could not afford to pay lawyers to argue their case in court (EFF, 2007).

In 2004, the International Federation of the Phonographic Industry (IFPI) also launched internationally orchestrated law suits against alleged file-sharers in Europe and Canada. But legal action against the file-sharers seemed to have little overall effect on curbing unlawful downloading. Palfrey and Gasser claim it was a public relations disaster for the record industry: ‘An industry is unlikely to gain popularity by suing thousands of people for acts that a significant percentage of a society doesn’t consider to be “problematic”’ (2008:141). Others argued that it was counterproductive and may even have even encouraged digital natives to try file-sharing (von Lohmann, 2004; Philipson, 2000). While there is evidence from one Pew Internet & American Life Study that 14% of Internet users claimed that they no longer downloaded music files, there was evidence in the same study that the actual number of downloaders had increased since 2003.29 Other studies also indicated that P2P file- sharing increased after the law suits were implemented (Rainie et al, 2004). Big Champagne, a respected market research firm specialising in P2P networks, found through its network monitoring that the amount of traffic on P2P networks doubled between September 2003 and June 2005 (2005).

28 In 1998, the Online Copyright Infringement Liability Limitation Act added section 512.S 512h of DMCA, subsequently (17 USC §512) 29 Pew Internet. Media Release. 25 April, 2004. Available at .

65 Even taking into account an overall increase in Internet usage owing to increased broadband connectivity, a doubling in the traffic on P2P networks at a time when the RIAA and IFPI were suing downloaders and embarking on programs to ‘educate’ them about piracy, is an indication of a hardening of the division between digital culture and the content industries. This was no doubt fuelled by media reports that the record companies were valuing the damages for downloading files at $750 a track while there was evidence that their loss would be closer to 70 cents (EFF, 2007). This may well be part of the explanation for the EFF reports of file-sharers quite openly defying the cease-and-desist notices that were sent to them.

A further indication of this defiance and the widening gap between the values of the two opposing cultures was the ‘Grey Tuesday’ event. On Tuesday 24 February 2004, many of the music digerati engaged in a day of protest in response to record label EMI claiming breach of copyright and issuing an order to disc jockey ‘Danger Mouse’ to cease distributing The Grey Album. The album was a remix of an authorised a cappella version of rapper Jay-Z’s The Black Album, combined with instrumentals created from unauthorised samples from The Beatles’ The White Album, over which EMI held copyright.

The protest involved the deliberate posting of The Grey Album on websites for 24 hours for free download. One focus of the protest was support for the sort of sampling that Danger Mouse had undertaken to create The Grey Album. Far from seeing it as piracy or plagiarism, many digital musicians regarded the sampling as a contemporary form of transformative appropriation, a traditional characteristic of global music production (Demers, 2006:8).

Another focus was the heavy-handed approach of the record companies. Musicologist and academic, Joanna Demers, argues that the threat to sue the disc jockey for millions of dollars for unauthorised use of samples from The White Album was disproportionate to the economic harm that might have eventuated. She suggests that the DMCA cease-and-desist letters, also sent to the ISPs of the file-sharers, were more a form of censorship than a legitimate use of the DMCA to combat piracy (8). Demers contends that the legal provision of the DMCA used against the ISPs, pressuring them to cut off service to their users, was theoretically intended to curb mass copying and piracy, not to prevent the unauthorised transformative re-use of material.

66 The Grey Tuesday protest was organised by an activist group called ‘downhillbattle’ who were supported by hundreds of websites that hosted the album for download. Over 100,000 copies were downloaded on Grey Tuesday (more than 1 million individual tracks) giving an indication of the level of protest against the actions of the record industry – and the speed with which such a protest could be organised on the Internet. One of the participating websites, www.illegal-art.org reported it this way:

THE GREY ALBUM LEGAL BATTLE SUMMARIZED

DJ Danger Mouse remixed the vocals from Jay-Z’s The Black Album and the Beatles' White Album and called his creation The Grey Album. He sent about 3,000 promo copies out, and was soon served with a cease-and-desist notice from EMI, who owns the rights to the White Album master. Danger Mouse complied with EMI's order, but Stay Free! (sponsors of the Illegal Art Exhibit) and other fans and activists continued distributing the record over the Internet. EMI sent legal threats to many of us as well but later backed down. Next, SONY/ATV -- who owns the rights to the Beatles' compositions -- stepped in and sent our internet service provider a DMCA takedown notice (3/1/2004). We secured legal representation from the EFF, moved our website to the Online Policy Group (a free-speech ISP), and responded to Sony with this letter. Fortunately, Sony also dropped the case and The Grey Album remains safely online.30

It then links to other reports on Grey Tuesday, followed by the statement:

DOWNLOAD THE ALBUM

Grey Album.torrent courtesy of Bannedmusic.org. You will need BitTorrent software to download this.

The letter to Sony referred to in the illegal-art.org report reads:

Stay Free!'s response to legal threats by SONY/ATM regarding The Grey Album:

Jonas Kant, Director, Business Affairs Sony/ATV Music Publishing LLC 2100 Colorado Ave. Santa Monica, CA 90404

Our Internet Service Provider, the Internet Archive, forwarded to me your letter of March 1 concerning the Grey Album recordings on our website.

30 Viewed 28 November 2007

67 Pursuant to our rights under the law, we posted the Grey Album and will continue to post it as part of our ongoing work on the Illegal Art Exhibit. Since August of 2002, the exhibit has served to educate the public on the impact of copyright law--and overreaching legal claims--on free speech. Exercising our fair use rights, we have allowed the public to experience for themselves works such as the Grey Album that have been challenged on intellectual property grounds.

Through a traveling visual art exhibit (SF MOMA Artists Gallery in San Francisco, NEXUS in Philadelphia, 313 Gallery in New York, etc.), university lectures (featuring Lawrence Lessig and Siva Vaidhyanathan, among others), film screenings, live music performances, a special copyright issue of Stay Free! magazine, and, of course, the web site, Illegal Art has established a solid record of criticizing copyright owners' attempts to stifle speech. Keeping this low-budget operation going was no small feat, and we couldn't have done it without the major (and overwhelmingly positive) coverage received from The New York Times, Washington Post, Chicago Tribune, Salon, ABC- TV, NPR, Wired, Boston Globe, and the Philadelphia Enquirer, among others.

We are hopeful that this matter can be resolved amicably. However, should you elect to proceed with legal action, please understand that Stay Free! will vigorously defend(s) its rights.

Regards, Carrie McLaren Executive Director, Stay Free! (Illegalart website. Available at http://www.illegal-art.org/audio/grey.html)

Emphasising digital culture’s fight against the impact of copyright law and what they termed the ‘over-reaching legal claims on free speech’, Stay Free! used the fair use provisions of US copyright law to publicly challenge the law and the record industry.31 North America Editor of the international newsletter ‘Music & Copyright’, Sam Howard-Spink, commented on the Grey Tuesday protest as an example of a new mix, or ‘mash-up’ of cultural politics that emerged as a consequence of the rise of digital networks. At a time when copyright activism was on the rise, it was, ‘a potentially new site for a blend of online political and cultural activism in the highly

31 The fair use provisions in US Copyright Act 1976 (TITLE 17 > CHAPTER 1 > § 107) spell out the legal limitations on an owner’s exclusive rights. They allow reproduction for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.

68 charged realm of intellectual property expansion’ (2004). It was a site where the copyright balance was perceived to have tilted so far in favour of established intellectual property accumulators that it was producing a growing body of opposition.

In the digital world, remix and mashups, collage and culture jamming are all aspects of the innovation and creativity of digital culture. While they are in essence art forms, they are also used as tools to make political points and many constitute technical breaches of copyright law. In his book The Pirate’s Dilemma, Matt Mason relates the incident in April 2003 when Madonna, the fourth best-selling recording artist in history, anticipated that tracks from her new album would be pirated and so, flooded P2P networks with digital decoys (2008:69). They appeared to be tracks from her new album but were in fact recordings of Madonna ‘cursing and snarling’ at would-be illegal downloaders.

The response was a mobilising of hackers, remixers and activists who remixed her performance with new backing tracks. The remixed versions, called ‘WTF’, were played by radio stations and at club venues around the world with fifteen of the best WTF remixes being compiled into an album and released under an independent label.32 The political dimension of the activity was revealed when a competition for the best remix offered a prize of a ‘Boycott RIAA’ t-shirt. As well, the official Madonna site was hacked and the real tracks from her new album were made available for free download (70). Mason says that the response to Madonna’s WTF performance was not surprising. He says many fans responded not just to being screamed at, but to the whole file-sharing issue and the bigger issue of free culture.

Audio-collagists and culture-jammers, Negativland, maintain that until copyright appeared, the history of human culture – from singing around the fire to tool making and oil painting – consisted of copying and altering the universal public domain in various re-imagined ways (2003:240). Negativland have acquired a reputation for reasoned and reasonable objections to the operations of the record industry and have published several articles about the limitations of fair use protection under the current law. In 2001 they participated in the first conference on the public domain held at

32 The original Madonna track began with ‘What The Fuck do you think you’re doing?’

69 Duke University and their paper is included in the published proceedings of the conference.

Since being sued for ‘supposed copyright infringement’ in 1991, Negativland have continued to appropriate and transform copyright work into new works, arguing that, as musicians, they like the new sounds and that remixing and transforming old works is creative and fun. But they also want to prove that it is neither culturally harmful nor dangerous to anyone else’s business. ‘Culture-jamming’, their own phrase to describe a form of artistic media sabotage, has itself been appropriated, with their approval, as part of what they regard as a whole free speech movement and part of a cultural shift involving wider resistance to the mainstream cultural practice that makes mixing and sharing illegal.

Apart from the activism of musicians like M C Lars and Negativland, further evidence of an emerging cultural shift is provided by a series of published studies and polls relating to file-sharing and copyright. The polls dealt with the effects of downloading on the music and software industries and they acquired some prominence in the growing number of specialist information technology publications such as wired and Salon. The poll results were covered by the mainstream media with The Washington Post, for example, reporting on the previously mentioned Business Software Association poll in which 43 percent of the respondents said that they thought downloading music was ‘OK’ and 30 percent said the same about downloading software without paying for it (McGuire, 2004).

The downloaders and the Grey Tuesday protesters were not people who blithely broke other laws, just the laws that applied to their accessing and downloading the materials readily available on the Internet. Their downloading was not always part of an active political protest, but it was a further indication that significant numbers were prepared to either flaunt or bypass copyright laws that did not accord with their cultural practices.

In 2005 a report from the UK Patent Office identified a perception among young people that intellectual property offences were victimless crimes. It states: ‘Films, software, and books all suffer from a perception by a significant part of the public that copying and redistributing is acceptable’ (Turville, 2005:17). Similar to studies undertaken in Sweden, the UK Gowers Review of Intellectual Property also found

70 that downloading music and films from the Internet was the most common offence committed by people aged between 10 and 25 in the UK and that up to 80% of music downloads were not paid for, even though most consumers recognised this as illegal (2006:27). The Report states that copyright in the UK suffers from a marked lack of public legitimacy. Reinforcing the ‘non-rivalrous’ nature of digital works, it alludes to laws that lack the ‘flexibility to accommodate certain uses of protected material that a large proportion of the population regards as legitimate and which do not damage the interests of rights holders’ (39).

The findings in these reports, polls and studies reveal a distinct cultural change. The reality of digital culture is that millions of individual and otherwise law-abiding citizens are prepared to break copyright law. Provided by technology with extraordinary creative possibilities, the digital generation have been happily exploiting, appropriating and modifying available digital materials. When new laws have been introduced to limit their activities and ‘sharing’, many have simply ignored them and others have deliberately shared the materials in defiance of the law. And the law-breakers are not just recalcitrant adolescents. John Perry Barlow conducted his own informal research each time he delivered presentations to audiences of academics and lawyers. He made a point of asking who in the audience did not have unauthorised software downloaded onto their computers and reported that even when the audience was primarily copyright lawyers, the show of hands was never more than 10% (1994).

*****

Ultimately, the literature presented about the digital generation supports the idea that there are particular and fairly consistent characteristics that form a kernel of digital culture. The studies referred to confirm the observations that digital culture may be instrumental in the development of a different philosophy about the value, ownership and control of knowledge products and in the emergence of a ‘form of social organisation’ that is distinguishable from the social and literary culture that preceded it (Moglen, 2003).

Firstly, there is the daily immersion in a networked, digital life that seems, paradoxically, to foster a greater sense of mass collaboration and sharing in relation to digital works and at the same time to encourage an individual preparedness to break

71 copyright laws. In a departure from the patterns of social interaction of previous generations, the personal and professional relationships of the digital generation are formed and maintained, nationally and internationally, through social networking sites, which also make participation in communities and produsage easy and inexpensive.

Secondly, there are the practices of the produsers and the pro-ams who voluntarily – and often passionately – create and distribute knowledge, information and entertainment products, quite outside of the traditional control of corporate content holders. ‘Gift culture’ plays a role in that much of the produsage is undertaken for pleasure or prestige. In the free software community, it is undertaken because of a commitment to a ‘copyleft’ philosophy and the common good. In this context, ownership of works is not only less important to digital practice, it creates a barrier to participation in digital play and innovation.

Thirdly, there is the less proprietorial attitude of the digital generation towards knowledge and information. Research reported here indicates that digital natives are likely to regard the often ephemeral and non-rivalrous digital works as part of a common pool of cultural material, rather than as privately owned commodities. Where print technology gave rise to a sense of exclusive personal ownership of tangible goods, the ‘rip, mix and burn’ culture of digital technology has fostered a greater sense of common ownership of the intangible bits and bytes of data that now encircle the globe. As well, new digital models of interaction involve a freer and less hierarchical practice that allows many more produsers to be more creative and innovative and less concerned about the commercial value of the works they produce and use. They can also be connected to a different economic model where the value of created works is not necessarily tied to tight control of their production and distribution as marketable commodities.

Finally, there is the attitude of many of the digitally literate generation towards copyright. They no longer respect many of its rules and this has led to an element of defiance within digital culture. It has given rise to specific protests against the top- down monopoly control of the content industries and has provided the genesis of a movement characterised by dissatisfaction with the industries’ values and business models. Both digital theorists and activists are challenging the copyright laws that

72 many perceive to have been initiated primarily to protect business and property interests.

The resulting schism between law and social practice and the lack of respect for the ‘public legitimacy’ of the laws designed to protect intellectual property are indications of the extent to which the culture has shifted. Within digital culture, a significant number of digital downloaders simply do not consider the copying and sharing of digital works as serious legal offences. Others who are aware that their practices are unlawful do not feel bound to obey copyright laws. Musicians such as MC Lars feel free to mock the law and the copyright industries for their outdated practices. Negativland publicly justify their deliberate appropriation of copyright works as legitimate artistic practice.

This new culture presents a major challenge to those whose economic interests are affected and has led to the copyfights over who can and should control intellectual property. It also poses a significant problem for societies that ostensibly operate on the ‘rule of law’ and the principle that all members of society are bound by a set of clearly defined and universally accepted laws. The solutions would seem to be to change digital culture, or, to change the law.

4 The maximalist agenda

As mentioned in previous chapters, the corporate copyright holders have reacted to the threat posed by digital technologies and digital culture by using the law to prevent the erosion of their property rights. Not only have they taken legal action against new technologies like Napster, they have pursued their customers in and out of court. They have lobbied at both national and international levels to strengthen old copyright laws and to add new provisions designed to protect their businesses. Today, they are fighting to retain their property rights and interests in the extensive film, music, software and publishing industries by adopting a ‘maximalist’ copyright agenda that supports the expansion of the legal regime and what might be described as an hierarchical, ‘command and control’ structure.

This response is not surprising and indeed is predictable in terms of the history of previous copyfights over the ownership and control of knowledge and information. Several studies show that the copyright industries in their various forms have fought since the 18th century to exercise power and influence as the gatekeepers of cultural works (Drahos and Braithwaite, 2002; Patterson, 1968; Rose, 1994; Vaidhyanathan, 2001).

Pitted against them are the practices of digital natives and the values and activism of the copyleft. But it is the corporate content owners who seem to have the advantage in the current copyfights. From the monopoly control exercised over printed works by the English Stationers’ Guild in the 17th century to the tight legal and technological control over digital works today, the well-resourced content industries have been central to the determination of who should own and control knowledge, information and entertainment products. They have positioned themselves over 300 years to play a major role in the shaping of copyright law and thus resist technological and social changes that might undermine their influence and their income streams. Their

74 maximalism has effectively ensured that property rights in copyright works have been vested in them, rather than in authors or in a system that fosters the development of a public domain.

With both international treaties and national laws on their side, corporate content owners have assumed the role as the rightful owners of intellectual property. Challenges to their rights to control both the production of and access to their intellectual ‘property’ are construed as anarchic and often as theft. The content owners, their corporate lawyers and their industry associations have been vigilant in prosecuting their challengers.

Some corporates have even used laws other than copyright laws to entrench the legality of their ownership of cultural products. In an example of what he calls a new form of information exclusivity, intellectual property lawyer Yochai Benkler refers to the case of eBay v Bidder’s Edge33 (Benkler, 2006:451-453). In the case, online auction site eBay brought an action against an aggregator site that was using ‘bots’ or web robots to allow users simultaneously to search eBay and other auction sites (Benkler, 2006). The court held for eBay, who argued that the actions of Bidder’s Edge constituted a ‘trespass to chattels’. The trespass to chattels law was a tort (a civil wrong) and an action originally intended to apply to the actual taking of physical goods but it here ‘mutated into a prohibition on unlicensed automated searching’ (451). Benkler sees the action by eBay and the subsequent decision as an example of the content industries using the law to create a common law exclusive private right in information – by the back door, without statutory basis.

*****

It is salient to consider the emergence of the very idea of these private property rights in knowledge, information and entertainment products by tracing their history through developments in copyright law. An historical perspective provides an explanation for the power and influence of the content industries. It also provides insight into how the ‘intellectual’ products that are intrinsic to cultural heritage and identity, became seen as valuable commercial commodities.

33 eBay v Bidder’s Edge, Inc. 2000 US Dist LEXIS 13326 (N.D.Cal.2000).

75 The technological change that precipitated the first developments in ‘copy’ rights was the invention of movable type and the Gutenberg printing press in Germany in the fifteenth century. Prior to this time, writing and text had a more collaborative or collective element and its value and authority was derived from affiliation with earlier known texts (Woodmansee, 1994:17). The writer of hand-written manuscripts and early hand-made books was regarded as just one of numerous craftsmen involved in their production. There was little notion of writers as individual creators and no social or legal concept of them having property rights in written texts. Nor was there a book industry based on a commercial market for hand-written works.

By the late 15th century, however, the printing press had arrived in England and with it came the potential for the mass production and wider distribution of knowledge and information.34 This had economic, social and political implications. It created a market for printed works – and the need for a system to manage their production and distribution. Socially, it meant increased and independent access to knowledge and information that had mainly been the prerogative of the church and the educated gentry. Politically, it posed a threat to the monarchy that feared the uncontrolled dissemination of seditious and heretical material.

Faced with this threat, in 1557, reigning monarchs Philip and Mary, granted the Charter of the Stationers’ Company in England. The Charter empowered the Stationers, a guild of bookbinders, booksellers and printers, to control the production and distribution of ‘stationery’, as well as the power to seize and burn seditious and heretical books and materials (Patterson, 1968:29). The Charter also required that details of all printed books be entered into a Company Register that acted as a type of pre-publication censorship of printed materials. This gave the Stationers complete control over what would be published and made them ‘the policemen of the press’ (6). It set a precedent for the legally enforced control of information and knowledge by a particular group.

Mark Rose, in his careful study of the development of ‘copy’ rights, shows that as late as 1662, the English Licensing Act still made it illegal to publish anything without first securing a licence from the Stationers (1994:31). The Licensing Act, which was the lineal descendent of various printing ordinances and decrees, confirmed the

34 Records indicate that William Caxton was the first English person to work as a printer and the first person to introduce a printing press to England, probably in 1476.

76 Stationers’ Company’s power of search and seizure for illegal presses and books. Rose avers that this near monopoly power was relatively uncontroversial until the late 17th century, by which time the process of the commodification of literature as a form of valuable economic property was well underway and there were new social, political and economic pressures for the situation to change.

These pressures related to a challenge to the traditional ideology of hierarchy and regulation, or ‘the regime of regulation’ as Rose calls it, and to the emergence of a free market (31). The latter was, in part, brought about by the more widespread distribution of the very works that were the subject of the Stationers’ control and from which there was money to be made. By the late 17th century there were, Rose says, rumblings about censorship and the monopoly power of the Stationers and evidence of early concern about author rights. There was also concern about the educative role of printed works and access to them. Rose quotes from John Locke, an agitator for the end of licensing, who wrote in 1683: ‘That any person or company should have patents for the sole printing of ancient authors is very unreasonable and injurious to learning’ (qtd. in Rose, 33).

So from this very early moment, the control of printed works was a contested area, but one where the Stationers and publishers held sway. They held a sanctioned monopoly over the production and distribution of printed works, but they were being challenged by authors who were beginning to articulate a sense of ownership of their created works and by a public with a strong interest in the spread of knowledge and learning. And in the middle were the law-makers whose decisions inevitably affected all three.

The Licensing Act of 1662 expired in 1695 and was not renewed. Rose claims that the British House of Commons knew what it was doing: ‘In the name of free trade it was seeking to end a monopolistic system of privilege and control with its roots in an archaic concept of royal prerogative’ (34). But the non-renewal of the Act meant that the Stationers lost their monopoly control of the book trade and much of their power to influence what was published. Most significantly, they lost their assured financial rewards from the sale and distribution of printed works.

The decision left a hiatus in the laws governing the book trade, which was effectively being deregulated. For the next fifteen years the Stationers petitioned, argued and

77 lobbied for restitution of the licensing system. At the same time, the idea of the author as the rightful owner of literary property gained some credibility. The ‘modern notion of the author as an autonomous creature, the producer and first proprietor of original works’, had been developing in Europe in association with the Romantic movement (Rose, 25). It confirmed the idea of the writer as a special sort of author-genius and ‘the only one worthy of attention’ in the production process (Woodmansee, 16). By the 18th century, this was a familiar concept in England and it is not surprising that the emerging notion of the author as the inspired original genius led to an acknowledgement of some claim of ownership by authors to the particular printed works they created.

Tom Pettitt also suggests in his writings on the ‘Gutenberg Parenthesis’ that print technology and the idea of ownership or property in literary works are closely connected (Pettit, 2007[2]). He argues that acceptance of an author’s work as an original and autonomous cultural product could not be realised until a work could be fixed in printed form. Only then was it ‘readily distinguishable from other products within the same cultural system; acknowledged as the creation (and by implication, the property) of a specific individual; (and) its stability and integrity sustained over time’ (1).

Pettitt points out that prior to print, plays and other cultural products were collaboratively developed through ‘sampling & remixing; borrowing & reshaping; appropriating & recontextualizing’, just as they are today by many digital creators (2007[1]:1). Their ownership was not always clear, nor of major importance. The works were continually altered depending on the audience, the place and the actors. It was not unusual at this time for several plays, attributed to different authors, to have the one name and for one play to have several names. Pettitt’s use of the word ‘parenthesis’ is meant as a reminder that the era of the original and autonomous cultural product is emphatically only a phase, with a beginning as well as an end. Pettitt also suggests that the post print, ‘post-parenthetical period’ into which we are now moving, may have more in common with the period before its opening than either has with the print period that came in between (2007[2]:1).

With print technology, the connection between an individual author and a particular piece of work could be readily made. As early as 1704 Daniel Defoe published what Rose calls ‘a moderate pamphlet’ in which he advocated authorial property rights,

78 which would both restrain the licentiousness of the press and put an end to piracy (qtd. in Rose, 34). Making it clear that authors were not at that time normally associated with particular works, Defoe argued that authors’ names should in future be published with their work – so that the authors of offending or seditious books might be known and punished. But, he pointed out, if they could be punished for offending, they should also be able to benefit from their work. ‘For if an Author has not the Right of a Book, after he has made it, and the benefit be not his own, and the Law will not protect him in that Benefit, ‘twould be very hard the Law should pretend to punish him for it’ (34).

To explain this new representation of authors as proprietors of their works, Rose looks to the influence of John Locke and the classical, liberal discourse of property, articulated in his Two Treatises on Government (Locke, (1690), 2005). Contending that the origins of property lie in acts of appropriation from the general state of nature, Locke argued that it was conceivable that individuals had an absolute property in their own person and that the use of their labour to transform the raw material of nature into a product, made that product their natural property. Applied to the notion of authorship, this provided an argument that authors had a perpetual natural right to the text they produced. It was a form of property to own and sell in the same way as the products of people’s physical labour were theirs to sell.

If this argument were accepted, it would seem that authors’ emerging claims to a property right in their works would lead them into conflict with the Stationers and publishers. Since the granting of the Stationers’ Charter, the latter had vetted, selected, printed and distributed works without thinking of authors as having any ongoing rights in the works they created.

But, interestingly, it was not their own but authors’ rights that the Stationers stressed in 1707 in yet another, but unsuccessful, petition to Parliament to secure property rights in books (Rose, 35). In the petition, they seized upon the more noble cause of the damage that the disorder in the book trade was having on authors, rather than its deleterious effects on their own status and incomes. The disorder in the book trade, they claimed, was discouraging authors from writing and was depriving the public of the use of authors’ works. Joanna Demers calls this move to promote the rhetoric of authors’ interests and those of the public, while in fact protecting their own, ‘a sly

79 move’ (2006:14). It was certainly a strategic one that seemed to accommodate the interests of authors but to ensure that the Stationers’ own interests were also met.

Debate and discussion about the relationship between authors and their work continued throughout the 17th and early 18th centuries in treatises and articles that canvassed the concepts of paternity, husbandry and property until in 1710, the Statute of Anne was passed.35 Lyman Ray Patterson notes that it would be fitting to think that this first copyright statute was enacted to benefit authors, but he says it was ‘a trade- regulation statute enacted to bring order to the chaos created in the book trade’ and to prevent a continuation of the booksellers’ monopoly which no longer sat easily in a society that wanted less regulation and greater access to cheaper books (1968:143).

The 1710 Statute of Anne, also referred to as ‘the Act of Anne’, signalled the end of the Stationers’ absolute control over ‘copy’ rights and was obviously also a reflection of changing social and economic times. In response to concerns about monopolies and freedom of the press, the Act divorced copyright from the Stationers’ control and from censorship. In line with the growing acceptance of the author as the ‘owner’ of a work, it brought the notions of authorship and property more closely together (Patterson, 143). According to Demer, it also gave the English law an economic incentive philosophy by giving independent publishers a reason to enter the publishing business – and it benefited the public who enjoyed lower prices as a result of competition (17). This economic incentive has since characterised Anglo-American copyright and stands in contrast with the greater emphasis on the ‘droit d’auteur’ view of copyright in Europe, which even today, places greater emphasis on protecting the personal and moral rights of the individual author.

The law, which came into effect on the 10th April 1710, is generally considered to be the first modern copyright law. Its full title ‘An Act for the Encouragement of Learning, by Vesting the Copies of Printed Books in the Authors or Purchasers of such Copies, during the Times Therein Mentioned’, makes it clear that its framers tried to establish some sort of balance in the chain from author to reader. As well as dealing with the interests of ‘Authors’ and ‘Purchasers’ (the publishers and booksellers), the law acknowledged the public good, both in its reference to encouraging learning and in its imposition of a limit to the time during which the

35 Queen Anne was the reigning British monarch from 1702-1714 and the last monarch of the House of Stuart.

80 author or purchaser had an unquestionable right to the particular property in a book. After this time limit expired, it was understood that books and other printed works would move to the public domain where the copyrights would be available for anyone with the capital and know-how to reprint and distribute them.

Specifically, the terms of the Statute allowed the booksellers’ interests in existing published works to be extended for one period of twenty-one years. This was a radical alteration that appealed to those who were concerned about monopolies and restraint of trade (Rose, 44). But the one-time extension displeased the booksellers as did the provisions covering new works. Mentioning ‘authors’ for the first time in any legislation, it gave authors a statutory right to control the copying (and other uses) of their new works for a limited period of 14 years, with the copyright extending for a further 14 years if the author was still living.

Patterson contends that by giving the same sorts of rights to both author and publisher, the Statute of Anne failed to distinguish between their different interests and that this precluded the ‘development of a satisfactory law to protect the interests of the author as the author’ (151). Thus while their interests were acknowledged in the Statute, authors were still very much dependent on the rights of the publishers and booksellers to produce and distribute their work. As Lionel Bently points out, in law, ‘authorship is a point of origination of a property right which, thereafter, like other property rights, will circulate in the market, ending up in the control of the person who can exploit it most profitably’ (1994). And as the market for literary property became more valuable, it was the publishers with their greater resources who exploited this now legal property right. Siva Vaidhyanathan goes as far as to say of the Statute of Anne: its ‘codification of authorship was merely an appeal to the strawman’ (2001:40).

Certainly the new Statute was far from a final resolution to the problem of who should own and benefit from literary property – and from the knowledge and culture it embodied. It did not at all appeal to the booksellers who even then saw themselves as the rightful managers of literary property and who continued to challenge the new provisions of the law in what Lyman Ray Patterson calls ‘The Battle of the Booksellers’ (151).

81 The London booksellers found that after their 21-year extension period expired, independent and provincial booksellers, particularly in Scotland, were encroaching on their previously protected territory by printing and selling books that were then out of copyright. The London booksellers responded by bringing a series of cases before the courts in which they continued to argue against the limited term, statutory right encoded in the 1710 Act. Again they invoked the perpetual natural rights of authors under the common law rather than arguing their own self-interest.

If a perpetual natural right of the author was upheld, the ‘perpetual’ monopoly of the bookseller who had ‘purchased’ the book for publication could also be upheld, enabling the booksellers to exclude competition from ‘pirate’ booksellers. As is still the case today, production and distribution of printed works was complex and expensive and the only way for individual authors to be published was to deal with printers and booksellers. Bently says, ‘Since copyright serves paradoxically to vest authors with property only to enable them to divest that property, the author is a notion which needs only to be sustainable for an instant’ (1994:981). And as it was the printers and booksellers to whom the property was inevitably divested in that instant in time, a perpetual right for authors was merely notional. It was, in effect a perpetual right for printers and booksellers. Lyman Ray Patterson explains this saying if the author had a common-law copyright in perpetuity, rather than a limited statutory one, it could be conveyed to the bookseller and the limitations imposed by the Statute of Anne would be circumvented. ‘The monopoly would be safe’ (153).

So important was this monopoly to the booksellers that for over 60 years from the passing of the Statute of Anne, they continued to argue about the ‘question of literary property’ and about who should own and control it (Rose, 1994). The question was important in that it encompassed the booksellers’ economic rights, authors’ creative and property rights, legal concepts and the public interest. All were the subject of philosophical, literary and judicial debate in England and Scotland. In France, where the book trade was similarly organised around privileges granted by the state to a group of printers based in Paris, the system of control was extreme. Drahos and Braithwaite report that during the 1750s, 40 per cent of those held in the Bastille were there for piracy and offences relating to the book trade and it was not until the French Revolution that the privileges of the printing cartels were abolished (2002:31).

82 While grounded primarily in economic issues, the battle of the booksellers in England also concerned the issue of national and cultural identity. The 18th century was a time of considerable social and economic change and questions were being asked about what sorts of controls should be exercised over the production and distribution of cultural products that define a nation. Opinions were offered in newspapers, comments were published in pamphlets, and hundreds of people attended legal proceedings when the question of literary property was addressed (Rose, 1994)

Many aspects of the question of literary property, raised by the technological changes introduced by print, are familiar to law and literature scholars today. Technological change has again disrupted social and economic mores and the questions debated in the 18th century are again being asked. Should rights in literary property be based on a concept of natural law that gives all people the right to benefit from the fruits of their physical or intellectual labour? Are the rights analogous to those of real property, which confer ‘ownership’ of a commercial commodity that can be traded? How can one have property in ideas, whose existence is purely in the mind? Can knowledge and information be privately owned? Are literary property rights the rightful reward for authors’ original thoughts and expressions or are they an incentive for authors to continue to create cultural works? Should there be a public policy element that limits authors’ rights so that a public domain of works is available to readers and users? Or are legally enforceable property rights basically a market control mechanism that allows booksellers and publishers to retain their traditional monopoly over the publication of literary works and the economic benefits that go with it?

Tension caused by the disruption to the economic, social and political fabric and fuelled by technological change, continued as numerous cases were litigated in England throughout the 18th century. Fine points of law were argued by the booksellers, who sought to retain their central role in the publication and distribution of printed works. An example noted by Rose centres around the interpretation of the words of the statute itself (46). The title of the original bill was ‘A Bill for the Encouragement of Learning and for Securing the Property of Copies of Books to the Rightful Owners thereof’. It was amended to ‘A Bill for the Encouragement of Learning by Vesting the Copies of Printed Books in the Authors or Purchasers, of such Copies, during the Times therein mentioned’. The change became significant in the early copyfights as Rose notes that the final Statute of Anne uses ‘vested’ in the

83 title but uses ‘securing’ in the preamble to the second section of the Act. The result was that proponents of perpetual copyright seized on the inconsistency and argued that the idea of ‘securing’ (an existing and perpetual common law right) in the body of the Act carried more weight than the use of ‘vesting’ (a new statutory right) in the title (46, n11).

Eventually, in 1774, the case of Donaldson v Beckett determined that copyright was a statutory right that extinguished any existing natural or common law perpetual rights that authors might claim as their justifiable reward for their creative, intellectual labour – or that booksellers, as their assigns, might use to continue their monopoly.36 The decision from the British House of Lords, on a narrow margin of six to five, held that copyright was a legal right and not an inherent and natural right that existed outside statutory law (Patterson, 175). This affirmed copyright as an economic right which, in the interests of balance, was limited in its duration in order to make works accessible to the public.

It was thought that with this decision, the much-debated question of literary property had been answered, at least in English law. But perhaps the fact that the House of Lords was itself divided was an indication that even the first copyright law was passed in a moment of such changing social and economic times, that any balance between the interests of authors, booksellers and the public was precarious from the start.

Legal developments in England, in Australia (which followed the principles of English law until its first federal Copyright Act in 1905) and in the United States, reveal that far from settling questions about authors, publishers, works, property and users, the Statute of Anne and Donaldson v Beckett were mere players in an ongoing drama about the ownership and control of knowledge and information. Confirmation through the law that they could not use the perpetual rights for authors to protect their own rights led booksellers and publishers to adopt other arguments and means to maintain their traditional control of the market. And as Peter Drahos and John Braithwaite point out, as the market in information products became more valuable in the 19th and 20th centuries, the arguments over who should own and control them became more serious (2002:2-3).

36 Donaldson v. Beckett (1774) 1 ER 837.

84 As technological change introduced new information and entertainment products, the scope of copyright law was gradually expanded though litigation and legislation. Over time, both the sorts of material to be protected and the period of protection were extended. But attempts to provide a balance between the interests of authors, publishers and users created complications and they provide some insight into why copyright has been so problematic.

In England, the Copyright Act of 1842 (5 & 6 Victoria c. 45), for example, extended the period of protection to forty-two years from the time the protected work was created but its complicated arrangements must have confused authors and publishers, then as now. The Act extended protection to dramatic and musical works and in a salutary provision, copyrights were declared to be personal property, and thus capable of bequest. Where copyright already existed in a work under earlier legislation, it was to be extended to the new 42-year term, unless the copyright had been sold in which case it would lapse – unless an extension was agreed to by the author and the proprietor. This was meant to ensure that authors would be compensated for previously sold rights (probably for a fixed sum), but it also meant that authors were still tied directly to their publishers by contractual agreements in which the publishers held far more power.

Copyright in encyclopaedia, magazines, periodicals, and series works became vested in the proprietors as though they were themselves the authors, further complicating the parties’ interests. This swapping of identities between authors and publishers, introduced at the behest – and for the commercial convenience – of the publishers, gave a specific and separate copyright to publishers and gives an indication of how proprietors ensured that their commercial interests were accommodated. It also heralded difficulties for subsequent copyright arrangements that deemed employers to be the copyright owners of works created by their employees. It reinforces Lyman Ray Patterson’s view that the interests of authors as authors were never protected as against those of publishers.

This early vesting of authorship rights in publishers is the basis of the US ‘work-for- hire’ doctrine. Peter Jaszi identifies it as a rule associated with jurisdictions that trace their laws of intellectual property back to Britain and one which awards ownership of works produced within the scope of employment to the employer, not the creator or author. It effectively defines the employer as the ‘author’ in place of the ‘mere

85 drudgery of the “employee”’ (1999:34). It also demonstrates the sort of influence that employers have been able to exercise as works created under the work-for-hire doctrine today attract a longer period of protection under US law than those created by individual creators. In Australian law, the early arrangement survives in Section 35(6) of the Copyright Act 1968, which gives legal rights in created works to employers when the works are created by authors working under an employment agreement or apprenticeship.

With hindsight, the power difference between aspiring authors and the gatekeeper publishers, combined with the emphasis on the commercial convenience of the publishers that became encoded in the law during the 19th century, gave rise to a legal system that confirmed and reinforced publishers’ property interests in copyright works. The 1842 Act stayed in place in England for most of the nineteenth century, establishing copyright as a form of property, not unlike real property. ‘Property talk’ had gained a place in the public imagination as well as the law and by the time the expression ‘intellectual property’ was formally used at the first meeting of the United Nations’ World Intellectual Property Organisation in 1967, the terms of the debate about the question of literary property were firmly cast for the 21st century. Intellectual property was notionally equated with real property and, internationally, with an owner’s defensible right to control its use and access (Vaidhyanathan, 2001:11).

National copyright systems also emerged in other parts of Europe during the 18th century and by the end of the 19th century, there was a need to address the growing problem of international piracy of printed works, just as there is today with digital works. As the mobility of people and print increased across national borders, national works, especially successful ones, were being copied and distributed in other countries with no payment to their original authors or publishers. This form of ‘piracy’ had both economic and cultural repercussions.

Initially, and with some resonance for the early sharers of digital works, foreign copiers of printed works did not see themselves as pirates and in fact saw themselves as honourable men, performing a public service for their country by facilitating the dissemination of knowledge and cultural works (Drahos and Braithwaite, 32). But writers like Charles Dickens, whose works were continually pirated in the US, fought against the practice. He campaigned in the US in 1837 for recognition of the rights of

86 foreign authors and argued eloquently and often for the ethical right of authors to control their work and to be reasonably paid when it was copied (33). At the same time, English and European publishers argued that they were losing enormous amounts of money. Without international laws or agreements, the works of their star writers were quickly copied and published in other countries and they had no way of legally enforcing what they now saw as their property rights.

Eventually, it was the economics of piracy and trade agendas rather than authors’ rights or the spread of learning that drove the processes leading to the international agreement of Berne Convention for the Protection of Literary and Artistic Works (Drahos and Braithwaite, 32). The Treaty was accepted in Berne, Switzerland in 1886 and was essentially a European multilateral agreement, negotiated in the interests of publishers. Four major powers ratified the Berne Convention in 1887: France, Germany, Spain and the UK, India and Australia were the subject of a separate declaration in 1912. The Netherlands and Portugal joined in 1914.

The Treaty covered concepts of national treatment of copyrights, the abandonment of formalities (such as registration) for the vesting of copyright other than those in the country of origin, definitions of literary and artistic works and the protection of translations for the entire term of copyright. Most importantly, countries agreed to provide the same protection to authors from other member countries as they provided to their own, subject to minimum levels of copyright protection. In protecting their authors, the international publishers who were instrumental in formulating the terms of the Treaty were ensuring that their interests were also protected, just as they did when they argued for perpetual copyright in the 17th century.

The abandonment of formalities for registration of works meant that copyright was recognised as vesting in works – from shopping lists to encyclopaedia – as soon as they existed in material or physical form. Everything that was written or created had potential value in the form of a copyright and, while this seemed to be an affirmation of the rights of creators, in reality it was a privilege for publishers. Every printed work for them had some commercial potential but none had any real economic value until they determined it should be published. At that point, the creator ‘divested’ the property in the work and it could be made commercially available on the terms established by the publisher. Abandoning registration of works also meant that there

87 was no longer an authoritative record of works for which owners or creators claimed copyright protection.

Also introduced with the Berne Convention was the ‘Berne three-step test’ which has since been adopted into other international treaties and which provides limits to ‘fair use’ under US law and ‘fair dealing’ under Australian law.37 Applying to all member states, the test relates to exceptions to the exclusive rights of ‘rightsholders’ (not creators). It governs the uses that can be made of copyright works, without formal permission, by those other than the copyright holders. It requires that any such uses be confined to:

(i) certain special cases

(ii) that do not conflict with the normal exploitation of the work and

(iii) that do not unreasonably prejudice the legitimate interests of the rights holder.

The test and the fair use/fair dealing doctrines have assumed considerable importance in copyright law by setting the boundaries for users’ access to works. They were intended, in theory, to provide a balance between rights of copyright holders (usually publishers) to control the uses of their works and those of users wanting access to printed works for legitimate educational or other public interest purposes. In the print era, their application was reasonably clear but in the digital era, with millions of ephemeral and unattributed bytes of information on the networks, their application has become problematic. The fair use/fair dealing doctrine and the three-step test have remained essentially unchanged since the Berne Convention and they are today the focus of much criticism from copyleft theorists, particularly for the ways that they have been used by copyright holders to prevent, rather than allow, access to digital works.

The original Berne Convention was revised in 1908 to make the duration of copyright the life of the author plus 50 years, and this was included in English law in the revised Copyright Act of 1911. In the 1948 revisions of the Berne Convention, known as the Brussels Act, the 50-year term was made mandatory for members. It resulted in 50

37 The 'three-step' test can also be found in Article 13 of TRIPS, Article 10 of the WIPO Copyright Treaty, Article 6(3) of Council Directive 91/250/EEC of 14 May 1991 on the legal protection of computer programs, Article 6(3) of Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases and Article 5(5) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society.

88 years of certainty for publishers whose contractual agreements with authors allowed them to determine whether or not a work would be published or republished, and how much an author might be paid.

In discussing the Berne Convention, Drahos and Braithwaite emphasise the perspective of the powerful publishing industry for whom more rights for copyright holders meant more uses for which a copyright charge could be made. They say: ‘Beneath the dissembling rhetoric about the need to protect authors and provide incentives lay a harsh global economic reality of a cartelized publishing industry, price-fixing and world market-sharing agreements’ (76). Property rights in knowledge and information, even though created by authors, were firmly in the hands of European and British publishers, who at that stage were the biggest exporters of copyright in the world (77).

Conspicuously absent from the signatories to the Berne Convention was the US, which offered little or no protection to foreign authors. Drahos and Braithwaite contend that the US publishing industry was quite blatantly built on the piracy of European works (33).

So while Samuel Clemens (Mark Twain) and other American authors agitated during the 19th century to better their position through some form of international protection for their works, the US was slow to recognise their claims and those of foreign authors such as Charles Dickens. The first US Copyright Act in 1790 had expressly permitted the importation, selling, reprinting and publishing of materials written by non-US citizens. This was of considerable benefit to American publishers and printers who were in fact ‘pirating’ and publishing books from the UK and other parts of Europe. The policy provided the US with cheap, popular books and there was an obvious reluctance to abandon it. Efforts made by British authors and the British government to have America sign a bilateral copyright agreement were unsuccessful. Drahos and Braithwaite say that during the 19th century, ‘committees of authors and commissions of policy-makers would meet in Renaissance capitals to decry the piratical practices of the new World’ (33).

But America’s reluctance to sign the treaty also reflected the powerful lobbying of the printer and bookbinder unions and of the publishers, who like the English Stationers, opposed any moves that would interfere with their businesses. As the gentlemanly art

89 of publishing gave way in the latter part of the century to the pressures of the marketplace and what Siva Vaidhyanathan calls the ‘cheap books movement’, competition between publishers who sold dozens of editions of British and other foreign authors, led to disorder in the industry (2003:53).

In 1886 the US Senate Committee on Patents held hearings on an international Copyright Bill. Some publishers and many high profile authors, including Mark Twain, who Vaidhyanathan says was a master of the intricacies of copyright law and of the power of ‘property talk’, argued strongly for authors’ property rights (55). Other publishers, whose businesses were based primarily on piracy, were joined by unions and trade groups who opposed the Bill. They presented arguments that property laws should be domestic concerns and that the US should not trade away its public interest to protect the rights of foreigners, nor should foreigners be able to dictate the price of American books. Their arguments were successful and the Bill died.

Even in 1893, when the United International Bureau for the Protection of Intellectual Property (BIRPI)38 was set up to administer both the Berne Convention for the Protection of Literary and Artistic Works and the Paris Convention for the Protection of Industrial Property, the US was still reluctant to sign the international agreement. In fact, the US retained its protectionist approach until its Berne Convention Implementation Act came into force in 1988. By this time the US was a major exporter of cultural products and its interests in the protection of literary property had broadened to address international piracy of its own copyright works (Goldstein, 2003:151).

At a national level, American copyright was incorporated into the American Constitution, which empowers the Congress to ‘promote the Progress of Science and the useful Arts by securing for Limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries’. The first US Copyright Act of 1790 was ‘An Act for the Encouragement of Learning, by securing the Copies of Maps, Charts and Books, to the Authors and Proprietors of such Copies, during the Times therein mentioned.’ As with the Statute of Anne eighty years earlier, the copyright created under the US law was for a period of 14 years. If the author was still

38 BIRPI (Bureaux Internationaux Réunis pour la Protection de la Propriété Intellectuelle) is the French acronym for United International Bureau for the Protection of Intellectual Property

90 alive at the end of the 14 year period, the period could be extended for a further 14 years. If not, the work moved into the public domain.

Like the English Act, the US Act was based on seemingly clear principles that emphasised the importance of learning and the control of works for limited times by authors and owners. But Goldstein says ‘distinctive forces shaped American copyright law’ and it was writers not booksellers, he says, who led the drive for national copyright laws in the US (2003:40). Meredith L McGill claims there was also a republican sentiment in the US that qualified the impact of ‘possessive individualism’ on the development of literary property, postponing the emergence of the ‘modern property owning author’ until the late 19th century’ (1997:24).

Paul Goldstein notes that the early years of copyright in the US paralleled the development of copyright in England in two respects: it was modelled after the Statute of Anne with the same 14 plus 14-year term of protection. It also involved a high court case addressing the question of the natural rights of the author and whether these were limited by statute (2004:40).

The US high court case that clarified authors’ rights in the US was the 1834 case of Wheaton v Peters.39 The facts of the case centred on the compiling and publishing of court decisions and whether the publication and sale of a much less expensive, condensed version of the original reports constituted an infringement of copyright. The case was decided on technicalities but the end result, as in England, was that the Supreme Court affirmed copyright as a creature of statute, not of common law. To gain its protection, an author had to fulfill its technical requirements. Wheaton, the original compiler of the court reports had not fulfilled all the requirements and was therefore not protected. As with the House of Lords decision in Donaldson v Beckett, the decision of the Supreme Court meant that once a work was published, the copyright statute and its formalities displaced all extant, common law rights that the author might morally or ethically claim.

This set in place a legal framework that, as in England, ostensibly provided some sort of balance between competing interests but in economic terms, it inevitably pitted the interests of authors against those of the better-resourced publishers. The copyrights were the authors’ for a limited time under statute – but in reality, authors were still

39 Wheaton v Peters 33 U.S. (8 Pet.) 591 (1834)

91 dependent on their contracts with publishers to have their works printed and sold. They may have had sentiment and rhetoric to support their claims for protection of their now legal ‘property’, but the publishers had the resources and the power to determine whether or not an author ever went to press. The law also paid scant attention to the public interest or the public domain of accessible works that print technology had made more readily available and the situation reflects the view that the balance aspired to in the copyright laws was an idea rather than a reality. Siva Vaidhyanathan concurs with Lyman Ray Patterson that copyright has always been about the interests of copyright holders first, authors second and the users a distant third (2003:11).

Over the next century, copyright in the US was extended to cover prints (1802), music (1831), dramatic compositions (1856), photographs (1865) and works of art (1870). The first general revision of the laws took place in 1831 when the term of copyright was extended to 28 years with the opportunity to renew the term for a further 14 years. The second general revision took place in 1870 when copyright activities, including deposit and registration were centralised in the Library of Congress. The revised Act gave authors the right to create certain derivative works, including translations and dramatisations.

In 1909, the third general revision of the Copyright Act became effective. The term of statutory protection for a work copyrighted in published form was henceforth to be measured from the date of publication of the work and the renewal term was to be extended from 14 to 28 years, setting a maximum term of 56 years. The renewal requirement meant that works that were not renewed moved into the public domain while those that were renewed, retained their protection and their commercial value to their publishers.

The Act also added provisions to address the new technologies of the phonograph and the piano roll. Constitutional lawyer and founder of the Creative Commons, Lawrence Lessig, identifies this provision and this Act as a turning point in the development of copyright law and its relationship to technology (2004, Ch 10).

The framers of the 1909 revisions were confronted with pressure from both the inventors of the new technologies who felt entitled to benefit from their inventions and from the music composers who had the exclusive right under the existing law to

92 control copies of their music and its public performance. The composers complained that their work was being ‘pirated’ and the framers resolved the problem by giving both the composers and the phonographic companies a copyright interest in the work (Lessig, 2004 Ch 4). In doing so, Lessig says, they changed the law from regulating publishing to regulating ‘copies’. After this change ‘the scope of the law was tied to technology. As the technology of copying became more prevalent, the reach of the law expanded’ (2004 Ch 10).

Benedict Atkinson in his study of the history of copyright makes similar observations about the proviso relating to mechanical reproduction that was included in the 1908 Berne Union Berlin Conference (2007). The new phonographic industry lobbied for, and won, a proviso that member states could place limits on the author’s control over any ‘mechanical reproduction’ of creators’ works. Atkinson says that the Berne Union felt obliged to accommodate the needs of the powerful new phonographic industry built on a new technology for reproducing works but that it was a ‘fatal concession’ for authors (and other original creators) (48). Both the Berne proviso and the 1909 US Act meant that in response to new technologies – and the lobbying of industry representatives – a new and legally defensible copyright was created. It was a copyright that was granted not to the original creator of a work, but to the producer of the original work in a different medium. Atkinson describes it as a precedent that augured well for future industries that reproduced or disseminated works, but not for authors or composers who created them (49). He says it ensured that the fledgling film industry could expect over time to receive the benefits of property rights and just 3 years later, motion pictures were added to the classes of protected works under the US Copyright Act.

Between 1909 and 1976, which marked the fourth general revision of the Act, recording and performing rights were extended to non-dramatic works (1953) and in 1955, US membership of the Universal Copyright Convention (UCC) came into force. The UCC was developed as an alternative to the Berne Convention which, unlike the US, had abandoned copyright registration, provided copyright protection for a single term based on the life of the author, and did not require the inclusion of a copyright notice for copyright to exist. Many of the Berne Convention states also became party to the UCC, so that their copyrights would exist in non-Berne convention states. The

93 US thus operated under a parallel system that reflected its own system for managing copyright works.

In 1976, the US revised its 1909 Copyright Act and introduced some major changes to deal with technological developments. Importantly for this thesis, it effectively brought even unpublished works, which had previously been exempt from federal copyright jurisdiction, into the copyright regime. The change in the legislation from the term ‘published’ works to ‘original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device’ was to accommodate new technologies such as moving pictures, sound recordings and the photocopying machines that were starting to proliferate. But it also meant that the previously unpublished works that had formed a public domain were now also subject to copyright protection. Their use in future was subject to the rights of the copyholder to control their reproduction, to create derivative works, to sell, lease or lend copies, and to perform or display the work (Section 106).

The 1976 Act abandoned the requirement for renewal of the copyright term. For all works created after 1978, there was to be only one copyright term: the maximum term of life plus fifty years for natural authors, and seventy-five years for corporations. Lessig points out in Free Culture that this change also impacted on the public domain because it meant that American law no longer had an automatic way to ensure that works moved into a copyright-free space. He notes that in 1973, more than 85 percent of copyright owners failed to renew their copyright, allowing their works to be publicly available for use or reuse. The average term of copyright at that time was 32.2 years. With the elimination of the renewal requirement, the average term of copyright was determined by the maximum term for copyright that has now been extended to life plus seventy years for authors and ninety-five years for corporations. In the latter case, the average term of protection has tripled in thirty years with dramatic effects on the public domain of cultural works (2004, Ch 4).

In its definition of protected literary works, the 1976 Act made it clear that Congress intended computer software to be copyrightable: ‘works, other than audiovisual works, expressed in words, numbers, or other verbal or numerical symbols or indicia, regardless of the nature of the material objects, such as books, periodicals,

94 manuscripts, phonorecords, film, tapes, disks, or cards, in which they are embodied.’40 In 1980, in response to the Final Report Of The National Commission On New Technology Uses Of Copyrighted Works (CONTU), the US amended their copyright law specifically to define computer programs as literary works and thus bring an additional technological development firmly under the protection of copyright law.

The 1976 Act also codified the ‘fair use’ and ‘first-sale’ doctrines which were part of the supposed balance between the exclusive rights granted to copyright holders of works and the opportunities for the public to benefit from them. Fair use, subject to the previously mentioned three-step test, did not give any positive rights to users, but did allow them under certain circumstances to make use of copyright works without permission or payment. Specifically, copyright works could be used for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research. Four factors were to be considered by the courts in determining fair use: purpose and character of the use, nature of the copyrighted work, the amount and substantiality of the portion used in relation to the whole, and the effect of the use on the potential market.

The codification of the first-sale doctrine made it clear that purchasers of a copyright work could write on it, copy out parts of it, resell it, lend it or destroy it, without asking permission of the copyright holder and without infringing copyright. Both it and the fair use doctrine were clear attempts to preserve some balance between those with an economic interest in producing and selling copyright works and those who wished to access, buy and use them.

At the time of the 1976 revision of the law, there was evidence that some US publishers were beginning to recognise that their failure to join the Berne Union was undermining efforts to negotiate trade agreements that protected US intellectual property. By this time the US was becoming a major power in the information, knowledge and entertainment arena. It had moved from being a net importer of copyright works to a net exporter with software, books, audio recordings and American ‘Hollywood’ films among its strongest exports. It is not surprising that, at this stage, American copyright owners would have been more interested in

40 See {FN7: 17 U.S.C. §101}.

95 international agreements that would better protect their works in the international marketplace.

The increasing importance and international application of the rules and laws governing copyright and intellectual property were demonstrated in 1994 when the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) was negotiated at the end of the Uruguay Round of the General Agreement on Tariffs and Trade (GATT). By that time, the US was a powerful player on the international copyright scene. No longer isolationist, the US played a major role in formulating the terms of TRIPS and made it clear that it was prepared to now accuse others, particularly third world countries, of the piracy that they had so recently practised and defended.

Drahos and Braithwaite are scathing about the motives and actions of the publishing ‘cartels’ whose ruthless logic informed the growing, global use of intellectual property rights (78). They devote chapters of their book, Information Feudalism, to explaining the way that the US, through its powerful and lucrative media industries, became pivotal actors in bilateral and multilateral strategies that were designed to implement the globalisation of intellectual property rights that protected and benefited their industries. They refer to the US International Intellectual Property Alliance (IIPA), as the single most powerful copyright lobbying organisation in the world. It comprised eight trade associations and was set up in 1984 with the principal aim of ensuring that the Uruguay Round of GATT talks produced an agreement that was satisfactory to its corporate members.41 In March 1986, a new Intellectual Property Committee was established in the US and the 13 major US corporations that comprised its membership were no less powerful than those of the IIPA. Their stated task was ‘the negotiation of a comprehensive agreement on intellectual property in the current GATT round of trade negotiations’ (18). There was no doubt that the intellectual property they were discussing was regarded as the tradable property of the various industries represented.

41 The eight trade associations were the Association of American Publishers, the American Film Marketing Association, the Business Software Alliance, the Computer and Business Equipment Manufacturers Association, the Information Technology Association of America, the Motion Picture Association of America, the National Music Publishers’ Association, the Recording Industry Association of America.

96 The negotiations leading up to the final draft of the TRIPS multilateral trade agreement took years and, as Drahos and Braithwaite say, would have appealed to those who like ‘subterfuge, manipulation, dissembling, hypocrisy and power plays’ (139). TRIPS contains requirements that national laws must meet for the rights, not just of authors, but of the stakeholders in new technological media including producers of sound recordings and broadcasting organisations. Under TRIPS, ‘intellectual property’ included geographical indications, including appellations of origin; industrial designs; integrated circuit layout-designs; patents; monopolies for the developers of new plant varieties; trademarks and undisclosed or confidential information. TRIPS also specified enforcement procedures, remedies, and dispute resolution procedures.

The TRIPS agreement boldly introduced intellectual property law into the international trading system and is a comprehensive international agreement on intellectual property. Its primary focus is quite blatantly the protection of the intellectual property rights of the net exporters of first world countries and the investments of the wealthy media, entertainment and software industries that had major input into its terms. Significantly, because of its global application, it has been instrumental in ratcheting up intellectual property standards that systematically criminalise the infringement of intellectual property.

If authors and users voiced any opposition at this time to the copyright maximalist focus on the interests of the content industries – or to the deleterious effects it might have on them and on developing countries – their voices were apparently not powerful enough to be heard or heeded. Drahos and Braithwaite surmise that the consumer movement representing user interests was not effective in lobbying TRIPS. Their diffuse public interests were no match for the producer interests that were decisively more organised (103).

But various individuals and groups came together in protest when the US was planning its 1998 Digital Millennium Copyright Act (DMCA) to address copyright issues raised by the introduction and spread of digital technologies. As the home of ARPANET and early digital communications, the US had particular concerns about harnessing and protecting the potential that digital technologies seemed to offer.

97 In 1992, while the negotiations for the TRIPS agreement were taking place, the White House under President Clinton, had initiated an Information Infrastructure Task Force (IITF) to look at issues associated with the ‘Information Superhighway’. The taskforce was to identify any changes that would be required to realise the potential of the Internet as the alleged economic miracle that would further advance US competitiveness and economic power (Litman, 2001:89).

At this early stage of the Internet, policy makers were looking at ways in which the Superhighway could be made profitable so that American private industry would invest in it. In what intellectual property lawyer Jessica Litman calls ‘an understandable fallacy’ based on their ignorance about the Internet, policy makers fixed on finding ways to induce the private sector to develop content to make the new medium attractive for investment (90). In other words, it was the role of the IITF to consider what changes to policy and the law would encourage the information and entertainment industries to produce content for the new digital medium that was still seen by many as ‘some fantasy digital network’ (89).

The Information Policy Committee of the IITF appointed a Working Group on Intellectual Property, which produced a ‘Green Paper’ with a preliminary analysis of copyright issues and suggestions for revision. Litman comments that public hearings to air what the leaders of the content industries wanted – and did not want – for the entertainment and information industries made it clear that they wanted extensive control of all use of their works and minimal government interference. Litman comments : ‘To all appearances, the Working Group staff then set out to secure it for them’ (91).

The recommendations included greater control for copyright holders (not creators) over works they produced. But they also raised a whole new spectre by predicating their legal analysis on the assertion that a work is reproduced or ‘copied’, like a book is copied, every time it is read into a computer’s random access memory.

The implications of this very basic function of all computers being interpreted as a potentially unlawful act were immense. They meant that unless paid for or covered by exemptions under fair use and library provisions, every use of or access to a digital work on a computer or other digital device could constitute a breach of copyright holders’ exclusive rights to control the copying of their work. If it were implemented

98 into law, it would mean that copyright holders would have complete, monopoly control over all and any material on computers – and that they could potentially take action against anyone accessing it without permission or payment.

The Green Paper also recommended that copyright holders should have enhanced rights to control digital transmissions of their works so that even private uses of materials such as recording and re-viewing transmissions within a private home (time- shifting), would be brought under copyright law. They added a recommendation that the first-sale doctrine, which allowed books and other tangible works to be used, borrowed and resold, not be applied to digital transmissions. This would make any subsequent uses of digital works, even if they were legally purchased or used with permission, a breach of copyright. Finally, they endorsed the use of copy-protection technology, such as DRM systems, and the banning of anti-circumvention devices that might be used to defeat such protection. Litman says the recommendations did more than make unauthorised reproduction illegal, they ‘sought to make it as close to impossible as the law could bring it’ (93).

The Working Group’s final report in the form of a White Paper was published late in 1995. Its style was different from the Green Paper, but in substance it adopted most of the recommendations – although they were framed as being in tune with the existing copyright laws. Litman says that using the tools that good lawyers use when they interpret law to resolve ambiguities in the context of new technologies, ‘the White Paper carefully explained that just about every ambiguity one could imagine, properly understood, should under the best view of the current law be resolved in favour of the copyright holder’ (95).

The White Paper was criticised by academics and some copyright lawyers, but it is not surprising that so early in the development of digital technologies, few understood its social, legal or economic implications. One critic who immediately saw problems with the proposals was academic and lawyer, Pamela Samuelson, a leading authority on legal issues in the area of intellectual property rights. In a wired.com article, titled ‘The Copyright Grab’, she enunciated the copyright ‘maximalist’ agenda, listing eight interrelated parts of the White Paper, commenting that their effect would be to allow publishers to retain their rights under existing law and quietly attain a host of new ones (1996). She claimed that implementing the proposals would be like transforming the emerging Information Superhighway into ‘a publisher-dominated

99 toll-road’. Samuelson understood that in recommending that copyright be used to control not only public but private uses of copyright material, the White Paper reforms would give the content industries far more control over the use of works in digital format than they ever had over print and analogue works. Litman regarded them as a way of using the law to implement functional control over almost all remunerable uses of copyright works, a position that would be very acceptable to the big corporate owners of copyright works (Litman 177).

Other objections came from the Digital Future Coalition, an informal alliance of academics, librarians, Internet Service Providers, consumer rights representatives, telephone companies and computer hardware and software manufacturers, none of whom had input into the White Paper and all of whom could see their interests being affected by the proposals. They were joined by the Home Recording Rights Coalition (HRRC), which had previously had some success with influencing law-makers in determining the provisions of 1992 Audio Home Recording Act (AHRA). An organisation set up to protect consumer’s rights to home-record on audio and videotape, the HRRC had been instrumental in making an amendment to US United States copyright law that enabled the release of recordable digital formats (such as Sony and Phillips' Digital Audio Tape) without fear of contributory infringement lawsuits. The amendment was strongly argued against by the music publishers who thought it would destroy their market for audio recordings (Litman, 124).

This time the objections of the interest groups did not get very far against the powerful lobbying of the movie and record industries. Samuelson says the desire of the Clinton administration to retain the political support of the Hollywood industries played a part in the extraordinary concessions made to the content owners. Journalist and academic Kate Crawford refers to their ‘cash-heavy lobbying’ for extra government protection though copyright laws (2003:179). Meanwhile, as objections delayed the implementation of the White Paper recommendations, efforts were made during negotiations for a new international WIPO treaty to introduce the White Paper’s measures into the international arena. In what has since become a familiar strategy, the plan was to ensure that greater control provisions were included in the WIPO Treaty and then return to the US to argue that it must update its domestic laws to implement the Treaty.

100 And this is just what happened. While the 1996 WIPO Copyright Treaty diluted some of the White Paper recommendations, their essence and the new anti-circumvention provisions were retained. US content owners then used US compliance with the WIPO Treaty to revive the push for updated US legislation that would address their fears about piracy and theft of American content.

The new legislation came in the form of the DMCA, which was finally passed in October 1998 and according to Tarleton Gillespie, it was arguably the most dramatic change in the history of US copyright law (2007:177). Its provisions went further than any previous extension of the rights of copyright holders and heralded a ‘new technological regime, where control depends on the tight coupling of technology, law, and licence, which share the task of regulating not just copying, but access, use, and purchase’ (177).

In the same week as it passed the DMCA, Congress also passed the Copyright Term Extension Act (CTEA) or the ‘Mickey Mouse Act’. The CTEA extended the period of copyright protection to 70 years after the death of the author and, for works of corporate authorship (works-for-hire), to 120 years after creation or 95 years after publication, whichever is earlier.

The reference to Mickey Mouse reflects the fact that the Act was passed just as the Walt Disney Mickey Mouse character was about to move out of copyright protection into the public domain. The inference is that lobbying from Disney and the Hollywood studios played no small part in the period of copyright protection being extended at this time. The CTEA is also referred to as the ‘Sonny Bono Act’ after Congressman Sonny Bono. Bono was a singer and songwriter who had sponsored a previous Bill to extend the period of copyright protection. He allegedly wanted copyright to last forever minus a day.

Had the Stationers in the 18th century had such a deal offered to them, they would no doubt have been ecstatic. In anticipation of the threats and opportunities that the new digital technologies might bring, the DMCA and the international agreements into which the big American and European content industries had so much input, had established an intellectual property regime that supported the legal right of copyright holders to distribute their content in analogue and digital form for longer periods than ever before. Copyright law now also gave them the right use new technologies not

101 just to create new works, but to lock them up – and to criminalise anyone who circumvented the locks, whether or not the works would otherwise be lawfully accessible. In Siva Vaidhyanathan’s terms, without any attention being paid to public interest concerns or indeed to authors’ specific interests as distinct from those of copyright owners, the new regime ‘essentially nullified the role of deliberation and legislation in determining copyright. It let copyright holders be copyright cops.’ (2003:159)

*****

In Australia, copyright legislation replicated English law and principles until the first federal Copyright Act in 1905. Benedict Atkinson, in his study of the history of Australian copyright, says the 1905 law was a model of clear organisation and concise prose that truly reflected Australian interests (2007:108). It was replaced by the 1912 Act, which incorporated British legislation that reflected international concerns and agreements. The 1912 Act reintroduced distribution controls that were designed to allow British publishers to control the supply of books and thus allowed copyright owners, not authors, to control the importation of copyright works into Australia.42 Atkinson says that the 1912 Act suffers by comparison with the Act it replaced. In Australia’s surrendering of legislative independence to the law-makers of the Berne Union and other international bodies, it also demonstrated the influence of the international intellectual property agencies.

In response to new technological developments, the 1912 Act introduced a generic class of ‘works’ rather than books, and enlarged the scope of copyright to include production or reproduction in any material form, thus bringing records and cinematographic films into the copyright realm. The second part of the Act, ‘the Schedule’ which comprised the British Act, provided the substance of Australia’s Copyright Law until a new Act was passed in 1968.

42 Vestiges of these arrangements exist in the parallel importation restrictions under Australian copyright law that allow Australian publishers 30 days to publish an Australian version of any book that has been released anywhere in the world. If the book is published within 30 days, all booksellers are obliged to purchase the publication from the Australian publisher and cannot import the book from an overseas publisher. The Australian Government is currently undertaking a study into parallel importation provisions.

102 The 1968 Act was based on recommendations of the 1959 Spicer report43 and was again modelled on the English Copyright Act 1956, carrying with it a ‘pattern of exploitation’ and an emphasis on economic rights (Blakeney and McKeough, 1987:9).

It introduced a new category of protected subject-matter: “Part IV – Copyright in subject-matter other than Works”. Under Part IV, copyright subsisted in television and radio broadcasts, and in cinematographic films and sound recordings as independent forms of copyright subject-matter. A new form of copyright in the printed edition of a work was also introduced (Reynolds and Stoianoff, 2005:12). Section 196 of the Act states: ‘(1) Copyright is personal property and, subject to this section, is transmissible by assignment, by will and by devolution by operation of law.’ It left no doubt that a copyright was a property right protected by law.

Speaking particularly of its provisions relating to the increasingly important area of broadcast rights, Kathy Bowrey points out that the 1968 legislation was controversial for a number of reasons. One of them was its ‘failure to offer anything to authors, composers and playwrights’ of broadcast works’ (2007). She notes that academic criticism focused on the legislation’s support for the big broadcasting companies and its lack of support for the creative people at the centre of the music and writing worlds.

From its beginnings, and although it was defended by the then Attorney-General, Lionel Bowen, as a reasonable compromise between conflicting interests, the 1968 Act had a bias towards economic property rights. It clearly protected the interests of those who owned and sold copyright works, rather than those who created them or used them. Subsequent reforms in 2000 and 2006 to accommodate further changes in technology and to harmonise with international treaties (WIPO and TRIPS) and the Australian/United States Free Trade Agreement (AUSFTA) can also be seen to have shored up the interests of big companies, with few concessions either to individual creators or to users.

In relation to today’s copyfights, the most significant changes in Australian law came with the Copyright (Digital Agenda) Amendment Act 2000 (the CADA) and the Copyright Amendment Act 2006 which implemented Australia’s obligations under the

43 The Report was produced by the ‘Spicer Committee’, the Australian Copyright Law Reform Committee of 1959

103 AUSFTA. According to the Attorney-General’s Department (AGD), the CADA introduced major reforms to ‘update Australia’s copyright regime to take into account the rapid development of new technologies’ and to ‘continue to promote creative endeavour whilst allowing reasonable access to copyright material through new communications technologies’ (AGD, 2001). In fact, it introduced a new technology- neutral exclusive right of communication to the public and a statutory licence scheme for the retransmission of free-to-air broadcasts. It carried the old print-oriented exceptions to exclusive rights into the digital arena, and it brought in new enforcement measures and provisions to limit the liability of Internet Service Providers (ISPs).

In relation to the Act that implemented the ‘harmonisation’ with US laws as required under the AUSTFA, Atkinson says that the 2006 Act was shaped in ‘ways calculated to please copyright proponents’ (405). It redefined the legal meaning of a technological protection measure (TPM) and strengthened the copyright owner’s rights by providing criminal sanctions against circumvention of TPMs. It also extended the period of copyright protection from 50 years after the death of the author to 70 years. As well, it made copyright law all but inaccessible to anyone other than copyright lawyers. As Atkinson points out the law itself, which numbered 112 pages in 1968, was by its March 2007 reprint, a document of 678 pages (406).

The introduction of new enforcement measures relating to circumvention devices and to rights management information, fuelled the copyfights in Australia. Like the similar reforms under the DMCA in the US, they were ostensibly to provide copyright owners with an effective means of enforcing their rights in a digital environment. They were aimed at combating online piracy, which was genuinely feared by copyright holders who saw the Internet as a threat to their control of the uses of their work. But the reforms had ramifications far beyond this.

Unlike the US legislation, the Australian Act did not proscribe the actual use of a circumvention device but it provided both civil and criminal sanctions against the manufacture, sale, importing, marketing or supply of such devices. In other words, circumvention devices were all but outlawed – and with them went the opportunity to access works that were digitally locked by TPMs. This was the case even if the works

104 were otherwise lawfully accessible under fair dealing provisions for research and study, criticism and review, reporting the news and professional legal advice.44

The tacit acknowledgement within the 2006 Act of the legitimate role of TPMs to encrypt copyright works signalled a success for copyright maximalism and a major change in copyright thinking. Tarleton Gillspie sees it as the introduction into cultural distribution of the traditions previously associated with secret military operations. He says it is a form of content protection, not copyright protection (2007:247). Certainly the assumption behind the support for digital locks reflected copyright maximalism. It affirmed that content owners had absolute property rights in their works and that incursions on those rights constituted the criminal offence of theft.

The Australian Copyright Amendment Act 2006 has been described by Matthew Rimmer as the result of the process of ‘executive treaty’ (2006:4). He and other critics of the AUSFTA claim that the consultations over the arrangements in Chapter 17, which dealt with intellectual property rights, were inadequate and lacking in transparency and accountability. And they took no account of existing recommendations by the Australian Intellectual Property and Competition Review Committee which had not long before found no justification in Australia, as a net importer of copyright, to extend the period of copyright protection beyond 50 years. Rimmer says:

The main supporters for the copyright provisions of the AUSFTA were multinational companies operating in publishing, music, film, and computer software. They were supported by copyright collecting societies, and industry think-tank organisations, such as the Australian Copyright Council…. Corporate interests were dominant in the lawmaking process. (3)

The May 2004 submission to the Joint Standing Committee on Treaties on the AUSTFA from the Australian Copyright Council (ACC), a copyright organisation that receives assistance from the Commonwealth Government, was supportive of the AUSTFA copyright provisions (ACC Submission, 2004:3). So were the comments made by Michael Fraser, the Executive Director of Copyright Agency Limited (CAL), the Australian copyright collecting society for authors and publishers, in an appearance at the Committee’s Sydney hearings in May, 2004 (Fraser, 2004:33). Both

44 Some limited ‘permitted purposes’ for making interoperable products, to correct errors, security testing and for some other non-commercial purposes were included in the Act.

105 referred to a 2003 report by the Allen Consulting Group on the costs and benefits of extending the term of copyright (2003). The report was commissioned by the Motion Picture Association of America (MPAA), the United States copyright owner group that represents Walt Disney, Sony Pictures Entertainment, MGM, Paramount Pictures, Twentieth Century Fox, Universal Studios and Warner Brothers. It was supported by CAL and by two other collecting societies: the Australasian Performing Rights Association and Screenrights. The report concluded that while the costs and benefits are probably finely balanced. ‘….on the balance of probabilities Australia should move to extend the term of copyright protection to bring it into line with Australia’s major trading partners…’ (2003:35).

The collecting societies and the ACC seemed to concur that as copyright was a good thing – and the basis of their organisations – then more and longer copyright must be a better thing for them and their members. None of them, it seems, was very concerned about the implications of extending the term of copyright while retaining Australia’s fair dealing provisions, which are less generous than the US fair use provisions. That this might impact on the viability of a public domain of cultural works – and thus eventually on all creators who have traditionally drawn from it – was all but ignored. So was other evidence from the Intellectual Property and Competition Review, the Copyright Law Review Committee and the Phillips Fox Digital Agenda Review. Cultural groups, such as the Australian Library and Information Association, expressed concern about the inclusion of intellectual property provisions in a bi-lateral agreement between two countries where one was the biggest exporter of in the world of knowledge and information products and the other a net importer, still struggling to make its own knowledge and information industries viable (Rimmer, 2006:3).

The harmonising of Australia’s laws with those of the US under the AUSFTA, has been described as trading Australia’s intellectual property for a lamb chop, a reference to the government’s focus on the benefits for Australia’s primary industries at the expense of its enhanced participation, as a nation, in the information and entertainment industries (Spender, 2007). Bowrey points out that the process leading up to the AUSFTA involved considerable space for US government and global owner interests at the negotiating table – but no such respect for the views of the many civil

106 society interest groups that made submissions or argued against the agreement and the subsequent changes to Australia’s copyright law (Bowrey, 2005:188).

The result of the CADA and the AUSFTA amendments to Australia’s copyright laws has been a strengthening of the property rights accorded to the content owners under the new digital legal regime – and of the legal rights that protect them. In Australia, the US and Europe, the ownership of knowledge, information and knowledge products remains firmly vested by law in the hands of the big media companies who control content and who, according to commentators such as Drahos and Braithwaite, also controlled the processes though which the laws were formulated and came into effect.

Authors’ ‘property’ rights in their work, while still existing in law, are also still inextricably bound to the publishers to whom they assign or license their work. With books and scholarly works, this is often for no payment when authors assign their work to a publisher.45 Under licensing agreements, authors commonly receive either a royalty payment of between 5-10% of the recommended retail price of a work for ‘trade’ publications or 3-5% of net receipts for children’s and educational works.

Users and readers whose interests were first articulated in the Statute of Anne in its reference to ‘the Encouragement of Learning’, are now finding that their access to digital works may be inhibited by technological locks and anti-circumvention provisions that physically override the fair use and fair dealing provisions of the law. For digital natives who have experienced the new-found freedoms of collaboration and sharing on the Internet, copyright maximalism and the power and influence of the copyright industries have produced laws that obstruct digital practice and impede digital innovation.

Instead of facilitating the changes to cultural production envisaged by the early participants in the new digital culture, national laws and international intellectual property agreements now embody a copyright maximalist ideology that condones the use of digital technologies to control and limit new digital products and platforms. DRM systems that trace and record even the private use of digital works are protected by law, indicating that Rick Falkvinge’s dilemma about the choice between retaining

45 Academic authors frequently assign the interest in their work to scholarly publishers for no financial reward – and in some cases even pay a fee to have their work published.

107 the right to private communication or relinquishing it to copyright controls has been resolved in favour of the latter. As Professor G Lunney says, copyright law now ‘restores to today’s copyright owners the same combination of technological and legal control over the publication and dissemination of works enjoyed by the Stationers’ Company more than 300 years ago’ (2001:819).

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5 The copyleft and the elusive copyright balance

In 1984 or 1985, Don Hopkins (a very imaginative fellow) mailed me a letter. On the envelope he had written several amusing sayings, including this one: “Copyleft – all rights reversed.” I used the word “copyleft” to name the distribution concept I was developing at the Time.

Richard Stallman: Free Software Free Society: Selected Essays (2002:21)

The copyright regime established to protect the ownership and control of valuable copyright work in the digital environment has provoked a reaction from the increasingly vocal copyleft movement. Not unlike the dissidents who challenged the power and influence of the Stationers when print technology disrupted the mores of the 16th century and 17th centuries, the copyleft have begun to challenge the influence and control of the content industries over new digital technologies. They are particularly critical of the imbalance evident in the current legal regime that protects the private interests of the copyright incumbents at the expense of the greater public interest in digital innovation and access to knowledge. As previously mentioned, their protests range from deliberate defiance of the law to proposals for its reform and challenges in the courts.

The word ‘copyleft’ first gained currency when it was adopted by Richard Stallman in the mid-1980s to describe the terms for distributing his ‘all rights reversed’, non- proprietary software (2002:20). His copyleft was a protest against the privatisation of computer software that he thought should be shared, but it is now recognised as an umbrella term covering a social and legal protest movement against excessive copyrights or ‘paracopyright’, as it has been called (Jaszi, 1998).

Richard Stallman’s use of ‘copyleft’ rather than ‘copyright’ and his ‘all rights reversed’ rather than ‘all rights reserved’ cleverly encapsulated his concerns about the corporate software industry appropriating the right to own and control software code. Just as early users of the Internet shared personal and professional communications, early software developers freely shared information about computer source code. But

109 as software programs became commercially valuable and were included under the rubric of copyright law, they became marketable commodities. The growing software industry began to ‘privatise’ them, preventing developers from collaborating and sharing their work.

Stallman and others objected to software being ‘owned’ (45). Stallman determined to develop an open software operating system that could be distributed outside the commercial marketplace and, primarily because of his work, the ‘GNU’ operating system and the ‘GNU’ General Public Licence (GNU GPL) were devised. Stallman explains that the name ‘GNU’ was chosen following a hacker tradition as an acronym for ‘GNU’s Not Unix’, Unix being the existing software system with which GNU was to be compatible for portability reasons (17). The licence allows users to run the GNU program, copy and modify it and to further distribute modified versions. Its difference from proprietary models lies firstly, in that anyone can access and modify or improve the system and secondly, in the additional requirement that modified versions must also be made freely available. But the term ‘free’, Stallman says, is a matter of freedom, not price (48).

Open source software, like ‘free’ software products, also developed from the collaborative practices of the hacker, sharing culture of computer programmers. But Stallman says open source is a development methodology rather than a social movement, like the Free Software Movement that he founded. The two are similar in their open access to the software source code and the collaborative model of modification, but unlike free software, open source products involve some restrictive licensing. Stallman says the two movements are separate, with different views and goals, but are ‘like two political camps within the free software community’ (55).

Together they form a subversive copyleft alternative to what could be called the ‘Microsoft model’ of software sale and distribution. Enabled by digital technology, they have led to and influenced other movements that advocate more collaborative and less proprietary models of production and distribution of digital works such as open-source journalism, open access scholarship, access to knowledge (A2K), open (user-generated) content, open source documentary and film production and even open source fiction-writing. Wikipedia, the free content encyclopaedia with 10 million voluntarily contributed articles in 250 languages, is based on open source wiki software. It has become the largest research site on the Internet and its open source

110 software has been adopted into many other knowledge-management and content- management systems.

The existence and market penetration of free and open source operating systems, (sometimes referred to collectively as ‘FOSS’ for ‘Free Open Source Software’ or ‘FLOSS’ for ‘Free/Libre/Open Source Software’), as alternatives to commercial systems is significant. Firstly, they visibly demonstrate the viability of non- proprietary business models in the digital environment. Secondly, their popularity and success provide support for the copyleft philosophy of a more collaborative approach to dealing with information and knowledge products.

FLOSS products are increasingly being recommended and adopted by digital enterprises and by governments in both developing and developed countries. For example, a 2006 study of the economic impacts of open source software on innovation and competitiveness in Europe, financed by the European Commission’s Directorate General for Enterprise and Industry, found that along with cost savings, the adoption of FLOSS ‘orientates the technology towards interoperability and loosely coupled systems that permit user innovation at low entry cost’ (Ghosh, 2006: 192). Importantly, in its acknowledgement of the values of digital culture, the Report stated:

FLOSS-based innovation provides an entrepreneurial model that is more adapted to the European cultural environments than proprietary innovation. It could reconcile the strong humanitarian and ethical commitment in the European youth with technology innovation. (185)

Based on an analysis of six organisations in different European countries, the Report claimed that in almost all cases, a transition towards the adoption of open source systems indicated savings on the long-term ownership of software products (283). Its conclusions pointed to the social and economic benefits of a copyleft model for the production and distribution of software.

The ongoing battle between FLOSS produsers and the producers of proprietary software that started with Stallman and his free software has been referred to as the ‘software wars’. The free software Linux-watch website refers to the ‘software wars’ map, conceived in 1998 by Chinese programmer Li-Chen Tai and since updated by Steven Hilton. Hilton was unable to contact Li-Cheng Tai when the latter ceased

111 updating the site but, reflecting the collaborative values of digital culture, he is quoted on the website saying that he hopes the map’s creator will be flattered rather than offended by his actions (Linux-Watch website, 2008).

Map of the Software Wars46

The map traces the developments in and connections between open source and proprietary software. Hilton describes it as ‘a graphic map depicting the epic struggle of Free and Open Source Software (FOSS) against the Empire of Microsoft’ (Steven Hilton website, 2006)

But author Michael Strangelove sees that the differences between the two are not just in the competition for market share. He argues in his book Empire of the Mind: Digital Piracy and the Anti-Capitalist Movement that the practices of an Internet community immersed in free and open source culture should not be underestimated. He describes them as part of the growing forces of resistance that must be accounted for within models of online behaviours (2005:8). Free to produce and disseminate their own version of the world, he considers that their modes of non-commercial

46 The Map, as reproduced in the text, is available on Steven Hilton’s website at http://www.mshiltonj.com.

112 cultural production not only challenge proprietary software, they have the potential to undermine the definition of capitalism and ‘its’ commercial media. He connects the basically unregulated, distributive models of online behaviour with cultural forces that enable the resistance, evasion and subversion that inevitably lead to conflict between consumer behaviour and the law (56).

As described in the previous chapter, that conflict now centres on developments that have tipped the copyright balance against a greater public domain of cultural works and the more open and more collaborative digital culture that might be fostered through new technologies. Reflecting the concerns articulated in the policies and principles of the Pirate Party, these international legal developments include:

- continued extensions of the period of copyright protection that have expanded the private domains of copyright owners but depleted the public domain of accessible works; - the encoding of a regime that has privatised knowledge and cultural works and created what Lawrence Lessig describes as a ‘permission culture’ (2004) that criminalises file-sharers and obliges users to comply with the terms of access set by copyright owners; - the legalising of DRM systems that allow works to be ‘locked’ against user access and which allow copyright owners to control and track customer usage; and - anti-circumvention provisions that criminalise the circumventing of digital locks, regardless of purpose.

At a more philosophical level, many of the copyleft argue that copyright laws are now complicit in holding back digital innovation, cultural heterogeneity and the development of a more democratic and egalitarian global knowledge economy.

*****

While it has had high profile members in the academic, creative and legal communities as well as activists and hackers, the copyleft has until recently had limited impact on law and policy. Copyleft objections to the new digital laws being formed at a policy level were sometimes dismissed as utopian and idealistic and sometimes as subversive and anti-capitalist. But initial objections from the copyleft to the changes to copyright laws in response to digital technologies were also quite

113 diverse. Some focused on free speech and freedom of information issues, others on the enclosure of the intellectual commons. Digital natives like Stallman targeted the privatisation of software and others objected to laws that prevented them from using digital technology to develop new products or to file-share and download works from the Internet.

The result was that their diverse ‘public’ interests were mainly overshadowed by the very specific, private interests of the copyright maximalists whose history of successful lobbying and advocacy dated back to the Stationers’ Guild. Without one coherent ‘voice’ it was difficult for the copyleft to lobby effectively. Without the resources of bodies such as the record, movie or publishing industry associations that have demonstrably been instrumental in determining the direction of copyright law and practice, the copyleft had limited political clout. In fact, as Jessica Litman has revealed in her research into developments in copyright law, representatives of public interests were simply not invited to the copyright table where industry representatives negotiated the compromises that led to new legislation (2001:127).

As mentioned in the previous chapter, Australian legal academic, Kathy Bowrey, also asserts that public interest groups and consumers have rarely had a voice in the framing of copyright laws, which she claims have mainly been agreements between lawyers representing industry and commercial interests. Bowrey points out, for example, that in the context of Australia’s accession to the intellectual property requirements of the AUSFTA, there was space made in negotiations for US government and particular global interests to assert their preferences. However:

…. there was no corresponding respect for unwelcome Australian perspectives from civil society interest groups like the Electronic Frontiers Australia (EFA), Australian Digital Alliance, Australian Consumers Association, Australian Library and Information Association, local free software and open source advocates, IP academics or even passing reference to the findings of the governments own IP expert committees. (2005:188)

The result, Matthew Rimmer contends, was ‘a windfall for multinational entertainment companies, much to the detriment of copyright users and consumers’ (2006:29). Similarly, when the period of copyright protection was extended to 70 years in the US, Rimmer asserts that Congress was heavily lobbied by copyright

114 owners and was the captive of corporate interests. There was little debate and politicians largely ignored the protests from copyright users (2003).

But on the ground, outside the machinations involved in the development of new laws as described by Drahos and Braithwaite, the disparate voices of the copyleft started to cohere when some far-sighted commentators such as John Perry Barlow, and Siva Vaidhyanathan registered the dramatic changes that digital technology would inevitably bring. Barlow, an American poet, political activist and a founding member of the EFF, foresaw the social and economic disruption that would accompany a technology that enabled all forms of expression to be represented by the digitised ones and zeros that he called ‘vaporous cargo’ (1994:1). Academic and writer, Siva Vaidhyanathan, referred to the ‘digital moment’ when digitisation collapsed the print- based distinction between accessing, using and copying a work (2001:153). He recognised that ever-cheaper access to digital technology, the Internet and the World Wide Web had also collapsed the distinction between producers and consumers and between global and local concerns. He saw that these factors, combined with global networks that allowed people to share expressions over vast distances in virtually no time (and at no discernible marginal cost) heralded fundamental changes to the way information could be produced and distributed (52). They also completely undermined the laws that were moulded to control physical products. They led the prescient Barlow as early as 1994 to anticipate future legal problems when he said that ‘[I]ntellectual property law cannot be patched, retrofitted, or expanded to contain digitized expression…’ (1994:1).

The content owners of the copyright industries also registered the digital moment. They were aware that the distributive power of digital technology and the collaborative practices that it allowed, threatened their control of the production and distribution of content. Consequently, when digital technology and the ‘Information Superhighway’ became issues of government concern, the content owners used their resources to argue for additional legal protection in the new environment where ‘copying’ was so easy and so potentially damaging to their businesses.

Mainly through their industry associations, the copyright industries at the same time embarked on a campaign to demonise copyleft advocates and to exclude them from the arenas where law and policy were developed. Internet enthusiasts, particularly file-sharers, were portrayed as pirates and left-leaning ‘dot.communists’. Constant

115 references in public and political discourse to ‘digital thieves’ and ‘Internet pirates’ generated an element of moral panic, a fear that the Internet and file-sharers (and peddlers of pornography) would undermine not just commercial businesses, but the moral fibre of the community. Trading on the popular fear of communism, Stephen Manes, an influential journalist with Forbes Magazine suggested that Lawrence Lessig’s book Free Culture be renamed Freeloader Culture: a Manifesto for Stealing Intellectual Property (2004). The communist bogey became so commonplace that Dan Hunter at New York Law School referred to copyleft principles as a sort of ‘Marxist-Lessigism’ (2004:15).

Much of the demonising came directly from the ‘property’ and ‘piracy’ talk promulgated by the President and CEO of the Motion Picture Association of America (MPAA), Jack Valenti. During the decade of the 1990s, Valenti was a powerful lobbyist for the Hollywood movie industry. According to Tarleton Gillespie, Valenti ‘offered up a compelling tale about sin and redemption in order to reframe public discourse about the Internet’ (2007:108). In particular, Gillespie identifies Valenti as instrumental in the construction of file-sharing as theft, making what might have been a potential business model into a legal issue about the inviolability of personal property. In what can now be seen as a deliberately constructed narrative, Valenti characterised uncontrolled digital technology as both an economic and moral threat.

Whether the copyleft were regarded as communists, utopian idealists or deliberate saboteurs of the content industries, their arguments were initially largely dismissed by governments and ignored by the mainstream media. Concerns about the impact of proposed changes to copyright law mainly circulated in academic, civil liberty and technology communities. For the popular media and the political leaders who themselves knew little of the reality of digital technology or the potential of the Information Superhighway, framing the debate in terms of good and evil, property and piracy offered a simple approach to what were in reality complex and challenging legal and cultural issues. The polarised debate helped to undermine the arguments of the copyleft. Siva Vaidhyanathan expressed it succinctly saying:

What happens when all questions of authorship, originality, use, and access to ideas and expressions become framed in the terms of “property rights”? The discussion ends. There is no powerful property argument than can persuade a people concerned about

116 rewarding “starving artists” not to grant the maximum possible protection. How can one argue for “theft”? (2001:12)

But as the debate moved further into the legal sphere, as it did with Valenti’s campaign to strengthen the law and with the Clinton administration’s proposals in the Green Paper (1994), then White Paper (1995) and in international copyright agreements, the law came into focus as the copyright battleground, just as it did in the 18th century.

Tarleton Gillespie suggests that the ‘compelling power and cultural authority of legal discourse’ contributed to the law becoming the battleground for the copyfights over digital culture and practice (2007:114). But so did the greater resources of the content industries and the in-house lawyers of their industry associations who, like the RIAA, could afford to take expensive legal action against perceived infringers. Certainly the content industries had 300 years of evidence that the law could be gainfully used to protect their property interests against theft and free-riders. Valenti thought that if file–sharing and downloading from the Internet were theft of property, then the law should be used to stop it. In Valenti’s framework, the law was the appropriate vehicle to prevent piracy and stave off the threat to the viability of the content industries (111).

Confronted by pressure from the powerful and vocal content industries to protect them from uncontrolled digital copying and free-riding, copyright policy makers were faced with either relinquishing some control over copyright or expanding it to regulate access and use, ‘despite the chilling effect this might have on creativity, community and democracy’ (Vaidhyanathan, 2001:153).

As Vaidhyanathan explains in his book Copyrights and Copywrongs, the lawmakers had a choice at this ‘digital moment’ (149-184). They could have decided to view digital reproduction as qualitatively different from analogue reproduction and devised more flexible laws that preserved a balance between copyright owners and the produsers who were developing new digital products and platforms. Had the arguments of the copyleft been taken more seriously, policy-makers could have conceived a different approach based on different notions of economics and the public good.

117 At its simplest level, this might have been an intuitive system based on creators and users understanding a distinction between a commercial marketplace and a non- commercial commons. Alternatively, law-makers could have considered a regime that altered the emphasis from protecting copyright owners (who were arguably already well-protected by copyright law) to one that focused on the positive value of the public domain. This might have involved the delineation of a free-use zone, where works marked as ‘pd’ for public domain would form an accessible and usable digital commons.

Another possible approach could have consisted simply of expanding and clarifying ‘fair use’ or ‘fair dealing’, making each a positive legal right rather than an exception to the owner’s rights. Specifically, revised fair use and fair dealing provisions could be based on the assumption that users had a right to ‘fairly’ use existing works. The onus of proof of copyright infringement would then be placed on the owner or litigator who claimed the use was unfair. Thus if copyright owners wished to contest unauthorised reuse of their work, they would have to prove that the usage did not result in anything new, beyond the original work. However, if the new work was judged to transform, rearrange, or recompose the appropriated material into a new work, then it should be seen as a valid fair use. It would be a legitimate, ‘new’ product, not an infringement of copyright.

Any of these modifications could have acted as a brake on the monopoly control of the content industries. Even a semblance of balance might have avoided a series of precedent cases in the US where fair use was challenged by copyright owners in expensive litigation, making users wary of using copyright works without permission, even when they thought their use was ‘fair’ and lawful (Heins and Beckles, 2005). Support for some modification to the law also might have given the content industries pause to consider their vigorous campaign of issuing ‘cease-and-desist’ and ‘takedown’ notices that not only threatened users with impossibly expensive legal action but encouraged the growth of a range of copyleft organisations and the growth of the copyleft protest movement.

But the decision was made to strengthen copyright law. With the US government visibly concerned about attracting content owners to invest in the Information Superhighway for both commercial and cultural reasons, law and policy-makers acceded to the demands of the copyright industries. They recommended that the

118 existing law be modified to provide at least the same level of protection over the reproduction of ephemeral, digital works as for analogue works. This inevitably meant altering the law to provide greater regulation of consumer access and use of digital works.

Greater regulation and control over digital works drew the attention of the copyleft directly to the particular provisions of the law that affected what copyright scholars have referred to as the ‘copyright balance’. Sometimes expressed as the balance between private interests and the public good, sometimes between copyright owners and users, or between commerce and the commons or between the evil of discouraging competition and the virtue of encouraging innovation, in each case it is a reference to a sense of fairness in the law in its adjudication of competing copyright interests.

The policy basis for the copyright balance can be found in both the English Statute of Anne of 1710 and the American Constitution. In both there is a clear intention to provide a balance between the interests of authors, publishers and users. The Statute of Anne explains that it is ‘An Act for the Encouragement of Learning, by Vesting the Copies of Printed Books in the Authors or Purchasers of such Copies, during the Times therein mentioned’. The statutory right was intended to reward copyright owners for their work and investment and to provide an incentive for them to produce further works for the benefit of the public. This, combined with a limited period of protection, was to bring order to the industry and encourage learning. Similarly, the US Constitution, article I, §8, gives Congress the power ‘To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries’. This too implies a balance between the rights of authors and inventors and those of the public who benefit from the progress of science and the useful arts and from free access to the works after the time limit imposed on the exclusive rights has expired.

And until the legal digital moment, a balance, at times elusive and almost always uneasy, had arguably been operating between private property interests in copyright works and the public interest in their access and use. That the balance was uneasy, even before the disruption of digital technology, is demonstrated by the intermittent copyfights from the 17th century and by the numerous cases in the courts in the UK, the US and Australia where it has been tested. It is encapsulated in Tarleton

119 Gillespie’s observation that copyright is a ‘precarious balance’ between public good and private gain (2007:21).

Nevertheless, from the time of the Statute of Anne in 1710, copyright law did play a role in creating a balance by acknowledging both creators’ interest in their work and ‘society’s competing interest in the free flow of ideas, information and commerce’ (US Supreme Court, qtd. in Heins, 1). It did this in both legislation and case law through a system of what Marjorie Heins refers to as ‘four free expression safety valves’ (2003:8).

One safety valve was the effect of limited term of protection that allowed for a public domain of works to be built. Others were the concept of fair use (or ‘fair dealing’ in Australia), and the ‘first-sale’ rule, both of which allowed legitimate uses of copyright works.47

The fourth ‘safety valve’ was the idea/expression dichotomy, which had long dealt with the difficult problem of whether individuals could actually ‘own’ knowledge and information, by separating the ideas in a work from their expression. The idea/expression dichotomy contributed to the balance by protecting a creator’s ‘original’ work (such as their language, plot structure and characterisation) but not facts or ideas, allowing the latter to remain free for others to use.

Case law and then legislation in the US and other common law countries determined that it was only the expression, and not the ideas, that the law protected. For example, in the 1879 US case of Baker v. Selden, the facts turned on whether or not a book- keeping system attracted copyright protection and whether another version of the same system was a breach of copyright.48 The decision on appeal from the Supreme Court (which canvassed the differences between patent and copyright) was that the book-keeping system was not a lawful subject of copyright. Justice Bradley stated:

The description of the art in a book, though entitled to the benefit of copyright, lays no foundation for an exclusive claim to the art itself. The object of the one is explanation; the object of the other is use. The former may be secured by copyright. The latter can

47 Fair use provisions under US law and fair dealing provisions under Australia law and somewhat different. Australian law has been amended recently to allow parody, limited format shifting and time- shifting. 48 Baker v. Selden 101 US 99 (1879).

120 only be secured, if it can be secured at all, by letters-patent. (Baker v. Selden, 1879: par.13)

The essence of this decision was later encoded in the US Copyright Act, (Title 17, Chapter § 102(b)) which states: ‘In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.’

Similar decisions were made in England in the case of Donoghue v. Allied Newspapers Limited49 and in Australia, in Victoria Park Racing and Recreation Grounds Company Limited v. Taylor.50 Both were taken broadly to confirm that there is no copyright in an idea or in ‘ideas’.

The safety valves embodied in the limited term of protection, the idea/expression dichotomy, fair use and the first-sale rule formed what Siva Vaidhyanathan calls ‘thin’ copyright protection. Its value lay in it being just strong enough to reward aspiring artists, writers and musicians but porous enough to allow full and democratic speech and the free flow of information and in doing so, to provide a copyright balance (2001:5).

Copyleft advocates realised that all four safety valves had been lost in the haste to devise laws that protected the content industries from the effects of digital technologies. The new laws had devalued and diminished the public domain through the repeated extension of the terms of protection for copyright works and through the effects of TPMs that locked digital works even after their copyright period had expired. The fair use concept had been undermined by DRM systems and by the apprehension among users that their use of copyright works might be legally challenged. The first-sale rule was being overridden by DRM systems and by many content owners adopting limited conditions of use and access in the ‘licensing’ of their products. The idea/expression dichotomy had simply been rendered obsolete by a technology that encoded all ideas and expression in zeros and ones and by laws and case law that failed to acknowledge the full complexity of this new form of communication. DRM systems, for example, by locking up both the idea and the

49 Donoghue v. Allied Newspapers Limited (1938) Ch 106 50 Victoria Park Racing and Recreation Grounds Company Limited v. Taylor (1937) 58 CLR 479 (Farwell, J at 498).

121 expression, had blurred the distinction between the two. Both were now controlled and required permission or payment for their lawful use. Collectively, the loss of the safety rules had enabled copyright owners to control both public and private uses of works, creating what Lessig calls a ‘permission culture’ (2004).

Jessica Litman summed up the changes by recognising that they publicly transformed copyright into the ‘rightful’ property of its owners (81). She says because of the changes to the law, the basic ‘right to read’ was lost (182). This was amply demonstrated in Adobe’s e-book version of Alice’s Adventures in Wonderland where the list of ‘Permissions’ associated with the electronic version contained a prohibition saying ‘This book cannot be read aloud’ (qtd. in Lessig, 2001). The loss of such a basic right epitomised the loss of balance in the legal regime and directed the copyleft to the law to redress the imbalance.

Litman’s reference to the loss of the right to read highlights the effects of the decision of the law and policy-makers to apply the same legal regime to digital works as had been used for analogue works.51 By equating digital reproduction with copying, the whole basis of the access to digital works was challenged.

While users in the analogue world cannot reproduce or copy a book without permission, under the first-sale rule they can lawfully read it, lend it, scribble on it and even resell it. But in a digital world, every access and use is arguably a form of reproduction and thus unlawful copying. To access the image of a work on a computer is to access a reproduction or a copy. Emailing it to a friend involves copying the copy. Borrowing, sharing, reading, downloading, printing – all involve a reproduction. By treating digital reproduction in the same way as analogue reproduction, every one of those activities became a potential breach of copyright law.

This meant that under the changes proposed in the 1995 White Paper, users would have no access rights without seeking permission or a licence to copy, unless the law specifically enumerated access for purposes such as fair use. Suddenly, any bargain between creators and the public was gone, as was the digital equivalent of the public’s right to ‘read’ printed works.

51 Yochai Benkler identifies the early decision of the Ninth Circuit Court of Appeals MAI Systems Corps v. Peak Computer, Inc., 991 F.2d 511 (9th Cir. 1993) as the first time that Random Access Memory (RAM) copies were treated in case law as ‘copies’ for the purposes of copyright, a position that was not later rejected by other courts. (The Wealth of Networks (2006) p 440)

122 Many of the copyleft who understood the imbalance that this represented were galvanised into action. Explained in Samuelson’s terms as a ‘copyright grab’, analogous to a real estate property grab, the extension of the power and dominion of the content industries over copyright works became clearer. It introduced content owners’ rights to use copy protection technology, backed by provisions that prohibited circumvention. It banned the ownership or sale of devices that might be used to defeat the protection. These provisions overturned any idea of balance in that they could be enforced, regardless of the user’s lawful reasons for access. For the copyleft, this further moved the focus of the battle not just on the rhetoric or the monopolistic business practices of the copyright maximalists, but on direct confrontation with these proposed new laws.

The publication of the 1995 White Paper in the US led Law Professor Peter Jaszi to marshal a range of people opposed to the increased security of ownership for content rightsholders. In one of the earliest coordinated ‘copyleft’ protests, they formed the previously mentioned Digital Future Coalition (DFC) whose members recognised that the changes to the law would severely restrict the efforts of educators, businesses, libraries, consumers and others to access copyright works and to take advantage of the benefits of digital networks.

Initially a small group, the DFC gained credibility when it was joined by the Home Recording Rights Coalition (HRRC) and other representatives of the technical community. Their efforts raised enough public support from consumer, public interest and civil liberties groups to challenge the White Paper’s proposed National Information Infrastructure Protection Act and they lay some claim to its ultimate stalling. The DFC also attended the 1996 WIPO Conference where it claims:

the DFC worked to ensure that any agreements reached during the conference did not limit existing rights provided for under U.S. copyright law, and did not affect the ability of the United States to establish new rights to benefit the public interest. The DFC successfully participated in the creation and adoption of agreements that explicitly recognized the need to protect copyright owners, encourage information distributors, and assure public access to information. (DFC website, 2008)

But as Litman points out, the DFC was more a ‘behind-the-scenes’ coordinator of its members’ activities than a participant in the industry negotiations (127). Nor was it a

123 subversive, activist group. Its efforts coalesced copyleft concerns, but without broader support or a seat at the copyright table, its impact was inevitably limited.

The dangers of the legislation proposed in the White Paper were a catalyst for Pamela Samuelson, who as previously mentioned, had set out the copyleft arguments in 1996, demonstrating the ways in which the proposed laws would allow copyright owners to control private as well as commercial uses of their work. She exposed the fallacy of the argument that no-one would have the incentive to put works onto the Internet unless the law was changed by drawing attention to the phenomenal growth of the World Wide Web and the content already – and willingly – made available (1996).

Importantly, Samuelson debunked the scare tactics of the content industry representatives and the credentials of Bruce Lehman, the former copyright industry lobbyist who now had control of the passage of the new legislation. After analysing the proposed changes and their likely effects in her 1996 article, she urged people to protest against the proposed legislation. Her article used digital hyperlinking to connect to the website of the DFC where ‘interested parties’ could post comments about the issues raised in the article. Contact details for Bruce Lehman and for the sponsors of the Bill were provided, presumably in the hope that people would email or write to them and protest.

Also in 1996, law professor James Boyle, published his book Shamans, Software and Spleens. In it Boyle broadened understandings about the connections between law and information and drew attention to the ways in which the prevailing focus on the ‘genius-author’ tended to diminish the importance of the public domain. He said it leads to ‘too many intellectual property rights, to confer them on the wrong people, and dramatically to undervalue the interests of both the sources of and the audiences for the information we commodify’ (xi). Importantly, he also drew attention to the need for coalition politics on the issue of the privatisation of the public domain. He commented that journalists and rap musicians should realise that they have interests in common with developing nations and that all needed to understand the connections between their different battles in order to see the overall picture of the private/public struggle (168).

Boyle later developed his ideas in an influential article in which he drew an analogy between the enclosure of the arable commons during the agrarian revolution and the

124 enclosure of the intellectual commons under the new digital laws (2003[2]). The enclosure trope provided a convincing and credible analogy for the copyleft to use in their arguments about developments in copyright law and the tipping of the balance against users’ interests. Additionally, Boyle extended the trope to compare the copyleft’s support for the enhancement of the public domain with the environmental movement. He drew a parallel between the structural, legal and scientific reasons for bad environmental decisions that led to the failure to preserve the environment and those that have led to the disappearance of the public domain. By pointing to the power of concepts like ‘the environment’ and ‘the public domain’ to clarify and reshape perceptions of self-interest and individual rights, he contributed to copyleft theory and philosophy. In doing so, he gave the movement a way of discussing the public domain in terms of the common good, taking the copyfights to a higher level of abstraction and to new solutions demanded by new forms of social and economic organisation. In an article on ‘the second enclosure’ movement and the construction of the public domain, he said:

The concept of the environment allows, at its best, a kind of generalized reflection on the otherwise unquestionable presuppositions of a particular mode of life, economy, and industrial organisation. At their best, the commons and the public domain can do the same in helping us to reimagine creation, innovation, and speech on a global network. And this seems particularly important today. (2003[2]:74)

Included at the end of Boyle’s 1996 book was the text of ‘The Bellagio Declaration’ that was made at the Bellagio Conference on Cultural Agency/Cultural Authority.52 Drafted in 1993, the Declaration encapsulated many of the issues relating to intellectual property that attracted the copyleft.

The Bellagio Declaration called for a rethinking of the ‘unjust and unwise’ international intellectual property regime that often excluded the scientific and artistic contributions of many of the world’s cultures. It referred to the unprotected traditional knowledge and genetic material flowing out of their countries of origin, while protected works from developed countries flowed in, and to a regime that fenced off intellectual property rights at the expense of the intellectual and cultural commons. It called for specific measures to be taken in relation to folkloric works, works of

52 See Appendix V

125 cultural heritage and new works related to digital technology, such as electronic databases and computer programs. Embodying many of the social values of digital culture, it concluded with a call for a re-imagining of the international regime of intellectual property and for the democratisation of the fora in which international intellectual property was debated.

The body of copyleft literature was expanded in 2001 when Boyle and several of his colleagues on the intellectual property faculty at Duke University School of Law organised a conference specifically on the ‘public domain’. The conference brought together many of the foremost scholars, theorists and copyleft activists, such as Negativland, who together and for the first time focused on the public domain and its central, but largely unexplored role, in the traditions of free speech, innovation and culture.

Boyle says in his Foreword to the published papers from the conference that ‘the results were striking’ (2003[1]:2). In addressing issues such as the expansion of intellectual property and the privatisation of the public domain, the implications for its monopolisation or common pool management, and the differences between the public domain and the commons, the participants added to the body of knowledge about its past, present and possible future in a digital environment. The Conference was webcast and archived and is still available online.53 Boyle points out that as the Conference papers were being published, the Supreme Court in the US handed down its decision in the Eldred v Ashcroft case in which a challenge was made to the constitutionality of the 1998 further extension of the ‘limited’ copyright term under the CTEA.54 The decision determined that it was constitutional for Congress to extend the period of copyright for an additional 20 years. Boyle notes that while the decision constituted ‘the greatest legal restriction of speech in the history of the Republic’, it also attracted remarkable media attention, much of it supportive of copyleft principles and the importance of the public domain (2003[1]:32). The New York Times, for example, declared in an editorial that the decision may have signaled the end of the public domain and the birth of copyright perpetuity (32). Boyle also noted that the thoughtful and erudite public domain material amassed at the Conference was a

53 Available at 54 Eldred v. Ashcroft 537 U.S. 186 (2003) (See further at p xx)

126 timely contribution to what was obviously to become a more important public issue in the age of information and digital technology.

Later, James Boyle was instrumental in the development of another copyleft ‘manifesto’. It was called ‘The Adelphi Charter on creativity, innovation and intellectual property’ and was developed by an International Commission of prominent writers and thinkers from the arts, the law, economics and sciences. The Charter was issued in 2005 by the UK Royal Society for the Encouragement of Arts, Manufactures and Commerce (RSA), a society founded in 1754 ‘to remove the barriers to social progress’ (RSA website, 2008). Its publication signaled the spread of support for copyleft principles into the upper echelons of the legal, scientific and artistic establishments (RSA, 2005).

Like the Bellagio Declaration before it, the principles of the Adelphi Charter closely reflected the basic concerns of the copyleft in relation to knowledge and information: the importance of the public domain, of access to knowledge, of a balance between competition and monopoly and the different cultural and intellectual property interests of developing countries. It referred to the expansion in the law’s breadth, scope and term over the previous 30 years and the resulting intellectual property regime ‘which is radically out of line with modern technological, economic and social trends’. In its rules for government, it could have been a blueprint for Pirate Party principles. The Charter specifically referred to a presumption against expanding intellectual property rights without a consideration of people’s basic rights and economic well-being and without ‘transparent’ assessment of the effects on the public. It called on governments and the international community to adopt its principles.

The Charter reads:

Humanity’s capacity to generate new ideas and knowledge is its greatest asset. It is the source of art, science, innovation and economic development. Without it, individuals and societies stagnate.

This creative imagination requires access to the ideas, learning and culture of others, past and present. And, in the future, others will use what we have done. Human rights call on us to ensure that everyone can create, access, use and share information and knowledge, enabling individuals, communities and societies to achieve their full potential.

127 Creativity and investment should be recognised and rewarded. The purpose of intellectual property law (such as copyright and patents) should be, now as it was in the past, to ensure both the sharing of knowledge and the rewarding of innovation.

The expansion in the law’s breadth, scope and term over the last 30 years has resulted in an intellectual property regime which is radically out of line with modern technological, economic and social trends. This disconnect threatens the chain of creativity and innovation on which we and future generations depend.

We therefore call upon governments and the international community to adopt these principles:

1. Laws regulating intellectual property must serve as means of achieving creative, social and economic ends and must not be seen as ends in themselves.

2. These laws and regulations must serve, and never overturn, the basic human rights to health, education, employment and cultural life.

3. The public interest requires a balance between the public domain and private rights. It also requires a balance between the free competition which is essential for economic vitality and the monopoly rights granted by intellectual property laws.

4. Intellectual property protection must not be extended to abstract ideas, facts or data.

5. Patents must not be extended over mathematical models, scientific theories, computer code, methods for teaching, business processes, methods of medical diagnosis, therapy or surgery.

6. Copyright and patents must be limited in time and their terms must not extend beyond what is proportionate and necessary.

7. Government must facilitate a wide range of policies to stimulate access and innovation, including non-proprietary models such as open source software licensing and open access to scientific literature.

8. Intellectual property laws must take account of developing countries’ social and economic circumstances.

9. In making decisions about intellectual property law, governments should adhere to these rules:

128 • There must be an automatic presumption against creating new areas of intellectual property protecting, extending existing privileges or extending the duration of rights.

• The burden of proof in such cases must lie on the advocates of change.

• Change must be allowed only if a rigorous analysis clearly demonstrates that it will promote people’s basic rights and economic well-being.

• Throughout, there should be wide public consultation and a comprehensive, objective and transparent assessment of public detriments and benefits.

RSA, Adelphi, London, 13 October 2005

The Bellagio Declaration, then the Adelphi Charter, positioned the interaction between technological change and intellectual property as an issue of global concern. They provided a coherent framework for a challenge to digital copyright laws and contributed to serious public debate about the ways in which the law was limiting social and legal change. The Adelphi Charter’s third principle went to the heart of copyleft concerns. It focused on preserving the balance between the public domain and private rights and the balance between free competition and the monopoly rights granted by intellectual property laws.

*****

When the new digital proposals in the Clinton White Paper were made law in the US in 1998, they brought a greater public awareness of copyleft issues and numerous organisations were formed to counter the effects of the DMCA and the CTEA. Copyright scholars particularly were concerned about the impact of the CTEA/Mickey Mouse Act, which retrospectively increased the period of copyright protection for an additional twenty years. It protected Mickey Mouse but also prevented hundreds of other works from entering the public domain. To many it amounted to a form of perpetual copyright. If Congress could repeatedly extend the period of copyright, the provisions of the Constitution that referred to ‘limited times’, were seemingly no longer of any import.

One of the most active and high profile copyleft groups was the Electronic Frontier Foundation (EFF), a civil liberties group that was founded in 1990, before most people had registered the likely impact of the legal digital moment on consumers and

129 the general public. The EFF website states ‘From the beginning, EFF has championed the public interest in every critical battle affecting digital rights.’ The EFF continues to bring and defend law-suits such as those undertaken by the RIAA against file- sharers. It publishes papers on issues such as fair use, DRM, peer-to-peer file-sharing, free speech and anti-circumvention provisions under the DMCA. In a joint project with the Berkman Centre for Internet and Society at Harvard University, EFF works with a number of universities on the ‘Chilling Effects Clearing House’, an organisation which uses its website to collect and analyse legal complaints about online activity and to assist Internet users with legal issues and information.

Also founded to challenge the law suits brought by the RIAA was a group representing musicians. Called ‘Boycott-RIAA’, its mission statement refers to ‘the recording industry [that] continues its decades-long effort to lock up our culture and heritage by misrepresenting the facts to the public, to artists, the fans and to our government’ (Boycott-RIAA website, 2008). Its stated goal is to take down the RIAA monopoly and reform copyright laws to make them fairer to consumers and artists. It calls for an affirmation that consumers have the same rights for private, non- commercial use of digital song files as with analogue files, and for an end to the prerogative of the record labels to contractually demand ownership of copyrights from artists.

The international dimension of these issues for musicians is evidenced by the Canadian Music Creators Coalition (CMCC), an organisation that operates primarily through digital technologies and its website to promote digital music. In an article titled ‘Musicians to Industry Groups: Not in our Names’, they urged the Canadian government not to introduce American DMCA style changes to Canadian copyright law (2007). Concerned mainly about laws that would further empower the recording industry and endorse DRM systems CMCC says on its website:

..lobbyists for major labels are looking out for their shareholders, and seldom speak for Canadian artists. Legislative proposals that would facilitate lawsuits against our fans or increase the labels' control over the enjoyment of music are made not in our names, but on behalf of the labels' foreign parent companies. (‘A New Voice’. CMCC website, 2007[1])

Through activist groups, media coverage and international conferences, the influence of the copyleft began to spread. In the music industry, many organisations began

130 publicly to criticise the legal changes that they regarded as having upset the copyright balance. From those like ‘downhillbattle’ that deliberately defied the cease-and-desist orders on Grey Tuesday to those such as the Future of Music Coalition that have made considered submissions to copyright law and policy-makers, music creators have joined the copyleft to argue that the new digital laws give too much power to the recording industry and stifle musical creativity. Rosemary Coombe, calls them ‘intellectual property activists’, who like their Creative Commons print counterparts are arguing for an alternative, more democratic regulatory regime (2006:xi).

In Australia too, there was concern that the interests of users were being ignored in the framing of new digital copyright laws. Electronic Frontiers Australia Inc. (EFA) was established in 1994 to represent Internet users concerned with on-line freedoms and rights. EFA has been active in challenges to the law and, for example, joined with the Australian Consumers’ Association and the NSW Council for Civil Liberties, to lodge an amicus curiae (‘friend of the court’) application with the Full Federal Court in appeal proceedings regarding the Kazaa file-sharing software. In a media release, EFA Chair Matt Black said:

The proposed submissions to the Court make clear EFA’s view that a balanced approach to copyright law is needed to ensure that copyright does not unduly inhibit the rights of technology users and developers …. We must not allow copyright to impede other important rights, including freedom of expression and privacy. (EFA, 2006)

EFA has made submissions on a range of digital and civil liberties issues, including a written submission in October 2006 to the Senate Committee Inquiry into the Copyright Amendment Bill 2006. In March 2008, EFA made another submission to the Commonwealth Attorney-General’s Department (AGD), arguing that Australian consumers be given the right to make digital copies of their films, photographs, and computer and video games for their private use (EFA, 2008).

Even the more conservative Australian Library and Information Association (ALIA) joined the copyleft cause, warning in a submission to the Senate Select Committee on the AUSFTA, ‘the balance of rights and obligations will be inappropriate if the copyright term extension and the digital protection clauses of the AUSFTA are enacted in Australia's Copyright Act without the extension of user access (ALIA 2004).

131 Throughout this whole period, exposure of the issues around digital disruptions led to numerous conferences, discussion papers and new areas of research. Centres for justice, free speech and democracy were spawned, particularly in the law faculties of American Universities and later at universities in Australia. Reflecting a change in both the prestige and the importance of the digital agenda, independent think-tanks and government departments in the US, the UK and Australia turned serious attention to social and legal issues raised by the culture clash between the new network society and the old legal regime with which it seemed so at odds. Through the plethora of information, much of which seeped into the popular press, the copyleft position continued to gain currency and credibility. In 2000 for example, columnist for The Australian newspaper, Graeme Philipson, who had been using his column to follow the digital copyright agenda, wrote:

Technology and the concept of copyright are sworn enemies, and in the battles between them copyright will be the loser. This is not necessarily a bad thing. Copyright is not sacred. It will prove to be a temporary phase in human history. Successful publishers in the digital world will not be those that resist the changes, but those who embrace new technologies and new methodologies, and who look for business models outside of those defined by traditional constraints. … This is, I know, not yet a popular viewpoint. Proponents of the free dissemination of intellectual material are regarded as cranks in some quarters, even as criminals in others. But I see no alternative. When the technology exists to make everybody a publisher, or a TV station, or a record factory, all the laws in the world and all the enforcement of those laws will not prevent them from occurring. The simple fact is that it is ultimately impossible to legislate against technology. People will try, because people are by nature conservative and resistant to change, particularly when those changes involve a threat to their current income streams. So I look at these meetings of lawyers and publishers and consultants about how to maintain copyright in the digital age with some bemusement. They are yesterday's generals fighting yesterday's battles, and as always happens, they will lose (2000).

Philipson claimed in an email to the Australian Society of Authors in April 2000, that the level of email response to this article, most of it supportive, was the greatest he had ever received.

In the US, significant copyleft initiatives were associated with Lawrence Lessig, a constitutional lawyer who played a major role in exposing important economic and

132 cultural concerns about the changes in copyright law in response to digital technologies. He founded the Stanford Law School Center for Internet and Society, and wrote several books and many articles about digital culture and copyright law. With others, he also formed the Creative Commons (CC) licensing system, attempting both to expose problems associated with developments in copyright law – and to solve them.

CC provides free digital tools that let authors, scientists, artists, and educators mark their creative work with the freedoms they want it to carry. With the single stated goal of building a layer of reasonable, flexible copyright in the face of increasingly restrictive default rules, CC licences can be used within the framework of existing copyright law to change copyright terms from the restrictive ‘All Rights Reserved’ to ‘Some Rights Reserved’. Creators can select the level of protection that they want by choosing any one of the available licences and many individual creators, academics and organisations have used CC licences to make their work available for in the public domain. In 2007 CC claimed on its website to have to have licensed 60 million works. In 2009, it was claimed that an estimated that by 2008, 90 million works had been licensed (CC website, January 2009).

At an international level, Creative Commons International (CCi) works to ‘port’ the core CC licences around the world by translating and legally adapting them to particular jurisdictions. In April 2008, licences had been developed for 44 countries, 4 more were due during 2008, 5 were in development and 9 were marked for upcoming development, making a total of 62 countries. Creative Commons now has a ‘science commons’ that designs strategies and tools for faster, more efficient web-enabled scientific research and ‘ccLearn’, a division dedicated to supporting open learning and open educational resources.

Prior to establishing CC, Lessig had developed a copyleft reputation with the publication in 1999 of his book Code and Other Laws of Cyberspace in which he drew attention to the ways in which software and hardware encoded unseen regulation in cyberspace. He referred to the Internet’s expanding architecture of regulation, and to his fear that control of digital communications would be coded, by commerce and not consensus, with the backing of the government.

133 His legal representation of plaintiff Eric Eldred in the 2003 US case of Eldred v Ashcroft enhanced his reputation and provided an opportunity for a very public challenge to the CTEA and its twenty year, retroactive extension of the period of copyright protection.55 The case, now famous in copyleft circles, attracted the same sort of response that legal cases in the 18th century had attracted when the ‘question of literary property’ was addressed. Lessig says that the case became ‘a focus of the press and of the movement to free culture.’ The night before the appeal was heard by the US Supreme Court, hundreds of people stood in line for the chance to see the proceedings and scores spent the night on the steps of the court so that they would be assured of a seat (Lessig, 2004[2]).

The case was first brought in the District Court of Columbia in January 1999 to challenge the constitutionality of the CTEA. The case moved to the Court of Appeals, where Eldred’s challenge to the CTEA was rejected in a 2-1 decision. It was eventually heard in 2002 in the Supreme Court, with Lessig as lead counsel for Eldred.

The original complaint concerned Eric Eldred, an online publisher who had scanned 19th century public domain works and made them available for no fee on a website. He added links to pictures and explanatory text in order to make them more accessible for contemporary readers. In 1998 when Congress passed the CTEA, it meant that Eldred could not add any corporately owned works published since 1923 to his collection until the new 95 year period had expired, that is, until the beginning of 2019. Emphasising the drastic effect of the CTEA on copyright works, Lessig has pointed out that while no copyright work would move into the public space during this period, more than a million patents would do so (2004[2]: par.6).

According to Lessig, Eldred initially decided to fight the law through civil disobedience by proceeding with the publication of works that would be caught by the new law. But when Congress also passed the No Electronic Theft Act in 1998, copyright infringement became a criminal offence (2004[2]. par.8). By proceeding with publication of the works, Eldred would be committing a felony and if convicted, would have a criminal record.

55 Eldred v. Ashcroft, 537 U.S. 186 (2003)

134 Instead, Eldred took his case to court where Lessig, a constitutional lawyer, argued (among other things) that the retroactive extension of the copyright term was a violation of the ‘limited times’ provision of the Constitution’s copyright clause. For a variety of reasons, the Supreme Court decided against Eldred by a 7-2 majority. Lessig said the two dissenting judges understood the arguments on Eldred’s behalf but the majority of seven protected the precedent that Congress had previously, and could again, set time limits for copyright, providing they were not forever. The result was that Mickey Mouse and a number of other valuable copyright products were ‘saved’ from entering the public domain along with Eldred’s proposed, out of print works. Approval by the Supreme Court of the retroactive extension indicated that the Court could at any time in the future revisit the issue and extend the periods even further.

The previously mentioned copyleft activist, James Boyle, has since said of the Supreme Court decision in an article in the mainstream Financial Times:

The US goes from fourteen years to the author’s life plus seventy years. We extend protection retrospectively to dead authors, perhaps in the hope they will write from their tombs.

Since only about 4 per cent of copyrighted works more than 20 years old are commercially available, this locks up 96 per cent of 20th century culture to benefit 4 per cent. The harm to the public is huge, the benefit to authors, tiny. In any other field, the officials responsible would be fired. Not here.

It is as if we had signed an international stupidity pact, one that required us to ignore the evidence, to hand out new rights without asking for the simplest assessment of need. If the stakes were trivial, no one would care. But intellectual property (IP) is important. These are the ground rules of the information society. Mistakes hurt us. They have costs to free speech, competition, innovation, and science. (2005)

Also concerned about the social, economic and legal responses to digital technology was the already mentioned Yochai Benkler. In an article in which he criticised the regime of regulation associated with the DMCA and anticipated the merging of the producer and consumer in the digital environment he said:

An open, free, flat, peer-to-peer network best serves the ability of anyone – individual, small group, or large group – to come together to build our information environment. It

135 is through such open and equal participation that we will best secure both robust democratic discourse and individual expressive freedom. (2000:568).

Concluding another article written in 2001, Benkler referred to a ‘pitched battle’ over the spoils of the transformation to a digitally networked environment and the information economy. He forcefully asserted that stakeholders from the ‘old economy’ were using the law to control ‘the empires they’ve built or inherited’ and that they were, in the process, stifling the evolution of the distributed, peer-based models of information production and exchange (2001:90).

Numerous other writers, speakers and organisations emerged as supporters of the copyleft. Public Knowledge, a public interest group working to defend citizens’ rights within digital culture, lists on its website over 30 US organisations – from the American Antitrust Institute to the United States Conference of Catholic Bishops – with whom they work to ‘promote innovation and the rights of consumers, while working to stop any bad legislation from passing that would slow technology innovation, shrink the public domain, or prevent fair use’ (Public Knowledge website, 2008). Themselves involved in an open access project for peer-reviewed journal literature and in a project addressing the impact of new digital technologies and copyright policies on the ability of artists to create, Public Knowledge provides evidence of the breadth and depth of organisations that have emerged in support of digital culture and against the law when it is seen to unreasonably interfere with innovation and the rights of consumers in the digital environment.

In Australia, the Australian Digital Alliance (ADA) was formed in 1998. A coalition of schools, universities, consumer groups, major cultural institutions, IT companies, scientific and other research organisations, libraries and individuals, it has been active in copyleft politics. The ADA is united by the common theme that intellectual property laws must strike a balance between providing appropriate incentives for creativity against reasonable and equitable access to knowledge. Since its first submission to the Australian Government in the form of a response to the Copyright Amendment (Digital Agenda) Bill 1999 Exposure Draft, the ADA has presented over 25 submissions and position papers relating to changes to Australian copyright law (ADA website, 2008). The Alliance’s members in universities, libraries and consumer organisations are in positions to contribute to the debate about copyright at policy level and to influence the students and clients with whom they come in contact.

136 While academics and digital and civil liberties organisations were preparing arguments against the effects of the digital laws, a contribution to the copyleft cause was also being made by grass-roots activists. They were the file-sharers, downloaders and hackers who deliberately defied copyright law and exposed its paradoxes in a digital environment. Like the members of the Pirate Party, they were often simply branded as pirates. They are the ‘digital generation’ referred to in J D Lasica’s 2005 book Darknet and they feature in Matt Mason’s 2008 publication on digital culture, The Pirate’s Dilemma.

A digital strategist, entrepreneur and writer, J D Lasica explores the activism of these digital provocateurs. He talks of ‘the secretive world of the movie underground where bootleggers and pirates run circles around Hollywood and law enforcement’ (2005:1). Darknet uncovers a world where major entertainment companies and their political allies try to exert control over digital technologies while users do everything within the law – and sometimes outside it – to escape the restrictions.

Lasica does not find it surprising that members of the digital generation are engaged in expressing their creativity by producing their own culture, regardless of the law. Like Tom Pettitt, he looks to a time before print and mass media when creativity involved individual creators remixing and repurposing cultural works. He says digital technologies have again created that opportunity and it is hardly surprising that young people are taking advantage of it. From the dance club scene where music is sampled and rehashed, to the appropriation of material in fan clubs and fanzines and the mashups of pirated videos, he writes of the millions of young people who continue to borrow, transform and share digital works. He regards their behaviour as an affirmative, interactive, creative act, ‘akin to artistic licence’ (2005:21).

Some copyleft activist protests, like Grey Tuesday, have acquired almost legendary status and have probably encouraged other protests. Lasica quotes the often-repeated story of the students who used the Internet to publicly post leaked emails and memos about flaws in the Diebold Election Systems voting machines that are used in US elections.

After the leaked memos appeared, Diebold lawyers sent take-down letters to the students and their universities, threatening prosecution under the DMCA. Many of the memos were quickly removed. But some students took a stand and refused to be

137 intimidated for posting what they considered to be information in the public interest. They continued to make the memos available on the Internet and their stand became a cause celebre among students. This, combined with a wave of negative publicity about the company’s fund-raising activities on behalf of President George W Bush, was apparently enough exposure for Diebold. They eventually withdrew the legal threats and their objections to the memos, which had by then been widely circulated throughout digital networks.

Another often-told story is of Ed Felten and the ‘Hack SDMI’ controversy (Benkler, 2006; Gillespie, 2007). Edward Felten and his computer science students at Princeton University responded to a challenge by the Secure Digital Music Initiative (SDMI) for hackers to ‘crack’ their new watermarking copy protection. Orchestrated through the RIAA, the SDMI was to be a foolproof device that tracked music files and their users, regardless of the platform on which they were played. A reward of up to $10,000 was offered by a record industry consortium to the challenger who could crack the four protective watermarks while retaining the audio fidelity of the protected music files.

It was reported that the SDMI watermarks were cracked during all of the 447 attempted hacks, but the SDMI group claimed that just two of its several watermarks had been successfully broken (Gillespie, 2007:153). They acknowledged that others had also been broken but said that the music quality had been degraded. The hacker community disagreed and rallied online around Ed Felten who believed his students had successfully removed all the watermarks. Felten did not, however, submit for the prize but opted to present an academic paper about the hack at a conference.

Tarleton Gillespie reported that Felten received a cease-and-desist letter threatening a law suit against him, his colleagues, the conference organisers and his university, if his team presented their paper. The charge was that he had agreed to a confidentiality clause in the conditions of the competition and that his publication of the paper would thus be both a breach of contract AND a violation of the new anti-circumvention provisions under the DMCA. Felten withdrew from the conference presentation but the hackers used their networks to protest that free speech and research were being stymied by the record industry. The SDMI backed away from its legal threat. But the conference paper and information about the hack were posted online, receiving much more attention than an academic paper delivered at a closed conference. The SDMI

138 initiative was eventually abandoned in what Gillespie calls an ignominious death (150).

Another seminal protest revolved around the DeCSS. DeCSS was a computer program capable of descrambling content on DVD-Video discs that had been encrypted through the application of the Content-Scrambling System (CSS). Reports in the media about DeCSS focused on its potential as a piracy tool, even though like Napster and file-sharing technologies, it also had other legal uses.

Unsuccessful legal action was taken against a Norwegian student who was alleged to be one of three programmers who developed the descrambler and other legal action was taken in the US against sites hosting DeCSS. Meanwhile, digital protesters, especially coders and hackers, reacted against the application of laws that prevented the development of their work. They began a campaign of distributing the DeCSS descrambling algorithm through hidden Internet messages, on T-shirts and through an anonymous 5000-word haiku poem titled ‘How to decrypt a DVD: in haiku form’ (Carnegie Melon University website, 2008). Like Felten’s conference paper, the DeCSS gained much greater exposure through its ‘clever’ and subversive dissemination by digital activists than it would otherwise have had.

Numerous other protests from library groups, open source activists, gamers, hackers and programmers established the ability of copyleft activists to marshal online resources to undermine and mock moves made by the content industries to prevent new technologies from being used and shared. As previously mentioned, this even translated into the lyrics of hip hop songs and into the weblogs and networking sites associated with online industry journals and commentary.

A general pattern developed that made it clear that the more overtly the content industries interfered with technological developments and the ‘free’ spread of information, the more actively members of the digital generation used their technological skills and their networks to respond. The Grey Tuesday protest, the rallies in Sweden against the Pirate Bay Raid and the Pirate Party’s demonstration against the FRA law all demonstrated the copyleft’s ability to attract large numbers of committed activists to their cause.

The pattern of protest was confirmed in 2007 when several countries with large intellectual property industries began a new treaty-making process to create a new

139 global standard for intellectual property rights enforcement. The proposed treaty was called the Anti-Counterfeiting Trade Agreement (ACTA). Involved were the United States, the European Union, Japan, and Switzerland. Canada, Australia, Korea, Mexico and New Zealand were invited to participate.

As in the past, when industry representatives have met to discuss the development of new, international intellectual property laws, developing countries with different intellectual property interests and organisations representing consumer rights were not invited to participate. EFF reported that in February 2008, the Office of the United States Trade Representative (USTR) gave a deadline of just a month for public comments on the proposed treaty. Citizens were given only a one and a half page ‘Fact Sheet’ which failed to inform the public of the substance of the proposal. The EFF claimed that this made the comment process ‘a leap in the dark’ (EFF, 2008[3]). EFF urged Americans to contact their Senators to protest.

The situation was better in Australia where an ACTA fact sheet was published and where public consultations have been sought (DFAT, 2007). In Canada, legal academic Michael Geist said the secretive approach to the ACTA in that country had forced Canadian groups tracking the ACTA to rely on Australian documents to glean insight into the treaty process (2008). He also pointed out that the ‘insiders’ involved in the treaty planning in Canada were limited exclusively to 12 government departments and 14 industry lobby groups. These included the Canadian Recording Industry Association, the Canadian Motion Picture and Distributors Association, and the Entertainment Software Association of Canada.

By March 2008, no draft text had been published to provide the public with the substance of the proposed international treaty. IPJustice, an international civil liberties activist group, reported on its ACTA campaign website that a discussion paper titled ‘Discussion Paper on a Possible Anti-Counterfeiting Trade Agreement’ had been provided to select lobbyists in the intellectual property industry, but not to public interest organisations concerned with the subject matter of the proposed treaty (IPJustice website, 2008).

On Thursday 22 May 2008 details of the secret discussion paper were leaked on ‘wikileaks’, a website that published and commented on leaked government and corporate documents. The leaked discussion paper revealed that the proposed new

140 treaty would impose even harsher anti-piracy provisions than the WIPO and TRIPS agreements. It would allow border officials (custom officers) to search laptops, MP3 players, and mobile phones for copyright-infringing content. It would also impose new cooperation requirements upon ISPs, including disclosure of customer information. The agreement was also purported to cover the copying of information or ideas in a wide variety of contexts including a ‘Pirate Bay killer’ clause designed to criminalise the non-profit facilitation of unauthorised information exchange on the Internet. This clause would affect primary source journalism sites such as the wikileak site that made it available.56

Within days, major newspapers, industry magazines and online commentators across the world had picked up on the ‘leak’ and, partly owing to the viral effects of copyleft online activism, their responses were similar. In Australia, in reference to the ‘draconian’ measures in the draft treaty, Graeme Philipson said:

The forces of reaction are fighting back. …The first newspaper to break the story was Canada's The Ottawa Citizen, which in a story by Vito Pilieci on May 24 picked up on the Wikileaks posting. Since then the blogosphere has been rife with stories about the move. Most commentators are outraged that such a proposal is even being considered. (2008)

The ‘outrage’ that Philipson refers to, may still be confined to the obviously increasing numbers of the copyleft for whom the treaty proposals represent yet another example of the international manipulation of copyright rules to fight digital technology and culture. But the story is salient, not only because ‘the forces of reaction’ seem either to have stalled the ACTA negotiations or to have made them so controversial that they are taking place in even greater secrecy. It is also significant because of the ways in which the wikileaks leak demonstrates how digital culture can marshal its resources to produce formidable opposition to copyright law-makers.

Prior to the leak, a Federal District Court judge in San Francisco had ordered that the wikileaks website, run on modified mediawiki free software, be closed down (EFF, 2008[2]). The EFF and other civil liberties groups combined in a successful court challenge to the order on the grounds that it infringed the First Amendment free

56 The leaked information is available at the alternative address for the wikileaks site at . Retrieved 6 August 2008

141 speech rights of Internet users to access material of public concern (EFF, 2008[2]). Meanwhile, the leaked information was shared and distributed widely across the networks. PRQ, the Swedish ISP that hosted wikileaks, openly defied the law by setting up a mirror wikileaks site to share and distribute the leaked ACTA information. A small message on the mirrored wikileaks site provides the full Internet protocol (ip) address of the wikileaks site for those who were unable to access the supposedly ‘closed down’ URL address. Not surprisingly perhaps, PRQ is the same ISP that hosts the file-sharing BitTorrent service and the Swedish Pirate Bay site that was restored within days of being raided and closed down by the Swedish Police in 2006.

The wikileaks episode demonstrated that copyleft activism, at the grass-roots level, shows no signs of being brought under control by copyright laws. Nor does the critical commentary of copyleft scholars and lawyers seem to be diminishing. In fact, while the content industries continue to combine to plan further legal restrictions on digital culture, the copyleft continues to undermine the plans by using free software to leak documents, by taking legal action in the courts, disseminating commentary through digital networks, and simply by replacing one ‘unlawful’ website with another. The situation is summed up by commentator Dan Goodin who said of the wikileaks episode, ‘Every now and again, an event comes along and takes our breath away by reminding us just how far out of step the legal system can be with today's changing world’ (2008).

142

6 Copyright’s future

In response to the challenges to the law posed by digital culture, copyright and copyleft theorists posit a range of possibilities for the future of the global intellectual property regime and for copyright law in particular. Three possibilities are dealt with in this thesis. The first is that copyright maximalism will prevail over digital culture and that the combination of strengthened copyright laws, DRM systems and international agreements will eventually allow the copyright industries to assert control over digital content and quash digital culture. The second is that economic imperatives will bring about an accommodation of digital culture within the current copyright framework and that new businesses like Google.Inc and licensing systems like Creative Commons will successfully combine commerce and the commons without major changes to the law. The third possibility is that digital culture will not be contained within the old copyright regime and will eventually bring about changes to copyright law.

This Chapter looks firstly at the option that copyright maximalism will be sufficiently influential to bring digital technology and culture under legal control. Copyright maximalists, who argue that copyright is good and more copyright is better, understandably persist with their efforts to use the law to protect their power and their property interests. They continue to lobby for copyright laws to be expanded and strengthened, as they are currently doing with the proposed multilateral Anti- Counterfeiting Trade Agreement. They also encourage digital natives to conform to existing laws through education campaigns and, at the same time, threaten and enforce law suits when users operate outside the law. Underlying their approach is the assumption that law and policy-makers will endorse their efforts to control all access and uses that might undermine either their ownership of content or their significant contribution to the economy.

The history of copyright, detailed in Chapter 4, supports their view. With some anomalous exceptions such as the ‘Sony Betamax’ case in 1984, it is a history where

143 changes in both domestic and international law can be seen to support the business models of the content industries.57 There have been occasional, minor concessions to the users of intellectual products but the brief history of copyright law in this thesis indicates that copyright law has generally accommodated new technologies in the interests of owners rather than creators or users. Combined with the successful lobbying of the content industries and their strategic input to various international, bilateral and multilateral trade agreements, this has meant that the copyright maximalists have held sway.

In this context, it is likely that the copyright maximalists will continue with the strategies successfully used in the past. They will again lobby for an extension to the copyright term as they have done eleven times in the US since its first Copyright Act was passed. Australia will again follow, so that its regime remains in ‘harmony’ with US laws under the Free Trade Agreement. As in the past, bilateral and international agreements that ratchet up national copyright laws will be used to impose harsher restrictions on the sharing of digital works in both developed and undeveloped countries. The proposed Anti-Counterfeiting Trade Agreement, if it eventuates, will do the same.

However, as the underlying principle for effective laws in a network society, copyright maximalism demonstrates serious flaws. For each of its actions there seems to be a reaction that further embroils the maximalists in a legal labyrinth or provokes a response from the copyleft. Rasmus Fleischer, co-founder of the Swedish Piratbyrån, refers to the domino effect of maximalism as copyright owners continually call for paracopyright laws and new regulations each time a new technological development threatens their control (2008). He refers to the proposed Platform Equality and Remedies for Rights Holders in Music Act (PERFORM Act) introduced to the US Senate in 2007. The Act, if passed, would require all Internet radio stations to encrypt the transmission of file information. However, because such encryption would be easy to circumvent with special software, the Act includes a follow-up clause that further restricts the use of the special circumvention software.

57 For example, Sony Corporation of America v. Universal City Studios, Inc. 464 U.S. 417 (1984) where the Supreme Court eventually ruled that home video recording for the purpose of time-shifting is fair use and does not constitute copyright infringement. The Court also ruled that the manufacturers of home video recording devices, such as Betamax or other VCRs or VTRs, were not liable for contributory copyright infringement.

144 As well as being a prime example of an industry-based ‘technological fix’ that Pamela Samuelson identified in 2007 as cluttering and complicating copyright legislation, the PERFORM Act makes it clear that the intention of its framers is less about any actual infringement than about criminalising an entire technology because of its potential to damage the interests of one section of the industry. Like the cease-and-desist orders issued to suspected copyright infringers, legislation that aims to outlaw new technologies has a ‘chilling effect’ on innovation. It adds to the uncertainty about the use of new technologies whose legal status can be put under threat at the behest of special interest groups.

Another flaw in the maximalist agenda is the technological protection of copyright works. In spite of the regular hacking of DRM systems and copyright locks, many content owners still hold the view that DRM developments offer the best control options over digital materials and their unlawful use within digital culture. The theory is that DRM may not prevent clever hackers from breaking DRM locks, but it does discourage the majority of users from accessing protected files.

But technological protection systems, like other technological fixes, have served to fuel copyleft activism and expose its proponents to criticism from consumers and digital activists. For example, after record company Sony BMG included ‘rootkit’ spyware to enforce copy protection of its CDs, consumers were outraged that the rootkit relayed private information about their actions back to Sony and corrupted the computers on which it was installed. Tapscott and Williams recount the debacle that ensued after digital activist Cory Doctorow used the blog, boing boing, to inform its 750,000 daily readers of the disingenuous way Sony handled the situation. Tapscott and Williams say the reports ‘made Sony officials look like numskulls’ (2006:35).

Reacting to restrictive technological protection measures, copyleft activists have hacked them or, like Doctorow, mocked them. Copyleft theorists have criticised them because they inhibit innovation and diminish the public domain and generally impede the free flow of information (Heins, 2003; Lessig, 2004; Lasica, 2005; Gillespie, 2007).

Some of the criticism of DRM systems is apparently shared by the Chief Executive Officer of Apple Inc., Steve Jobs, who proposed abolishing DRM protection on copyright material on Apple’s ‘iTunes’ downloads. In 2007, he mused about three

145 possible music delivery business models. One was the current ‘top to bottom’ proprietary system for selling, playing and protecting music, another was for Apple to license its ‘FairPlay’ DRM technology to current and future competitors to achieve interoperability between different music players and music stores. The third was to abolish DRMs entirely, as the Pirate Party has suggested in its policies.

Jobs argued that the third alternative was clearly the best for consumers and that “Apple would embrace it in a heartbeat” if only the big four music companies would license their music to Apple without DRM protection. Jobs said that if the DRM requirements were removed, the music industry might see new companies willing to invest in new stores and players (2007).

There were reports on the Internet at the end of 2008 that such a change was imminent (Malley, 2008). On 6 January 2009, Apple announced that it had reached an agreement with the major record labels to sell music from the iTunes store, free of FairPlay restrictions. Eight million tracks became immediately available (for a price) with the remainder of the works to be DRM free by the end of March 2009 (Cohen, 2009).

While claiming that this decision by Apple meant the end of DRM for downloaded music and in CD format, EFF pointed out that Apple has retained DRM protection on a range of other products, including movies and TV programs that are available from the iTunes store (Esquerra, 2009). Some more cynical observers have suggested that Jobs’ 2007 comments about DRM and music were a response to the pressure that Apple had been placed under by the European courts that insisted that Apple unlock its DRM protection (Doctorow, 2007). Others in the online community suggested the comments were simply a good marketing strategy to digital customers (Hawk, 2007). Either way, the removal of DRM from millions of Apple iTunes tracks, combined with critical commentary from the copyleft and the continual hacking of digital locks, provide evidence that DRM has an uncertain future when it is used to prevent, rather than assist, the production and dissemination of knowledge and cultural works.

The maximalists also show a strong interest in ‘broadcast flags’, a DRM system involving a string of digital code that can restrict access and copying of digital television programs. Broadcast flags have found their way into proposed regulations and into practice. The US provider DIRECTV.com, for example, ‘flags’ pay-per-view

146 (PPV) movies recorded since 15 April 2008 and played on cable and satellite television. The flags can be switched off by the movie providers so that downloaded movies cannot stay on a digital video recorder or other related device for more than 24 hours after the movie begins (DIRECTV website, 2008).

This practice was apparently a result of negotiations between the major movie studios and the pay-per-view providers but similar legislative proposals have been made in various jurisdictions in the US and Europe. There is considerable support for the idea that turning broadcast flags on and off at the behest of copyright owners is a legitimate way to manage access to and payment for copyright works. But there is organised opposition to the flags from the copyleft.

In November 2003, at the request of several content companies and broadcasters, the US Federal Communications Commission (FCC) mandated that by 1 July 2005, every consumer electronic device capable of receiving digital TV signals must be able to recognise a broadcast flag in future digital broadcast programming. Adam Thierer, co- author of the 2002 book, Copyfights, saw the arrangement as an attempt to prevent the ‘Napsterization’ of video programming (2004). He regarded it as yet another example of the maximalist approach of solving a problem by seeking to ban a technology or concocting a grand industrial policy solution, which in this case was to introduce more and intrusive FCC rules into the regulation of computing and the Internet. Thierer queried the rushed approach, at the request of content companies and broadcasters, to control an entire technology when it was open to them simply to sue the relatively few offenders and avoid ‘all this regulatory nonsense’ (par. 4).

The invasive broadcast flag regulations were opposed by the EFF and by the public interest advocacy organisation, Public Knowledge. Both initiated campaigns against its inclusion in legislation. They also joined with the Consumers Union and the American Library Association to successfully argue in court against its adoption into US broadcast regulations. When put to the legal test, the US Court of Appeals found that in imposing the broadcast flag technology, the FCC had exceeded the scope of its delegated authority and the regulations were rejected.58

58 ALA v FCC Decision of US Court of Appeals, 6 May 2005, No 04-1037, 347 F.3d 291, 293 (D.C. Cir. 2003) at http://www.ala.org/ala/washoff/woissues/copyrightb/broadcastflag/BflagCADC0505.pdf, viewed 13 August 2008

147 EFF reports that the representatives of the movie industry have again approached Congress about implementing broadcast flag technology (2008[1], par.4). The EFF campaign against the technology is continuing and any future proposals for its implementation seem likely to be fraught with expensive legal challenges. Like DRM, the application of the broadcast flag technology is problematic in a digital environment and it does not seem to offer a long-term solution to unlawful user access to content.

Another maximalist strategy that exists in Canada, Europe and Japan is the imposition of copyright levies. Rather than deal with the difficulties of chasing online piracy and pirates, these countries have imposed levies on the sale of piracy-enabling media devices such as CDs, blank tapes and MP3 players. The levy money is collected and redistributed through collecting societies to the copyright holders to compensate them for loss of sales due to piracy.

Some copyright theorists such as William Fisher, Professor of Law at Harvard Law School and Director of the Berkman Center for Internet and Society, see this as a viable global solution to the crisis in the copyright industries (2004:9). He suggests that the tracking capacity of digital technology could be used to implement an administrative system that would proportionally compensate owners for the recorded use of registered works. Money would be collected from a tax on the devices and services used by consumers to access the works. He argues that such a system, even a voluntary one, could provide consumer convenience, reduced transaction costs, a boost to consumer creativity and payment to creators for their work. It would also, however, remove much of the control of the pricing and distribution of copyright works from the copyright owners.

But copyright levy systems, such as the European model, have also been challenged. A consortium of telecoms, electronics and digital industry associations, known as the Copyright Levies Reform Alliance (CLRA), has been formed in Europe to campaign actively for the reform of the levy system operating in different parts of Europe.

Critics of levy systems regard them as ‘blunt instruments’ in a digital environment (Rosenblatt, 2008). They argue that levies create a multiple payment system that penalises law-abiding consumers who pay both the levy and their usual subscription or other fee to legitimately download digital works. There are also credible arguments

148 that levy systems would do little to combat piracy and may even encourage it. If artists are being paid through a levy system, even those users who had previously supported them by paying for copyright works might decide there is little incentive to continue to do so when pirated works are also available.

Another maximalist strategy is to engage Internet Service Providers (ISPs) in attempted moves to combat digital piracy. In Australia, for example, a ‘notice and disconnection scheme’ has been suggested as part of an Internet Industry Association (IIA) voluntary Copyright Code of Practice. Also, the Australian government, like the governments in France and the UK, is reportedly considering adopting an Internet- based ‘three-strike policy’. Regardless of privacy concerns and apprehension about what the Pirate Party calls a ‘surveillance society’, the three-strike policy, would legally oblige ISPs to monitor Internet activity to identify subscribers who illegally share music, TV shows and movies. First- strike offenders would be sent a warning email from their ISP, second-strike offenders would have their accounts suspended and third-strike offenders would be cut off from the Internet. The website of Music Industry Piracy Investigations (MIPI), the anti-piracy organisation for the Australian music industry, indicates that MIPI has been lobbying government and the industry for this policy for a considerable time.

The IIA also seems to be included in the Anti-Counterfeiting Trade Agreement (ACTA) proposals. In return for allowing ISPs to retain the ‘safe harbours’ that protect them under current laws from being found liable for copyright infringement, the leaked ACTA discussion documents propose that ISPs should agree to block access to search engines like the Pirate Bay and to give out subscribers’ identities when there is evidence of file-sharing. MIPI, backed by the Audio Visual Software Distributors Association in Australia, issued a media release in July 2008, encouraging the Australian government to continue with ACTA negotiations (MIPI, 2008 par.1). If implemented, the proposal would oblige ISPs to become copyright police, playing a role not dissimilar to the role of the 16th century English Stationers.

But ISPs internationally have been reluctant to become more than ‘carriers’ in the digital environment and they have found numerous reasons for not adopting the proposed three-strike policy. In Australia, in a letter to the heads of MIPI, the Australian Record Industry Association (ARIA) and the Australian Federation Against Copyright Theft (AFACT), IIA Director Peter Coroneos expressed concerns

149 that the policy would involve them in copyright enforcement (2007: par.3). Apart from the fact that it will involve costs that will be passed to consumers, the IIA is wary of the privacy implications of the surveillance of their subscribers’ accounts. They also want to know how the courts will resolve the issue when only one member of a family or organisation breaches the law, but all suffer from their Internet access being suspended or taken down with the ‘third strike’.

In relation to their involvement in the ACTA proposals leaked via the Internet, the IIA has expressed specific concerns in a media release titled ‘ACTA Trade agreement with no drafts is scheduled for conclusion by December’. In it, Coroneos said:

We are very worried about leaked discussion documents relating to ACTA which would force ISPs to disclose customer information and even disconnect anyone alleged to be an infringer, based on untested and intrusive technological tracking -- without warrant or judicial oversight. … What happened to the presumption of innocence? ... We strongly urge the Australian Government to adopt a cautious approach before committing to any sweeping measures as part of ACTA. (2008)

It seems likely that in Australia, at least, there will not be an easy transition into the sorts of controls that the copyright maximalists are proposing for ISPs. Again, such strategies will involve challenges, both legal and ideological, to their attempts to include ISPs in their fight against infringers and the new technologies that facilitate access to digital works.

But perhaps the most significant impediment to the maximalist agenda is digital culture itself. Its sharing, collaborative, non-proprietorial dimension runs counter to the ownership and control culture of the copyright maximalists. Its non-market production of information and entertainment goods largely operates outside the traditional model on which the maximalist agenda is based, as do the many digital natives who continue to defy copyright law. Digital natives have created a modern version of ‘folk culture’, from amateur to professional works, which are freely shared among digital communities, regardless of legal constraints. It constitutes a type of commons that is an alternative public domain of non-commercial works and it weakens the control of the traditional copyright producers and the law.

As previously discussed, the traditional model assumes that production, distribution and consumption take place in a marketplace where sellers control the supply of

150 limited resources at a price that consumers are willing to pay. It is a model well-suited to the incumbent copyright industries. Their monopoly for a limited, albeit lengthy, time allows them to recoup investment by controlling the production of their goods and their distribution through physical outlets such as cinemas, record and book stores. As a model based on property rights, it is synchronous with a regime of regulation that supports the use of ‘trusted systems’ to lock works against unauthorised access.

However, the traditional economic model is cumbersome and not attuned to the unlimited supply of fast-moving digital bits that do not depend on the centralised manipulation of pricing structures to allocate goods and services. Further, it is not consistent with the behaviours of digital produsers who nimbly reroute around impediments to quality, price and availability by turning to, or creating, new technologies and products to meet their information and entertainment needs. Having seized a sizable portion of the means of production from the established copyright industries and legitimated the use of global networks to deliver their work at no cost and often with no charge, digital natives have created their own version of a public domain where works are freely shared, regardless of legal constraints. As the generation that Jennifer Wilson earlier described as thinking there is nothing that they can’t get via their digital networks, it seems unlikely that they will readily accept legal interventions that significantly curtail their freedom to access and share the digital commons.

As well, digital culture’s produsers are no longer passive consumers who can simply be manipulated on the basis of differential pricing or ‘versioned’ products tailored by producers. As Axel Bruns has demonstrated, produsers want to create information and entertainment goods – and often they are prepared to contribute their work for reasons other than financial reward. Their valuing of the commons is paralleled by the desire of many academics, software developers, public interest groups and librarians who are part of an ‘information commons’ movement (Kranich, 2004:1). Nancy Kranich, at the Free Expression Policy Project at the Brennan Centre for Justice at NYU School of Law, identifies the many individuals and organisations that have actively promoted an information commons on the basis that citizens need free and open access to information for democracy to flourish (2).

151 These values, attitudes and practices of digital culture undermine the closed system of the copyright maximalists. And they have become so pervasive that the pattern of digital natives ignoring, challenging and defying legal sanctions continues unabated, regardless of the law. The many reports and studies previously referred to, make it clear that strengthening the current laws does not directly result in changes to the values or behaviours of collaborative file-sharers.

It may even be that the exact opposite is the case and that new and stricter copyright laws exacerbate opposition from public interest groups, and subversive responses from digital activists. At the extremes of digital culture, extended periods of copyright protection can provide a greater incentive to unlawfully access works. More DRM simply means more opportunities for hackers to prove that new locks can be broken. For pirates, knowing that copyright levies on media devices will be used to compensate copyright owners can be used as a justification for greater pirating of copyright works. The result may well be that overall piracy increases rather than decreases and that further restrictions lead to a form of guerilla warfare between produsers and the content industries.

There is an argument too that enforcement of laws that are unpopular or not obeyed by large numbers of people, weakens general law enforcement. This is even more so when the laws are already discredited and disregarded, as copyright laws are within much of digital culture. Ironically, when the law is used to shut down new technologies, as it was with Napster, it can lead to the quick deployment of new technologies that present even greater problems for content owners – and which then require further legal action. Choi and Perez in an article on piracy, innovation and business models, point out that the demise of Napster led to the development of alternative technologies that allowed ‘for bigger files to be downloaded at faster speeds, more anonymously, and with a radically decentralized distribution approach’ (2007:173). In addition, law enforcement is expensive and time consuming in a market where resources could be better spent developing new products and platforms to keep pace with rapid technological change. This is already visible as digital corporations like Google base their success on using, rather than fighting, digital developments.

Ultimately, it seems that in spite of its 300-year history, copyright maximalism based on locking up the intellectual commons and inhibiting the spread of new digital

152 technologies is not likely to be a solution to the copyfights. For the increasing number of people who are ‘born digital’ and who believe almost everything is available through their networks, locking up digital materials is paradoxical. Interference with the application and spread of the new technologies is similarly contradictory. It is likely to aggravate the culture clash and to produce stronger opposition from the copyleft whose protests are increasingly acquiring mainstream respectability and currency.

Digital technology has reached the stage in the US, Australia and other industrialized countries where it has become the fabric into which much personal and professional human activity is now woven. It is at the stage that Manuel Castells identifies not just as a disruption to society but a true technological revolution that requires the institutions of society, business firms and the factors intervening in the production process, such as the law, to undergo substantial change (2000:29). In these terms, the pursuit of copyright maximalism and the fierce defence of the current legal regime, are not feasible strategies for the future.

*****

A second possibility raised in this thesis for the future of copyright is that viable business models will emerge from combining the legal protection of commercial copyright works with the ‘commons’ dimension of digital culture. This would involve accepting the values and practices of digital culture and developing hybrid ways of producing and delivering digital content to accommodate them. Ideally, such new business models in music, movies and print would offer users the flexibility and choice that digital technology allows and still provide some form of legal protection for commercially viable works.

According to Milton Mueller, this will depend largely on the copyright maximalists being convinced that it is in their economic interests to collaborate with digital culture, rather than try to suppress it. The implication is that the realities of economic behaviour, not the enforcement of copyright law, will be the impetus for change (Mueller et al, 2004, Ch 7:3).

There is already evidence of economic behaviours giving rise to new and successful ‘digital’ business models in digital production and distribution within the current legal framework. For example, the online auction site eBay, which claims over 100 million

153 users, generates fees from transactions in over 20 countries. Its net revenue at December 2007 was over 7 billion US dollars.59 Amazon.com that began as an online bookstore and which now sells music, computer software, video games, clothes, toys and even food through sites in several countries, issued a media release on its first quarter sales in 2008, listing net sales at USD$4.13 billion.60 Both enterprises have adopted digital technologies and networks to create businesses based on user access to information, rather than on its tight control. While they are dependent on the laws regulating the buyer/seller marketplace, both operate on digital platforms where users have free, any-place-any-time access and seemingly autonomous ‘one-click’ or click- through interaction to effect their online purchasing.

While not yet changing their business practices, there is evidence that some copyright incumbents are changing their attitudes towards digital culture. In 2006, Anne Sweeney, President of Disney-ABC Television, acknowledged that the piracy dimension of digital culture operated as a ‘business model’ that competed with Disney through high quality, price and availability (qtd. in Daly, 2007). Also, in May 2008, Microsoft Chief Counsel for Intellectual Property Strategy, Tom Rubin, urged his colleagues in the media and software industries to work with the web’s grass-roots creators to help build a consumer-friendly environment where everyone can flourish. Using the sort of language usually associated with copyleft advocates, he referred to ‘cultural stewardship’ and to ‘the public we serve’. He admonished his colleagues for their short-term self-interest and called on them to be flexible in employing their intellectual property rights, to ensure that fair use is robust and to embrace projects like Creative Commons. ‘As stewards’, he said, ‘we need to ensure that copyright in the digital age is an engine of creativity and not an inhibitor’ (2008).

Sweeney’s mention of piracy and business models in the same sentence and Rubin’s statesmanlike approach are far removed from the ‘piracy is theft’ rhetoric of Jack Valenti, a decade earlier. This might be attributable to the cogency of copyleft arguments but it is more likely that technological change and the values of digital culture are spreading throughout media and technology companies. As outlined by Schumpeter, after the stages of invention and innovation, the third stage of ‘creative

59 ‘Unaudited Summary of Consolidated Net Revenues by Type’, at http://investor.ebay.com/financial_history.cfm. Retrieved 23 May 2008 60 Amazon.com News Release, Seattle, 23 April 2008 at http://phx.corporate- ir.net/phoenix.zhtml?c=176060&p=irol-newsArticle&ID=1134078&highlight=. Retrieved 6 May 2008.

154 destruction’ involves the diffusion of new goods and services into the economy to form new business models as the older ones disappear (1976).

In spite of some evidence that attitudes may be changing, and dire warnings about their failure to adapt to new technologies in a positive way, the overall approach of the content industries has been to resist change and to continue with their traditional policies of content control and law enforcement. In the music industry where piracy and ‘free’ use first gained currency, a recent UK research study undertaken by digital music agency Music Ally with digital music researchers The Leading Question identified a significant sales decline in music. They warned the music industry that it must change its business model to stand any chance of reversing the downturn. In the study titled ‘“Digital Dabblers” Will Not Save Music Business’, the researchers revealed that the percentage of UK music fans regularly paying for downloads is shrinking, while the percentage of those regularly file-sharing has not decreased (2008).

The study’s research into attitudes and behaviour among 800 UK respondents found that many music fans are still dissatisfied with the current legal, paid for digital music experience. Pointing out that the culture of the net is free, the researchers emphasised that free does not mean no money. They exhorted the recording industry to find business models that embrace ‘feeling free’ so that user experience conforms to user culture. They specifically mentioned ways of retaining the ‘free’ feeling while still making money from other sources such as advertising support services, brands paying for an association with the artist, and newspapers paying for giveaway CDs.

The same message about ‘feeling free’ has been given in research reports to the publishing and film industries. Digital technology and digital culture have created a new marketplace where ‘free’ is the norm and where businesses must find ways of adapting. To be intransigent in the face of overwhelming evidence that sales are falling is, in Schumpeter’s terms, an invitation to the destruction of old business models.

Ironically, one of the new ‘feel free’ models is piracy. The Napster and BitTorrent file-sharing services, for example, have been immensely popular because, they offer digital users the quality and immediate availability that users expect. And they offer the ultimate in consumer pricing: they are free. For digital natives they provide the

155 sort of interaction and greater choice that digital technology allows but that many existing business models deny them. Their utility is more important than their legality.

In what they call an ‘explorative paper’, David Choi and Arturo Perez look at online piracy, and call for a radical rethink of its significance (2007). They define online piracy as ‘the unauthorized use or reproduction of copyrighted or patented (electronic) material’ (168). Like Abbate and others, they note that what is called piracy was in fact the sharing protocol by which scientists and technologists interacted in the early days of the Internet. As discussed earlier, it was the accepted convention of early digital natives and had an ethics and a legitimacy that made people like Richard Stallman view the proprietary strategies of companies like Microsoft as unethical. As far as he and many other computer software developers were concerned, it was ‘owners’ like Microsoft who were immoral because they withheld software’s potential benefit from the rest of the public (2002:45).

Using Napster, BitTorrent, blogging and online games as examples, Choi and Perez contend that pirate technologies:

• pioneer the use of new technologies;

• provide the business world with invaluable market insight;

• contribute to new market creation; and

• spur the development of legitimate new business models.

They claim that Napster’s file-sharing was a groundbreaking technology that created a new market of music listeners. Many of them were college students, who found that as well as being free, Napster offered ease of access, speedy distribution and choice of individual tracks rather than whole CDs that were expensive and were often padded with ‘fillers’ that did not interest them. In short, the college students offered a captive market around which music producers and marketers could build legitimate new business models (171).

Similarly, the BitTorrent file-sharing protocol and technology, by using a multitude of connected users, suddenly made big movie and video files readily available in a short period of time. The technology made it feasible for the movie industry to consider new ways of distributing their movies but they insisted on retaining the price and

156 access controls associated with their non-digital products. The result was that many digital natives by-passed these controls and migrated to the ‘darknet’ in their own underground networks of BitTorrent pirated movies, television shows and videos. Australian ABC News reported in February 2005 that a research study undertaken by UK research consultancy, Envisional, found that Australia was the world's second biggest market for downloading pirated television, driven by tech-savvy fans who are unwilling to wait for popular US television shows. In front of it was the UK, with the US in third place (ABC, 2005).

The reluctance of many in the content industries to adopt the new technologies lost them both revenue and customers and Choi and Perez make a point of identifying other more entrepreneurial companies that piggy-backed on ‘piracy technologies’ to form successful new businesses (175). They specifically mention video-on-demand (VOD) companies and a wide range of innovative technology providers that used BitTorrent technology or their own file-sharing software to broadcast their offerings. They also identify a new generation of research and professional service companies, such as the small start-up company, CacheLogic, that provides innovative content- delivery technology. They point out that even some ‘industry incumbents’ have accepted piracy technologies and online communities as part of their corporate strategy. The British Broadcasting Corporation (BBC), for example, used its integrated Media Player (iMP) and P2P technologies such as BitTorrent in 2005 to allow users to download TV and radio shows to their PC or laptop for seven days after the transmission date and to distribute feature shows from the BBC’s television and radio services (176).

In other words, online piracy can be regarded as playing a major role in the invention and the innovation stages of economic growth that Schumpeter claims ‘keep the capitalist engine in motion’ (82). By corollary, laws and legal action that are used to close down new technologies and distribution platforms can be seen as inhibitors to cultural and technological innovation in the ways Carlotta Perez identified. This is a major argument of the copyleft who see tighter copyright controls and longer periods of protection as strategies to protect existing media and software industries at the expense of new products and a shared public domain of creative works. Clearly, many of the digital generation support the argument and continue to by-pass business models that do not offer them at last some of the benefits of the new technologies.

157 Just as clearly, the movie and record industries demonstrate a reluctance to adapt to the new technologies or to take advantage of new market information

In their study, Choi and Perez also look at blogging, where much of the uploaded and downloaded information is borrowed or pirated from other sources. They discuss the ways its immediacy and alternative perspectives have broadened the reporting of news and made it more immediate and often more popular among digital users than conventional news and commentary. They look too at the gaming industry where entrepreneurial developers welcomed the modifications made to their games by pirate ‘modders’. Instead of taking legal action against the modders, they used the modified versions and invested their money in bringing new games to an eager market.

Choi and Perez conclude that legal battles undertaken by the media and software industries will ultimately have little effect on unlawful file-sharing. Instead, they argue that online piracy should be recognised as a source of innovation that has been lacking in the traditional media sector. ‘For entrepreneurially-minded companies or individuals, the changes brought by online piracy can present unique business opportunities when they are promptly and correctly identified’ (177). Like Mueller, Choi and Perez imply that if the media and software industries are to survive, it will not be by pursuing legal battles over copyright. It will be by recognising the potential of pirate technologies and by finding profitable, albeit hybrid or indirect, ways of building businesses around digital culture’s sophisticated communities.

From a slightly different perspective but with a similar message, Matt Mason, argues in The Pirate’s Dilemma that piracy is part of a tradition of youth counterculture that is being transformed into global industries and movements (2008). Using ‘punk’ to describe countercultural movements that have subverted traditional media models, he refers to the digital pirate do-it-yourself phenomenon as ‘Punk capitalism’ and claims it is the new set of market conditions governing society. He pays passing tribute to Schumpeter, saying that in terms of Schumpeter’s gales of creative destruction of economic development, ‘Punk was a category five hurricane.’ (14)

Identifying the innovation and creativity that has come from youth remix culture, Mason asserts that pirates who rip, mix and burn existing works are transforming the past into reusable public property. He says the remix started with music, became a mass movement and is now an industry standard. He refers to the fashion industry,

158 where remixing in the form of copying, sampling and modifying of haute coiture designs is not only the norm, but is essential to the fast pace of the fashion cycle. Mason quotes from the well-known study that identifies the ‘paradox of piracy’ in the fashion industry (Kal Raustiala and Christopher Sprigman, 2006). There, piracy plays a role in the induced obsolescence that drives the industry forward through rapid turnover. Appropriation of designs speeds diffusion and copying promotes innovation. It is an example of a business model that uses the sort of ‘sharing’ and quick diffusion of information that characterises digital culture and combines it with the commercial benefits of fast sales and turnover.

In The Pirate’s Dilemma, Mason canvasses examples from graffiti to games, from hip-hop music to open source software to show that remix piracy is a viable business model. The only thing left to remix, he says, is our outdated copyright laws (102).

Digital enterprises that combine commerce and the commons have their own ‘economics’, somewhere between copyright and copyleft. They often have some ‘free’ and interactive features that make them attractive to digital natives but many are also successful and legitimate. The popularity and usage of the free, open content Wikipedia, initially funded by its founder Jimmy Wales, but now run through a charitable foundation, is a case in point. An investigation by the international science journal Nature found that its accuracy for science entries was comparable to Britannica Online, which has an annual subscription fee in Australia of $69.96 (Giles, 2005). Wikipedia has 20 times the number of entries61 and, based on independent page-view statistics gathered by web information company Alexa, Wikipedia received roughly 450 times more traffic than Britannica in the first three months of 2007. Written collaboratively by volunteers around the world, most of its articles are open for anyone to edit. In May 2008, Wikipedia was ranked by Alexa as the 9th most popular site in Australia, 8th in the UK and 7th in the US (Alexa website, 2008).

Google inc, by far the most-used search engine on the Internet, can also be seen as a new model – although it also has some legacy from the past. It is a new model in that it is free to users but it retains some of the old media model by deriving most of its income (US$10.492 billion in 2006) from paid advertising. But advertising is also transformed at Google where innovative software that matches search items with

61 In May 2008, Britannica.com website claimed over 120,000 articles and the wikipedia.org website claimed almost 2.5 million articles in English.

159 relevant advertising, via keywords, takes much of the cost out of the traditional and expensive advertising model. Google has continued to add to its quality and availability by buying up other new technologies such as the blogger weblog platform, YouTube and the earth viewer software that became its ‘googleearth’ facility.

Not surprisingly, some of its digital initiatives have been controversial with copyright owners. The Google print library/booksearch project, for example, which aimed to scan millions of books to make them searchable online, was objected to by authors and publishers as a violation of their copyrights. The US Authors Guild and the Association of American Publishers brought a legal action in 2005 against Google’s scanning of copyright works without permission or payment, claiming that it did not fall within a fair use defence.62 The lawsuit was settled in October 2008 with the agreement still to be approved by the US Courts. Under the terms of the settlement, Google will pay out over US$100 million of which $34.5 million will go towards the establishment and initial operations of the Book Rights Registry where authors and publishers can register their works and receive compensation from institutional subscriptions or book sales. Google will also pay a minimum of $45 million to pay rightsholders whose books and inserts were digitised prior to the deadline for rightsholders to opt out of the settlement.

In spite of legal action against their library project and privacy objections to the identifiable streetscapes and people included in other Google search sites, Google continues to lay claim to its ethical stance and to its informal motto, ‘Don’t be evil’. It is, however, currently at the centre of another legal challenge from global entertainment company Viacom whose brands include MTV Networks, BET Networks, Paramount Pictures and Paramount Home Entertainment. Viacom is suing Google’s YouTube for USD$1 billion, claiming that over 160,000 of YouTube’s video clips violate Viacom’s copyright – and that Google has not done enough to prevent the infringements.63 Google, in response, is relying on the DMCA ‘safe harbor’ provisions for ISPs that serve as platforms for user-posted content. Protected by the so-called ‘Notice and Take Down’ provision, such sites are insulated from copyright-

62 The Authors Guild v. Google, Inc., 2005 WL 2463899 (No. 05-CV8136) 63 Viacom International, Inc. et al v. YouTube, Inc. et al. Case Number:1:2007cv02103 (Filed:March 13, 2007 New York Southern District Court)

160 infringement suits as long as they remove materials when notified of violations by content owners.

Not surprisingly, there are numerous YouTube videos protesting Viacom’s action and calling for an anti-Viacom campaign. There are also strong statements from Viacom defending its legal rights. In its formal complaint Viacom stated:

YouTube's brazen disregard of the intellectual-property laws fundamentally threatens not just plaintiffs but the economic underpinnings of one of the most important sectors of the United States economy. (2007, cl.2)

This is one of the first cases in which two major and well-resourced ‘digital’ corporations have gone into a legal battle over digital rights. Each is relying on the provisions of the DMCA to protect its business strategies and the outcome of the case, which is continuing, will be important in the copyfights. If the courts decide for Google and YouTube, it may provide the impetus for the older content industries to move more quickly to adapt to hybrid models. If the courts decide in favour of Viacom, Google may be required to pay compensation. YouTube may even be closed, but as Paul Kedrosky claimed in The Wall Street Journal on 15 March 2007, ‘that won’t change what consumers want one whit. They are demanding unbundled media, sold everywhere and in myriad assortments. Period. And if Viacom won’t provide it then some new media entrepreneurs will.’ (2007, par. 9) His article was titled ‘Viacom v. YouTube: The real issue is a consumer rebellion, not intellectual property’ and its message was that regardless of the court decision about the law, digital culture would prevail.

Combinations of commerce and the commons have also emerged in the area of digital distribution. In his book, The Long Tail, Chris Anderson looked closely at the goods created at the intersection of the commercial and non-commercial worlds and found a place where ‘hits’ and the ‘80:20 rule’ are no longer predictors of business success (2006). The 80:20 rule is often connected to the ‘Pareto Principle’, named after Italian economist Vilfredo Pareto (1848-1923), who observed that 80% of income in Italy went to 20% of the population. It has been a common rule of thumb in businesses such as book publishing where many still contend that 80% of publishing profits come from 20% of the books published.

161 Anderson observed that this rule did not apply to digital distribution. There the ‘long tail’ of distribution is a place unfiltered by the economics of scarcity where neither geography nor space limit the availability of goods and where there are no middlemen and shelf space costs (53). He claims it is a market of multitudes where the mass market of traditional distribution has turned into an accessible mass of niches.

By analyzing businesses taking advantage of digital distribution, Anderson was able to show that digital technology could make the sales at the long tail as valuable as sales of ‘hits’. He demonstrates this most dramatically by relating a conversation with the manager of a digital jukebox that held 10,000 albums and which allowed patrons to select and pay for works through a broadband connection. The manager was able to show that 98% of the 10,000 albums sold at least one track per quarter. And because storing and distribution of the albums were at almost zero cost, any sales had value – and the sales at the long tail added up. Anderson says companies like Amazon understood this, ‘The onesies and twosies were still only selling in small numbers but there were so, so many of them that in aggregate they added up to big business.’ (Anderson, 2006:9)

This new ‘98% rule’ was found by Anderson to apply to almost all digital markets. It is the basis of a business model made feasible by the sheer numbers of networked users who want and seek works far beyond the ‘hits’ selected and promoted by the copyright industries. As Anderson says, digital technology has turned users from ‘a mass market back into a niche nation, defined not by our geography but by our interests’ (40). He outlined the possibilities for business models that combine new distribution technologies with the interests of digital natives, demonstrating that they can survive the digital revolution, even when a copyright-enforceable pay-per-use model is used.

Don Tapscott and Anthony D Williams in their work entitled Wikinomics: how mass collaboration changes everything have also explored the viability of digital economic models (2006). Focusing on digital culture’s characteristic of mass collaboration through digital networks, they say that it involves millions of participants in initiatives that accelerate innovation and that it will displace traditional corporate structures as the economy’s primary engine of wealth creation (2).

162 Tapscott and Williams have compiled data to show that new models of collaboration and produsage can be successful not just with individual authors, musicians and YouTube video-makers, but with big media and technology companies. They talk of ‘deep changes in the structure and modus operandi of the corporation and our economy, based on new competitive principles such as openness, peering, sharing and acting globally’ (3). These are, of course, the previously identified characteristics of digital culture.

Identifying the economic rationale for each of these principles, Tapscott and Williams claim that the companies and businesses that fail to adopt them will be left behind, just as Schumpeter proposed. They argue that being open and transparent promotes creativity, lowers transaction costs and engenders trust both within the organisation and from customers who have become imbued with the values of digital culture. Peering, or collaboration on a horizontal rather than a corporate hierarchy, has produced the Wikipedia and the non-proprietorial Linux software operating system, now used by large corporations such as BMW, IBM, Motorola and Sony. Sharing, a salient characteristic of digital natives, allows open and mass collaboration that assists companies to create and bring products more quickly to market.

Tapscott and Williams relate the experience of Goldcorp Inc, a small Toronto gold mining firm that made available its proprietary geological data and invited participants to join the ‘Goldcorp challenge’ to find gold. They offered prize money of US $575,000 for the best methods and estimates. Responses came from geologists, students and mathematicians. Over 80% of the mining targets identified yielded substantial quantities of gold and Tapscott and Williams claim that this was instrumental in turning the company from a $100 million enterprise to one worth $9 billion (9).

Focusing more specifically on the networked economy, Yochai Benkler has explored the model of non-market peer production, revealing its economic potential (2006). He first establishes that in the realm of information, knowledge and culture, there has always been significant non-market production existing independently of the exclusive property rights afforded through copyright and patent law. He refers, for example, to the musicians who give away music for free in order to create a demand for seats at their live performances and to the lawyers and other professionals whose

163 clients are attracted to them, and pay them, because of the books and freely distributed articles they write about legal and other issues.

He then theorises about the effects on this non-market production when millions of individuals are connected via the digital networks. The networks, he says, increase the efficacy and importance of many more and diverse non-market producers engaged in commons based peer production. Like Tapscott and Williams, he uses the Wikipedia to demonstrate the viability of the production model (60).

Benkler goes on to argue that the model also has commercial potential in the USD$10 billion multiplayer online games (MMOG) industry. With games, peers can interact and produce their own stories and can often modify and create new games – but they pay a subscription fee to do so. Or they can enter Second Life, an Internet based virtual world where ‘players’ pay no fee for registering but where credit cards are required for purchases and where linden dollars (L$s) are exchangeable for real world dollars.

Benkler points out that these new models of peer production already present new sources of competition to corporations such as Disney and Microsoft (122). Disney’s Ann Sweeney made it clear in her reference to piracy as a business model that Disney is aware of the challenge posed by ‘free’ P2P models. Benkler points out that Microsoft too is aware of the economic impact of non-proprietary P2P initiatives. He refers to the leaked internal documents from Microsoft, called ‘The Halloween documents’, in which Microsoft acknowledged that open source methodology and software were a major potential threat to their proprietary business models. The documents apparently suggested ways in which Microsoft could disrupt their progress rather than adopt their methodology (123).

The research provided by Tapscott and Williams, Benkler, and Choi and Perez uncovers hundreds of large and small enterprises that combine commerce and the commons. They are businesses where the benefits of social production and user innovation have been integrated to form hybrid models that are not exclusively based on control of property rights associated with copyright law. Many have the ‘feeling of free’.

In Australia, a small digital company, Momento, attracts produsers by providing them with its free software (‘the enabler’) to create their own digital photo albums. Co-

164 founder Libby Jeffery says that in 2004 when the company was started, the photographic community was accustomed to paying for prints, but not software. There was a growing expectation of ‘free’ software and Momento knew that selling software could lock them out of some markets. Besides, the free online preview of the software’s capability is a ‘great marketing tool’ (Jeffery, 2008).

Momento now has significant turnover from its value-added services, mainly the printing of the created albums but also from colour calibration, design, scanning and photo retouching. Started in 2005, the company has dealt with over 29,000 registered users who ‘freely’ play with and create their own albums. Jeffery reports that 60% have also availed themselves of the paid-for services. Jeffery added that in 2007, Momento was No. 9 in the ‘Fastest of the Fast’ list from the Australian Business Review Weekly (BRW) and was ranked at No. 88 for revenue. In 2008, just four years after starting, it had achieved a turnover of over 2 million dollars (121.4% revenue growth) and was ranked for revenue by BRW at No. 60 (Jeffery, 2008).

A slightly different version of the combination of commerce and the commons is provided by Skype, a software program that uses computer networks to enable peers to speak to each other over the Internet at no cost. ‘The result is a self-sustaining system that requires no central capital investment – just the willingness of its users to share’ (Tapscott and Williams, 27). Produced as a ‘free’ service with options to pay for premium services such as calls to land lines, Skype was purchased from its founders by eBay in 2005 for USD$2.6 billion. It moved from the commons into the commercial space but retained its free option for users, presumably on the assumption that the business model will be sustainable. MySpace and YouTube followed similar trajectories. Both of these sites which allow produsers to collaborate, network and publish their work (for no fee), were later purchased respectively by News Limited in 2005 for an alleged US$580 million and by Google in 2006 for an alleged US$1.65 billion in Google stock. The ‘free’ access for users remains while the new owners benefit from the millions of ‘eyeballs’ for the paid advertising on the sites.

The economic potential of enterprises that accommodate digital culture is not confined to new forms of production and distribution. Global digital networks, or network effects, also allow the computing power of individual computers to be combined to form huge capacity in the areas of computation, storage and communications. A previously mentioned example of this is the Seti@home project

165 which uses the outsourced computation resources of millions of computers to form a supercomputer. During the ‘downtime’ of participants’ computers, problems relating to radio astronomy signals are downloaded for calculation. When completed they are automatically forwarded to the main Seti site. In this way, the Seti project harnesses more computer power (4.5 million users at no cost) and faster computations than the expensive supercomputers owned by large private firms. By using the resources of the commons, Seti, like BitTorrent, can provide a faster and more efficient service, which may or may not be monetized. Either way, such flexible, hybrid models present strong competition to the traditional media businesses that are based entirely on capital investment and proprietary rights protected by copyright law.

These new and more flexible business models involve variations of non-market production in a non-commercial ‘free’ environment and a range of commercial market-based strategies. In the free environment, such as Momento’s free software or MySpace’s free access, copyright law is barely relevant to user access. Commercially, Momento’s paid-for services rely on copyright protection as do MySpace advertisers. The combination is also reflected in the distribution model of CC licences. Based on copyright law but using free software (itself dependent on copyright law), the licences allow creators to determine what access users can have to their work. They can reserve some commercial rights or make some, or all, available for unfettered re-use in the public domain.

Models of interaction between commerce and the commons developed early in the music industry where file-sharing first emerged as a potential business model and free music became a reality. Musician Janis Ian, who had developed a successful career with a recording studio, decided in 2002 ‘to adopt the viewpoint of devil’s advocate’ and assert that free Internet downloads were good for the music industry and its artists (Ian 2002[1]). Her assertion reveals that the line between amateur and professional work and between free and paid-for works had already started to blur. The conflation has continued. So much so that the Canadian Music Creators’ Coalition (CMCC), representing the musicians that copyright law is supposed to protect, called in 2007 for a legislative approach to P2P technology that accepts current technological and music-business realities (CMCC, 2007[2]).

Ian received 2,200 responses in the eight weeks following the publication of the 2002 article in which she challenged the record industry and stated ‘Free works. I’ve found

166 that to be true myself; every time we make a few songs available on my website, sales of all the CDs go up.’ In a follow up article she critiqued the intransigent attitude of the record industries and pointed out in ‘a modest proposal’ that if they had been smart enough to make their back catalogues available even for a ‘nickel’ per download, Napster might have made them $500,000 a day (Ian, 2002[2]).

Apple iTunes has had enormous success with just such a model. It makes music, movies, music videos and TV shows available to its users for US99c per song in the US and for AUD$1.69 in Australia. It also offers DRM free music on its ‘iTunes Plus’ service which offers high quality audio for US$1.29 per song. It sells the iPod and iphone devices that use the free iTunes software to access and download a large range of works from the big four music labels (Universal, Sony BMG, Warner and EMI).

In ‘Thoughts on Music’, Apple CEO Steve Jobs claimed that by the end of 2006, Apple had sold 90 million iPods and 2 billion songs from the iTunes store (2007). The figures made it clear that a business model that charges for music can find a lucrative market among those who are prepared to pay for, rather than pirate, music that is readily and reliably available. Even so, the Record Industry Association of America quotes a 2007 report from the Institute of Policy Innovation (IPI) which concludes that global and US-based piracy of sound recordings costs the US economy $12.5 billion dollars annually (qtd. in Siweck, 2007).

There are pressures other than piracy on the record industry and they too are associated with a move from the traditional business model to commerce-and– commons models of production and distribution. In 2008, the popular English alternative rock band Radiohead, which had previously been contracted to EMI, made its latest album ‘In Rainbows’ available on the Internet at whatever price fans were willing to pay. Whether or not the fans paid – and how much – thousands of people downloaded the track (Gibson, 2008). When the album was released in paid-for CD format, it was already so well-known that its sales sent it straight to the top of the music charts.

By producing their own work and dealing directly with their fans, Radiohead drew attention to the economics of direct distribution as opposed to distribution through a record label, where even successful bands have to share the 30% of sales revenue they are typically paid by the record labels. Radiohead paid none of the ‘overhead’ and

167 other costs normally charged by the record companies. They were also free to capitalize on their popularity through live concerts, the sale of Radiohead merchandise and the subsequent sales of the previously ‘free’ album, which had expensive and artistic packaging included as the value-add component.

The event was sufficiently unusual to be covered by Time Magazine journalist Josh Tyrangiel who interviewed Radiohead members before the event. Band member Thom Yorke apparently told TIME, ‘I like the people at our record company, but the time is at hand when you have to ask why anyone needs one. And, yes, it probably would give us some perverse pleasure to say “F___ you'” to this decaying business model’ (qtd. in Tyrangiel, 2007). Tyrangiel also quoted an unnamed ‘music producer’ who commented that if one of the best bands in the world offered its music for whatever users wanted to pay, why would anyone pay USD$13 or US99 cents for music by someone less talented. Tyrangiel quotes the producer as saying, ‘Once you open that door and start giving music away legally, I’m not sure there is any going back.’

Radiohead’s pay-what-you-want is just one of many different models that combine commerce and the commons to allow music fans some type of free access to music. Several, like ‘Qtrax.com’, ‘We7.com’ and ‘Last.fm’, allow users to listen to (but not download or share) new music on the site for no charge by adding paid audio advertising to the product. Most involve some form of registration or sign-in, providing the sites with a database of music fans who have listened to and/or bought tracks. Others such as LimeWire now involve combinations of access, use and purchase that allow users to decide what options they want to pursue and pay for. In terms of Chris Anderson’s ‘98% rule’, if they can establish a niche market and attract enough music and enough users through the network effects of digital distribution, they can probably achieve some level of success.

In the film industry, which does not have a reputation for prescience in relation to its business models, there was little need to be visionary before the advent of the P2P sharing technologies. Prior to the development of video, CDs, and DVDs and the emergence globally of the Bollywood movie industry, the Hollywood industry had the production and distribution of commercial movie making tightly under its control. Movie watchers were generally assumed to be passive recipients of the ‘top-down’ decisions made by the industry moguls.

168 In the mid-1970s, however, Sony began manufacturing and distributing video-cassette recorders (VCRs), which enabled television viewers to copy movies from television and replay them at a later time. In 1976, two major film studios sued Sony in the ‘Sony Betamax’ case, for copyright infringement on the grounds that VCRs violated the studio’s right of reproduction. The claim was that by putting the machines into the hands of consumers, Sony was guilty of contributory copyright infringement.

The studios understood the threat the VCR posed to their business model. They knew that ‘time-shifting’ of their movies with a VCR allowed viewers to delete the advertisements during recording or to fast forward them during replay and that this was good reason for advertisers to reduce the fees that they paid the TV stations for their advertising slots. It was also good reason for the TV stations to reduce the fees they paid to the studios.

The court case over VCRs was finally decided in the Supreme Court, eight years after it was first brought in the US District Court for the Central District of California. During the eight years, the use of VCRs had become widespread, a development which may have contributed to the Court’s decision that the use of the VCR for the non-commercial, non-profit-making activity of time-shifting was a form of fair use.

The case was an important development in the ongoing history of copyright and its close connection with technological change. It was significant, not only because it was one of the few decided in favour of a new technology, albeit on a Supreme Court vote of five to four, but also because it set a precedent that a manufacturer is not necessarily liable for contributory copyright infringement, providing its device is also capable of substantial non-infringing uses. In the pre-Napster era, this was taken by some as an encouraging sign for the development and spread of new technologies.

The decision was, however, an initial set-back for the film industry, although its effects were later ameliorated by its being forced to adopt, rather than resist, VCR technology. After the decision, film studios were prompted to produce recordings of movies for sale and rent in video and then DVD formats. The revenue from this model is now larger than revenue from the release of movies in cinemas.

The VCR experience seems not to have diminished opposition from the movie industry to developments that they perceive as a threat to their businesses. Their

169 resistance to new technologies and their commitment to legal remedies to protect their existing income streams was again revealed when BitTorrent technology became popular after its first release in 2001 by its designer, Bram Cohen. The MPAA threatened legal action against BitTorrent users and moved swiftly to urge Sweden to close down the Pirate Bay site that was using BitTorrent to allow movies to be unlawfully downloaded. BitTorrent site Suprnova was forced to close down its original site in 2004 and in 2005, another BitTorrent site, LokiTorrent, was shut down in a move that coincided with MPAA law suits. An archived version of the LokiTorrent site shows the message that was placed on the site, presumably by the MPAA, after the service was closed down.

YOU CAN CLICK BUT YOU CAN’T HIDE

There are websites that provide legal downloads. This is not one of them.

This website has been permanently shut down by court order because it facilitates the illegal downloading of copyrighted motion pictures. The illegal downloading of motion pictures robs thousands of honest, hard-working people of their livelihood, and stifles creativity. Illegally downloading movies from sites such as these without proper authorization violates the law, is theft, and is not anonymous. Stealing movies leaves a trail. The only way not to get caught is to stop.64

It seems however, that hardened downloaders have not been deterred from ‘stealing’ movies. In a 2006 media release, the MPAA reported that the industry lost $6.1 million dollars in 2005 with $2.4 billion lost to bootlegging, $1.4 to illegal copying and $2.3 billion to Internet piracy. Their study found that the average film copyright thief is male, between the ages of 16-24 and lives in an urban area. College students in the US, Korea and Hungary contribute the most to each country’s individual loss. The 16-24 age range represents a disproportionately high percentage of pirates, especially downloaders, across the 22 directly researched countries. It is even higher in the US, where the same age range represents 71% of downloaders (MPAA, 2006).

Unlike the big studios, independent film-makers are making use of BitTorrent technologies and are benefiting from the exposure through free distribution on the Internet where they are being watched by millions of people. With limited funds for

64 Archived at http://web.archive.org/web/20050210215106/http://www.lokitorrent.com/. Retrieved 14 August 2008.

170 marketing, independent film-makers have adopted ‘viral marketing’, where information spreads over digital networks like a virus. It can provide greater exposure and a greater chance of a film being bought as a DVD or, if it is commercially released, of being viewed at the cinema (Smaran & Ernesto, 2007).

But the major studios still fear the erosion of their traditional markets and have continued to impose controls on distribution of their movies. There have been some moves to use BitTorrent technology to distribute selected movies, but the movies are not readily available and they do not ‘feel free’. The studios still release films later in countries outside the US, even though pirated versions are available in Australia almost immediately after (and sometimes before) official release in the US. They still ‘hold’ DVD versions of the films until box-office sales have been saturated rather than catering to consumer audiences by making them available as separate and simultaneous markets. They still apply region coding that prevents DVDs being shown outside the coded areas. As well, a user in Australia who goes to the MPAA website at to find legally downloadable movies, finds that Juno, a movie released in Australia during 2008, displays the notice ‘The requested video cannot be displayed in your region’. The day after an episode of the TV program Brothers and Sisters screened in Australia on the 25th May 2008, and a month after it was shown in the US on ABC TV, the site that the MPAA promotes as a vehicle for the streamed download of the episode, shows ‘Only viewers in the United States can watch these full-length episodes.’65 It seems that in trying new technologies to develop new business models that combine commerce and the commons, the emphasis from the studios is still firmly on commerce and control. Internet distribution that costs little – and which movie watchers seem willing to pay for – is not yet an acceptable option for the big movie studios.

The give-it-away-for-free model successfully used by some musicians also works in print. Cory Doctorow, a Canadian blogger and science fiction writer, has made his work available free on the Internet. In an article for Forbes.com, he relates the story of his first book Down and Out in the Magic Kingdom, which was published by Tor Books in January 2003. He also put the electronic text of the novel on the Internet under a CC License that encouraged his readers to copy it:

65 See http://dynamic.abc.go.com. Viewed 26 May 2008.

171 Within a day, there were 30,000 downloads from my site (and those downloaders were in turn free to make more copies). Three years and six printings later, more than 700,000 copies of the book have been downloaded from my site. The book’s been translated into more languages than I can keep track of, key concepts from it have been adopted for software projects and there are two competing fan audio adaptations online. (Doctorow, 2006: par.2)

As his work became better known in both print and digital media, Doctorow claims to have been offered much more money to write and to make public appearances. Turning conventional supply and demand economics on it head, he pointed out that on the Internet, demand is not linked to scarcity but to ubiquity. For digital creators who want exposure and to sell their work, it is obscurity, not piracy that is the problem. The better known you are, the better chance you have of using some of the new Internet business models to sell yourself and your work.

His theory is amply supported by authors who commented on the Google booksearch blog site that readers have used the site to find and purchase their works.66 His approach to ‘free’ publication and distribution has been adopted by others with John Degen, the head of the Professional Writers’ Association of Canada writing in the Toronto-based The Globe and Mail, that his new novel has been made available free online. A copyright supporter, Degen says it is his way of learning and adjusting to the digital marketplace. His assumption is that online sharing, like library sharing, will ‘market’ his book and that those who like it will buy it from a bookstore. Demonstrating the new interplay between the copyright free commons and copyright protected commerce, he remarks optimistically that when it comes to selling the film rights, ‘he’ will be doing the selling (2008).

Other new models that use technology to combine commerce and the commons have emerged in print, particularly in the area of scholarly research where open access initiatives have challenged the commercial publishing models of the big multinational publishing companies. In a public policy report from The Free Expression Project at the Brennan Centre for Justice at NYU School of Law, Nancy Kranich outlines the problems that came in the 1980s when many professional societies handed their journals to private firms as a way of containing membership fees and generating income.

66 Available at < http://booksearch.blogspot.com/>. Retrieved 12 October 2008.

172 The short-term financial gains, however, were offset by serious losses in terms of access to research results once journal prices outpaced library budgets. Prices of scholarly journals soared, and publishing conglomerates restricted access through expensive licenses that often require bundled or aggregated purchase of titles. (2004,

18)

Noting that some institutional subscriptions are now USD$20,000 a year, an amount that smaller institutions are unable to pay, Kranich connects the loss of access to knowledge and information with the incentive to use digital technologies to devise alternative ways of making scholarly works available online. This was particularly so in the academic and library communities that had been vocal objectors to the changes to copyright laws that affected their ability to make materials available to researchers and readers.

J Willinsky reiterates the same argument from the field of medicine. Referring to the paradox of an information society buoyed by technological change and low reproduction costs but with decreasing access to scientific journals because of their expense, Willinsky connected the increased cost of journals to the growing corporate concentration in scholarly publishing (2003). In 2003, three companies (Elsevier, Springer and Taylor and Francis) controlled 60% of the journals in the leading citation index, ISI Web of Science (2003). Willinsky says that this limited, subsidised economy went into a state of decline just as digital technologies enabled researchers to take publishing back into their own hands. He identifies’ nine flavours’ of viable open access publishing from the totally free, peer reviewed ‘First Monday’ to some that combine commerce and the commons, through to subscription and other forms of revenue.

Open access, hybrid models of digital production and distribution include academics paying for the publication of their work so that it can be circulated freely to readers and researchers. Other models involve securing grants from foundations and institutions so that academic institutions can invest in their own digital repositories. Digital initiatives have also led to the development of Open Journal Systems (open source software for the production and distribution of journals) and to the development of the Open Archives Initiative (the ‘OAI’) which develops and promotes interoperability standards to provide low-barrier, free access to digital materials. In May 2008, the Directory of Open Access Journals (DOAJ), which covers

173 scientific and scholarly journals, had 3,371 journals available. It had 1,155 journals searchable at article level and 185,037 free, full text, quality-controlled articles.

Createchange, a recent initiative from the US Association of Research Libraries (ARL) that represents 123 research libraries in Canada and the US, joined with the international Scholarly Publishing and Academic Resources Coalition (SPARC), to provide another example of a new business model emerging in association with digital culture and technologies within a legal framework. As part of what it calls a scholarly ‘revolution’ createchange refers in its website to a commitment to new ways of sharing scholarship in the form of new Internet-mediated business models to sustain a wider dissemination of scholarly research.67 The literature on the site refers to open access journals where costs are covered by publication fees, sponsorship and in-kind contributions. It also mentions a model where academics, whose work appears first in online journals for no fee, is subsequently ‘found’ by commercial entities who invest in the author and the work to produce commercial products.

Implicit in the createchange initiative is the assumption that a freer copyright regime is fundamental to the health of scholarship and society generally. There is open reference in its literature to the barriers to change posed by the ‘economies extrinsic to scholarship’ that have grown up around the laws governing the sale, and lease in the digital context, of journals and monographs and how these protect the publishing revenues and profits of the copyright industries. The createchange material refers to the publishers who rigorously defend their intellectual property in the digital environment through licensing restrictions. It also criticises the resistance to technological change and to traditional academic practice within the ‘prestige economy’ of academe where promotion and tenure committees do not recognize the value of new forms of digital scholarship.

The dissatisfaction with the current laws governing the production and distribution of scholarly works expressed by the librarians and academics involved in createchange is indicative of the more universal sense of ownership of and access to knowledge and information that was earlier in this thesis seen as a hallmark of digital culture. It is also indicative of ongoing discontent with the legal regime from within important educational institutions – and of orchestrated moves towards change.

67 See http://www.createchange.org/modes/openaccess.shtml. Viewed 8 January 2009

174 Similar dissatisfaction with the law emerged in the responses from students who participated in the planned research undertaken in early 2007 for this thesis at the Queensland University of Technology (QUT). Nine undergraduate students from the law and creative industries faculties were participating in a Creative Commons Clinic at the University. I briefly outlined the issues raised in this thesis, asked the students about their areas of study and interest and then asked the students to complete a questionnaire about copyright law.68

While the students displayed a varied range of knowledge and understanding about specific provisions of the law, all were quite familiar with the principles of copyright protection. All were also critical of the current laws and the behaviours of the ‘big corporations’ who seemingly benefit from them.

When asked about the role of copyright, seven of the nine thought that its primary role was to protect creators’ rights. One thought it was to encourage learning and the other, that its primary role was to provide a way to pay creators. Eight students thought that file-sharing should not be a criminal offence; one was undecided. When asked to rank who benefited most from current copyright laws, seven chose ‘publisher/producer’ as number one, two chose ‘distributor’ and none chose either ‘the creator’ or ‘the public’. In each case ‘the public’ was given the lowest ranking. All nine thought that copyright law was in need of reform.

In subsequent communication by email and via a weblog, the following comments were made:

(i) …copyright is a product of print (and other analogue forms of expression). Many of the problems that copyright faces in the digital age have come from rights-holders and legislatures trying to bend the “old” copyright rules to fit the “new” medium, without taking into account the “new” rules of the “new” medium itself. E.g. Protecting computer software as a literary work is one of the stupidest ideas in the history of copyright. Software is crying out for sui generis copyright protection.

You also have to deal with avaricious juristic-person copyright owners trying to manipulate the laws to suit their commercial ends – e.g. Arguing that a video game is a motion picture to stamp out parallel importing (succeeded); or arguing that a motion

68 Attached Appendix III

175 picture on a DVD is really a computer program to extort money from blockbuster et al (failed).

(ii) Copyright has primarily become a vehicle for corporate greed. The push to maintain the copyright monopolies of old in the new digital environment may well mean that all future generations of technology will be crippled or “pirate-proofed” with “trusted computing” type technology so that the hardware and software itself will not permit you to do anything that might infringe copyright.

(iii) I don’t think that these laws ‘manage’ knowledge. I think that’s left to the more powerful of authors / copyright owners.

(iv) I like Creative Commons, and I do think it is sensible. But I don’t think that it is the “most” sensible way to deal with copyright today. Ideally, legislative change is more sensible. Perhaps such changes could incorporate the ideas found in the Creative Commons.

(v) I think copyright has a place but I do not believe in its current form it is most effective. The term in which copyright subsists in a creation is too long. Making breaches of copyright a criminal offence are too draconian and do little to serve the citizenry at large. The ability for purchasers of computer games, music, videos etc. should be able to copy and format shift without restriction so long as it is for domestic and personal use.

(vi) …it is correct, in my opinion, to say that it [copyright] has become a legal bureaucracy because it only serves as a mechanism for large corporations to recover loss from copyright breaches. In a sense, it doesn’t protect the “little people” such as the author, publisher etc because in order for them to be distributed they need to sign away their rights to record labels etc (depending on the industry) who retain the benefits of copyright civil action.

(vii) I don’t think imposing a levy for registration or otherwise is a good idea. In practice all it will do is hinder people’s access to the copyright system and allow the big corporations to become more powerful. Lets face it, most artists are poor and imposing a levy system would only give the record labels, production companies etc more power over the artists / creators.

These responses from the Creative Commons Clinic students are indicative of the views of a future generation of decision-makers for whom copyright law is not

176 unassailable, either in practice or as a legal concept. They are also evidence that the values of a copyleft philosophy either inform, or are reflective of, the values of these nine students who intend to pursue professional careers, at least one as a lawyer and one as an academic.

For this small sample of students it was the law, not technology nor the practice of digital natives, that was proving to be problematic for innovation and creativity and for the spread of knowledge and culture. Their responses indicate that they will carry with them a fundamental lack of respect for copyright law and for its apparent failure, even within hybrid business models, to provide an adequate response to technological change.

In fact, the hybrid models in print, music and film are forms of adaptation that ultimately satisfy neither the copyright maximalists nor many of those who value digital culture and support the broad principles of the copyleft. Big media companies and their legal representatives are reluctant to embrace them whole-heartedly because they weaken and undermine their current businesses and income streams. For the copyleft, they are a compromise. They ‘feel free’ but are not free, either in ‘free speech or ‘free beer’ (Stallman, 2002:41).

The reality is that most of the ‘free’ material on the Internet is the non-market peer produced content for which the hosting sites (with a few exceptions such as the photography site flickr) pay nothing. In March 2008, for example, the social networking site bebo.com was purchased by AOL for £415 million (Beaumont and Martin, 2008). The founders of the site reportedly earned £290 million from the sale, but the contributors to the site, the new digital produsers whose works populate and popularize the site, earned nothing. Billy Bragg, songwriter and author, can see ethical issues associated with this situation where, as he puts it, ‘Both the corporations and the kids, it seems, want the use of our music without having to pay for it’ (2008).

Thus, while hybrid business models may go some way towards allowing digital innovation, neither they nor the copyright maximalist models address produsage and the remix of digital culture. Neither really addresses the fundamental issue of the contested ownership of knowledge and information and the trend towards the legal enclosure of the information commons. They do not ameliorate the effects of the lengthy term of copyright protection on the public domain nor the continued efforts of

177 the content industries to outlaw digital practice, as demonstrated in the proposed Anti- Counterfeiting Trade Agreement. They do not deal with the loss of fair use and the ‘right to read’. They bring digital produsers no closer to understanding the complicated laws that can so easily be used against them by copyright owners.

Beyond maximalism and the hybrid models there is a frontier where compromises within the current copyright regime have little cachet and where there is enormous pressure both explicit and implicit from digital natives for the law and business models to change. There, it seems axiomatic that the pervasiveness of new technologies and the values of digital culture, particularly as they filter through academe and the legal profession, will eventually bring about changes to the law and business practice. This pressure for change presages the possibility of a third alternative for copyright, one that fosters the positive values and innovative practices of digital culture. It would involve the establishment of a legal regime in which copyright law and ownership of intellectual property could not be used to restrict developments in new communication technologies in order to protect old business models. And it would facilitate rather than restrict reasonable access to knowledge and information.

178 7 A third way?

With neither copyright maximalism nor the ‘commerce-and-commons’ business models meeting the practical and ideological needs of digital culture, there is pressure for legal change from the vanguard of the copyleft. There is ample evidence – from the principles espoused by the Pirate Party and the less radical Adelphi Charter to their continued file-sharing and subversive activism – that it may be more efficacious to change the law than to try to suppress digital culture.

For economic and social reasons and to reinstate the credibility of the law, proponents of a copyleft approach have argued for more than a decade that the legal regime could and should be reconceptualised to provide a better way for managing the production and distribution of digital works. Their experience of sharing and collaboration, and their sense that knowledge and information should not be privately owned have coalesced into proposals for new ways to manage intellectual property. And as revenues and share values for the movie, music and publishing industries fall and digital culture becomes more normative, the copyleft are well positioned to have their proposals taken seriously.

Studies and reports from academics and copyleft activists show that many such proposals exist. William Fisher from Harvard Law School considered three alternative possibilities for changes to the system for managing intellectual property (2004). One, already mentioned, is a levy system, possibly a voluntary one. It would be based on registration of works and the allocation of a unique digital file name that would be used to track distribution and use of the named work. The file name would also provide the basis for reimbursement to artists through revenue collected from the levy or tax on digital entertainment services and devices. In spite of the general criticisms of such systems as blunt instruments, Fisher says it is ‘the best of the possible solutions to the crisis’ (9).

A second option is based on acknowledging that copyrights are full property rights that should be treated by the law as such. With this model, Fisher considers a strengthening of copyright laws to parallel those that apply to land, and suggests that

179 this could bring considerable benefits to copyright owners and consumers. In particular he mentions that strengthened copyright laws would lead to record and movie companies more quickly deploying subscription and ‘a-la-carte’ systems for distributing products over the Internet. Tighter controls would encourage them to collaborate with other private organisations to provide better ways of licensing their products and enhancing the availability of entertainment products (8).

But Fisher also suggests that in a digital environment the strategy would be flawed. It might result in increased concentration of ownership rights in the content industries and associated price increases in content, as well as a brake on the pace and range of innovation in computer equipment and software. It is unlikely to resolve the copyfights over piracy, privacy or ‘free’ content on the Internet.

Fisher’s third alternative is to treat the entertainment industry as a public utility and introduce laws similar to those that regulate industries such as telephone companies. Again he concludes that such a strategy is less than ideal as it would involve high transaction costs, impediments to consumer creativity and the distortions associated with tight government control of private enterprise (9).

Another proposal has been canvassed by Pamela Samuelson. She has drawn on the insights of many commentators on copyright law and policy to propose a model copyright law or a ‘copyright principles project’ (2007). A model law, while difficult to implement, could provide a platform for launching specific reform. As well, Samuelson says that a model law, or a principles document, could provide an alternative conception of a legal framework. Ultimately, she says, the law needs to be simpler. Especially it needs to have the clutter of industry and technology-specific ‘fixes’ removed (15). She argues that even some copyright professionals would welcome such change as a way of restoring a positive vision of copyright as ‘good law’.

Samuelson extracts core components of copyright law such as the kinds of intellectual creations that should be protected, eligibility criteria for specific people and works, exclusive rights and their duration, infringement standards and remedies against those who infringe. From this base, she puts forward a number of possible changes to address the ‘ownership’ of knowledge and information, the ‘nightmare’ of rights

180 clearances for digital producers and the problem of orphan works that are currently un-owned but unusable.

Samuelson suggests that the diminishing of the public domain, a fundamental concern of the copyleft, could be countered by reducing the terms of copyright protection or by requiring periodic renewal of copyright claims. Samuelson also raises the possibility of the reintroduction of formalities such as registration to deal with the produsage of non-market works and argues for a greater role for user rights. In terms of the infringement and damages provisions now encoded in the law, she suggests that there should be serious rethinking about statutory damages, which can be required even when the copyright owner suffers no actual damage from copyright infringement.

Samuelson’s preliminary thoughts cover the processes by which copyright laws are made and amended. She suggests that rather than relying on industry negotiation that produces laws that primarily reflect the interests of those doing the negotiating, a government office might be responsible for rule-making. She does not see the international treaty regime as an insurmountable object and even suggests ways of accommodating both the utilitarian approach of American (and Australian) copyright law with the more author-centred approach of the European countries.

Ultimately, Samuelson’s work makes it clear that there are ways of reforming the law to make it more balanced and thus, after 300 years of copyright law, of finding ways to resolve the copyfights. She argues that the legal decision was made in early legal cases that copyright is a creature of statute - and that statutes can be changed. The real difficulties come with transitioning the provisions into the existing framework. There, she says, the prospects are dim and the obstacles formidable. This is particularly because of the already demonstrated resistance of copyright industry representatives who, at least at times, benefit from the system’s dysfunctionalities (17).

In another possible model for legal reform, intellectual property lawyer Bennett Lincoff has proposed a change, specifically for the music industry, but one which he argues could also solve problems associated with all P2P file-sharing (2008). Like many other commentators, he paints a grim picture for the music industry, pointing out that record label revenue in the US has been declining year after year. In 2006, the ratio of illegal to legal downloads was 40:1, with 20 billion recordings downloaded

181 without authorisation. Estimates prepared in 2007 by the International Federation of the Phonographic Industry (IFPI), PricewaterhouseCoopers and Soundbuzz, projected that global sales of CDs would drop by 61 percent by 2009 (Osorio, 2007).

As a lawyer working in the industry for many years, Lincoff observes that the Internet and digital culture have so changed the dynamic of the music industry that a revenue model, based on the sale of hit recordings at thin margins, can no longer be sustained. ‘Neither law, nor technology, nor moral suasion will change this result’ (4). Lincoff thus proposes a complete reconceptualisation of the law around a single digital transmission right. His proposal is a complex but comprehensive plan for managing digital distribution. It would replace the current exclusive rights and in music, ownership of the right in each recording would be held jointly by the songwriter(s), music publisher(s), recording artist(s) and the record label. The system would be implemented through a combination of voluntary collective rights management, and licenses freely negotiated between individual rights holders and those legally liable for providing digital transmissions of recorded music.

The attraction of Lincoff’s scheme is that it limits liability to those who provide digital transmissions, retransmissions or further transmissions of recorded music. Users would not incur liability for streaming, downloading music, or making copies of recordings for personal use. This would immediately remove the battleground between file-sharers and content owners while ensuring that the owners, creators and distributors receive payment based on use of the works, rather than on artificial price structures based on industry agreements negotiated by corporate lawyers.

Similarly, software distributors, technology firms, consumer electronics makers, and telecommunications and ISPs, would have no liability. Lincoff argues that the system would meet consumer demand for full, unfettered and lawful access to music when, where and how consumers want. To aid its transition, Lincoff suggests imposing an interim levy on consumer electronics and technology products to help sustain the music industry. The levy would be adjusted in response to increases in licence fee collections under the digital transmission right and would be phased out within four years of its implementation. After that, the music industry would be expected to survive without subsidies (63).

182 The chances of Lincoff’s model being adopted are slim at this stage, but the digital transmission right reinforces the idea that there are viable alternatives to the current legal and business models. The more such alternatives are exposed, the less authority the industry has to insist that the current ownership system is the only way to manage intellectual property rights. In the face of a range of possible model laws that might address the clash of cultures, the industry’s intransigence increasingly raises questions about their immediate self-interest at the expense of their longer-term interests, and those of society as a whole.

Professor Brian Fitzgerald from QUT looks to 2010, 300 years after the Statute of Anne, and says it is an appropriate time to reconsider the fundamentals of copyright law and how it ‘serves the needs of life, liberty and the economy in the 21st century’ (2008).

Fitzgerald raises 11 points for 2010, including several alluded to by Samuelson. He also raises the issue of government, or publicly funded, copyright works and suggests they could be opened to allow broad access rights, at least for non-commercial dissemination and reuse. Both James Boyle and Rufus Pollock have contended that opening access to public sector information can maximise social and economic benefits. Boyle specifically mentions the European Commission’s (EU) Database Directive of March 1996, which required the creation of a broad new community- wide sui generis (of its own kind) intellectual property right to protect compilations of facts (2006). Research from the EU showed that subsequently, the production of databases fell to pre-Directive levels while the US database industry, which has no such intellectual property right, grew faster than the EU’s. Similarly Rufus Pollock looked at a multitude of studies relating to public sector information that demonstrated the commercial and social value of a public domain approach over a proprietary, cost-recovery one (2006).

Fitzgerald also considers new ways of looking at non-commercial production of digital works. He identifies the apparently non-commercial works on social networking sites, noting that they have delivered some very commercial benefits to the major corporations, like bebo.com, that host the sites. Like Billy Bragg (see p. 177), Fitzgerald thinks that there are ethical and economic issues associated with this use of works to make commercial profits; they need to be addressed in future arrangements for managing works and paying creators, where appropriate.

183 Closely involved in the project to ‘port’ or legally adapt CC licences to Australian law, Fitzgerald also looks to forms of licensing, including compulsory licensing, as possible solutions to managing new technology products. ‘Never again’, he says, ‘should we allow everyday people to be put in the position of facing criminal charges because industry has been unwilling to provide new business models.’ Obviously supportive of change, Fitzgerald questions the dominance of US-led copyright maximalism and quotes Varian and Shapiro who said that a copyright system should ‘maximise value not protection’ (1999:4). He concludes by saying that in a digital age, we should be moving to a legal framework that looks more closely at the relationships any individual has with information, knowledge, culture or creativity:

By focusing on the information or cultural resource and how we nurture and allocate it for social and economic good we open up the politics and economy of the rights to

access, reuse and communicate information, knowledge, culture or creativity. (2007:4)

Fitzgerald claims that the momentum for change will come both from digital culture and what he calls the ‘mega access’ corporations. In relation to the latter he mentions the legal action by Viacom against YouTube and Google as a possible first legal iteration of the political dynamic at play in the fundamental reshaping of copyright politics. Discussed in Chapter 6 in the context of hybrid business models, the Viacom case is referred to by Fitzgerald as an example of digital culture and business models moving into the mainstream where the access and user agendas are now being championed by ‘heavy hitting mainstream US based western corporations’. No longer confined to pirates or utopian ‘commonists’, opposition to copyright maximalism is being presented and funded by one of the world’s largest digital corporations.

In what may be significant for the Viacom case, and may prove to be a demonstration of a less hostile attitude of the courts to digital models of production and distribution, a recent decision in a Californian District Court found that a video-sharing site, which had been sued by a maker of adult films, was not guilty of copyright infringement.69 The VEOH video-sharing site was found not to be disqualified from the DMCA ‘safe harbor’ provisions, because it had been reasonably responsive to the ‘notice and take down’ requirements of the Act and had otherwise acted in good faith in dealing with copyright material (Singleton, 2008).

69 Io Croup, Inc. v. VEOH Networks, Inc., No. C06-03926 HRL

184 There are other proposals for changes to copyright law. Karl Fogel, an open source developer and writer, anticipates that copyright law will simply lose its authority as the ‘free stream’ of creative works grows and the proprietary stream diminishes (2005). Copyright, he thinks, could simply be abolished.

He suggests ways for creators to be paid that have nothing to do with copyright and mentions the ‘Fund and Release’ system, also called the ‘threshold pledge’ system. Using this approach, creators state how much money they want for their work (the threshold) and an intermediary (or entrepreneurial creator) collects pledges from interested parties until the threshold is reached. At this point, the pledgers make their payments, the work is produced and the creator and intermediary are paid. If the threshold is not met the work is not made available and if the creator doesn’t produce, the pledgers have their money returned. The model is essentially a form of subscription-based creativity, with the money paid upfront to cover production and the promise of a personal and guaranteed copy of the work.

Fogel argues that as the copyright industry’s pay-per-copy model becomes obsolete, simply because the fundamental physics of information have changed, the free stream will lose its stigma and the plethora of digital works created and distributed online by creators will again provide a vibrant public domain. Fogel maintains that this abandonment of copyright is most advanced in the software industry, mainly because programmers were the first to have Internet access and to understand that digital production and dissemination is the easiest way for creators to find an appreciative audience. In tune with Tom Pettitt’s ‘Gutenberg parenthesis’ theory, Fogel argues that copying is not theft or piracy. It is what creators did for millennia until the invention of the statutory copyright monopoly ‘... and we can do it again, if we don’t hobble ourselves with the antiquated remnants of a censorship system from the sixteenth century’ (Fogel, 2005:17).

In her proposal for legal reform, Jessica Litman considers simply replacing the long, complicated, counterintuitive and often arbitrary code of copyright law with a set of new rules that most people think are sensible and fair (2001). She refers to survey evidence that reveals that members of the general public seem to believe firmly in a ‘free-use zone’ (117). They attach significance to intellectual property but intuitively make a distinction between commercial work and work that is consumed for personal

185 purposes. Litman thinks it feasible to produce a law that reflects this. It should be short, simple and fair.

One suggestion she offers is to recast copyright as an exclusive right of commercial exploitation. Thus, making money from someone else’s work without permission would be an infringement but non-commercial use of the same work would be lawful. Litman focuses on the public’s interests in the ‘copyright bargain’ (174). Rather than fashioning the law around the rights and interests of the copyright industries, Litman sees that a law could be devised to make the rights of the public explicit. Thus a law that supported the right of the public to read, cite, gain access to, use and reuse ideas, facts and information in the public domain would be part of the copyright bargain. It would serve the dual purposes of reflecting the interests of digital produsers and making the law more credible and comprehensible.

Timothy B Lee, an adjunct scholar at the Cato Institute, also focuses on the two streams of commercial and non-commercial cultural production and suggests that copyright be treated as a limitation only on the commercial exploitation of creative works (2008). This would allow individuals to make any non-commercial use they wanted of copyright material without invoking copyright law, leaving the law primarily as a tool for commercial entities that are easier to regulate and better equipped to deal with its complexities.

Lee does not see that the decriminalising of file-sharing will destroy the content industries and deprive creators of a means of earning a living. Rather, it would restore the focus of the law on the protection of copyright works from commercial exploitation by rivals, not by those who copy the works for personal use. If their monopolies are protected from rivals, Lee says there are myriad ways for the content industries to exploit their works for a profit – and without suing their customers (2008, par.8).

Accepting that digital technology has completely altered the way digital works can be distributed, Fogel, Litman and Lee all identify a distinction between commercial copying and copying for private use. A new copyright law that clarified the distinction, on a common-sense basis, would go some way to solving the problem of the criminalisation of digital natives who share works among their peers. It at least addresses what Swedish and other research, referred to in Chapters 1 and 3, reveals as

186 widespread acceptance of file-sharing as a cultural phenomenon. For digital natives it is not an unreasonable response to their personal interactions with music, text and images being controlled by what they perceive as distant and wealthy corporations.

Other proposals that would go some way to loosening the tight controls associated with private ownership of copyright works include musicians insisting on fair use rights in their contracts with record labels. Negativland, the experimental music and sound collage band that has been at the forefront of music innovation and policy change, has suggested an expansion of fair use guidelines to constitute a general right to freely re-use copyright works in the creation of new works. Thus, a new work that transforms, rearranges or recomposes an old work into a new one, should be regarded by the law as a valid fair use (2003). Like Timothy B Lee, Negativland does not see this as a wholesale dismantling of the current system, but the legitimisation of a parallel system that already exists in reality. Negativland point out that in spite of the billions of unlawfully downloaded music tracks, neither the record nor the movie industry is facing its imminent demise and that each only needs to sell a fraction of the current bits moving around the networks to ‘become sinfully rich anyway’ (248).

Another suggestion for change to the fair use provisions of the law comes from Marjorie Heins in a Report for the Brennan Centre for Justice at NYU Law School (2003). In her study of fair use in the US, she discovered that more than 20% of the cease-and-desist letters in the Centre’s Chilling Effects database for 2004 (67 letters out of 320), were either weak claims or those which had a ‘strong’ or ‘reasonable’ fair use or First Amendment (free speech) defense. Another 27% – or 86 letters – had a ‘possible’ fair use or First Amendment defense. In other words, almost half of the legal actions instituted by content owners to suppress material were based on dubious and legally challengeable grounds.

Matthew Rimmer contends that the ‘rickety and cumbersome safe harbours regime set up the Digital Millennium Copyright Act 1998 (US) is struggling to cope with the sheer volume of take down notices provided by copyright owners’ (2007). Also referring to information from The Chilling Effects Clearinghouse, he suggests that copyright owners have abused the legal regime and that there is a need for greater protection for the rights of consumers in respect of privacy, anonymity, freedom of political speech, and artistic expression (3).

187 That copyright owners and their lawyers see it as appropriate to send cease-and-desist letters and take down notices to users who have a reasonable fair use or free expression defence, is indicative of severe dysfunction in the operation of the law. Heins suggests the law could be amended to reduce penalties and eliminate money damages against anybody who reasonably guesses wrongly about their use of copyright materials. She also suggests that a law that encourages alternative dispute resolution mechanisms, rather than expensive legal action, might encourage greater confidence in the legitimate use and re-use of digital materials.

Yet another way of changing the law, and the current imbalance between owners and users, is to introduce new laws in specific areas. One such proposal is for a Consumer Technology Bill of Rights that would make private, non-commercial uses of digital materials into positive consumer rights to read and access works (Vaidhyanathan, 2001). It would be a way of addressing the consumer issues raised by Rimmer and would provide a balance to the rights of the content owners.

Another is to adopt the Public Domain Enhancement Act. First put forward in the US in 2003, the proposed Act would require American copyright holders to pay US$1, fifty years after a work was published, to keep their work in the copyright system. If the $1 were not paid, the work would pass into the public domain.

The Bill lapsed but it was reintroduced into the US House of Representatives in 2005. It was actively opposed by the MPAA and has again been referred for consideration to the US House Committee on the Judiciary, a standing committee of the United States House of Representatives. Such a proposal is a small contribution towards a more balanced copyright regime, but a manageable one that would have the effect of increasing the number of works that would automatically be added to the public domain. The proposed Act involves a form of registration of protected copyright works, as suggested by Samuelson. A national database of registered and protected works could also have other benefits in the management of digital works under a reformed copyright regime.

Yet another possible legislative change is one that deals with orphan works, that is, those whose provenance is unknown or whose owner cannot be located. Such legislation in the form of The Orphan Works Act of 2008 and the Shawn Bentley Orphan Works Act of 2008 were introduced into the US Congress in April 2008, one

188 into the House of Representatives and one into the Senate. The two bills are similar in form. They would not introduce an exception or defence for the use of orphan works, but would limit the remedies a court can award against a person who infringes copyright by using an orphan work.

In Australia, it was announced in 2006 that the Federal Attorney-General’s Department would conduct an inquiry into orphan works but there has been no further announcement about developments in this area (ACC, 2008:2). In 2006, the Gowers Report on Intellectual Property in the United Kingdom, recommended that an orphan works provision be included in a European Union harmonisation directive. In July 2008, the European Union’s High Level Expert Group on Digital Libraries presented a report on copyright issues. The Group advises the European Commission (EC) on issues regarding the digitization and online accessibility of scientific and cultural works and it recommended greater access to, and use of, unidentified orphan works for the purposes of preserving works and making them available (European Union, 2007).

Orphan works legislation would allow the use of unidentified works, providing users can show that they have taken reasonable and appropriate steps to identify and locate the owner. Currently, potential users of orphan works are often reluctant to use such works out of concern that they may be found liable for statutory damages, amounting in US to as much as USD$150,000. A law that protected users from legal action when the works were used appropriately would obviously go some way to replenishing a public domain that has been reduced by repeated extensions of the period of copyright protection. While this is also a small contribution to the very large problems faced by the owners and users of digital works under the current copyright system, the idea of better managing orphan works has significant currency in a number of jurisdictions, perhaps because it does not require fundamental changes to their existing legal regimes.

In relation to the DRM systems of which the copyleft are so critical and which the Pirate Party wants banned altogether, the decision by Apple to remove DRM from its iTunes service has been referred to as ‘another step in the meltdown of DRM for music’ (Esquerra, 2009). It certainly undermines the arguments put forward by the content industries that their businesses cannot survive without laws that sanction DRM protection and provide criminal penalties for those who circumvent them.

189 Removing DRM and anti-circumvention provisions from the law would have the effect of removing content owners from continued exposure to hacking and to the failure of their DRM protection measures. As Lincoff says ‘The landscape is littered with failed DRM schemes and abandoned security initiatives’ (2008:11). DRM systems that have been used to limit access have been broken by hackers and digital natives who have been annoyed by the deliberate disruption of services with adware and spyware that is unwanted and that they consider to be unwarranted. Defective ByDesign (DBD), an anti-DRM organisation that runs an ongoing campaign against DRM (which they refer to as ‘Digital Restrictions Management’) are especially concerned when users searching for P2P files are sent corrupt files that damage their computers.70 For DBD and other digital enthusiasts, DRM serves little purpose other than obstructing new digital technologies and attempting to restrict user access.

In relation to the application of DRM to music, Lincoff points out that it is not realistic to protect a cultural product with which consumers have a very personal relationship, as if it were national security information. And presenting perhaps the most convincing argument against it, Lincoff points out that DRM has not prevented the loss of sales and the downturn in revenues in any of the big media industries (12).

Tarleton Gillespie in Wired Shut, focuses on changing the copyright laws that enable the ‘insidious’ use of DRM and the trusted systems of technological control that are deployed below the cultural radar to regulate culture and communication (2007:9). He provides convincing evidence that laws that protect such systems through anti- circumvention provisions should be changed if digital culture and technology are to deliver their potential economic and social benefits.

Finally, in relation to proposals for reform of the law, serious attention has been paid to the issue of the continual extensions to the period of copyright protection. Initially part of the ‘bargain’ that in 1710 limited the period of exclusive ownership of printed works to 14 years after creation, the current period of 70 years from the death of the author is perhaps the most contentious issue for reformists. Several theorists have suggested dramatic reductions. The Pirate Party wants a five-year limit. Rufus Pollock in his econometric modeling of copyright, somewhat ironically found that 14 years, the period of protection first set by the 1710 Statue of Anne, was the optimal period

70 ‘DefectiveByDesign’ is a project of the Free Software Foundation. Its website with campaign and other information about DRM technologies can be found at http://www.defectivebydesign.org.

190 for digital works (2007, v1.1:26). Benedict Atkinson suggests a limit of 18 years from the date of creation, the age of legal majority. He poses the idea that a copyright work is to a creator as a child is to a parent and that at 18 years of age, each should be legally free from its creator’s control (2007:xii).

Among other examples of possible reform, James Boyle names the reduction in the period of protection to twenty years, with a broadly defined fair use protection for journalistic, teaching and parodic uses, ‘provided that those uses were not judged to be in bad faith by a jury applying the “beyond a reasonable doubt” test’ (1996:172). Others have suggested that a 3 year period is adequate in the fast-changing media world where the life of much information and knowledge is transitory and where being first to market has greater economic (and other) benefits than those derived from the 4% of copyright works that are commercially viable after twenty years (Boyle, 2005: par.3).

It would be legally possible for domestic and international laws to be changed to reduce the period of copyright protection even though, as argued in relation to the Eldred v Ashcroft decision, courts that operate on the legal principle of upholding precedent decisions would be placed in the awkward situation of overturning the reasoning applied in their previous decisions.

The 17 noted economists (including several Nobel Laureates) who provided evidence in the Eldred v Ashcroft case concluded their amicus curiae brief saying:

Comparing the main economic benefits and costs of the (Copyright Term Extension Act) CTEA, it is difficult to understand term extension for both existing and new works as an efficiency-enhancing measure. Term extension in existing works provides no additional incentive to create new works and imposes several kinds of additional costs. Term extension for new works induces new costs and benefits that are too small in present-value terms to have much economic effect. As a policy to promote consumer welfare, the CTEA fares even worse, given the large transfer of resources from consumers to copyright holders. (2002)

The material in the amicus curiae brief raises interesting questions and perhaps explains the cynicism behind the CTEA being referred to as the ‘Mickey Mouse Act’. If copyright term extensions do not provide an incentive to produce new works and do not promote consumer welfare, what role do they play in the copyright bargain? If

191 they impose additional costs and their benefits are generally ‘too small’ to have much economic effect, what other justification can there be for their having been implemented 11 times in the US during the forty years leading up to the Eldred v Ashcroft case? The answers seem inevitably to be associated with the power of the content industries to influence law-makers at the policy level and to rely on the courts to interpret the law in their favour.

Politically, reducing the period of copyright protection would be difficult without convincing evidence that there would be no major financial loss to copyright owners. But there is already considerable economic theory to support the idea that the losses might be less than those currently claimed by the industries as attributable to piracy or to the large amounts expended on copyright education and enforcement. This indicates that opposition by copyright owners to legal reform may actually reflect concerns about the position of power and control that they currently occupy, rather than simply revenue.

*****

While approaching law reform from different perspectives, all of the above advocates for reform view copyright law, not digital culture, as the problem to be addressed. Implicit in their criticisms of the current laws and their suggestions for alternative models, are a confidence in the value of digital technology and the public domain, and a commitment to better ways of managing intellectual property in a digital environment.

If this is the case, the same confidence in digital technology, the public domain and a sense, at least, of other ways to manage intellectual property should be discernible within digital culture. There should be enough evidence in the values and practices of digital creators to predict whether there is any momentum for change, not just from legal commentators and theorists, but from digital creators themselves.

To test the proposition that digital culture might prove to be an impetus for legal change, in September 2006 a specific research study for this thesis was undertaken with 30 print based creators and 28 digital creators in Australia. The creators were asked to respond to questionnaires about their creative practice and to comment on

192 71 statements designed to elicit their attitudes towards copyright law. The intention of the questionnaires was to identify particular characteristics of their creative and professional practice and to discern support among them for changes to copyright law. The questions asked of the creators included issues such as:

• Their motivation to create;

• How each earns a living;

• How they practise their creativity;

• Attitudes to, and knowledge and experience of, copyright law;

• Familiarity with alternatives to intellectual property models such as open source and Creative Commons licensing;

• Attitudes toward having their work ‘copied’;

• Attitudes towards knowledge, information and the public domain;

• Attitudes towards particular features of digital culture and print culture, such as file-sharing.

The 30 print creators (14 women and 16 men) were ‘Full’ members of the Australian Society of Authors (ASA).72 The 28 digital creators (16 women and 12 men) were either members of, or were contacted through, the Australian Interactive Media Industry Association (AIMIA).73

Based in Sydney, Australia, the ASA is a professional organisation representing 3000 Australian writers, poets and illustrators. Eighty potential ASA participants were randomly selected from the ASA database of Full members and were invited to participate in the questionnaire. They could remain anonymous.

Thirty Full members responded. On the advice of the ASA Director that the members would be more comfortable with a paper-based questionnaire than an online survey, a print-based questionnaire was emailed to them. It could be completed as a ‘Word’ document and be returned either by email or post. Four respondents posted their

71 The Questionnaires are included as Appendices I and II. 72 ‘Full’ members are published writers or illustrators in book, magazine or electronic formats. 73 In 2006, AIMIA had 3000 company and individual members working in online media as content creators, producers, advertisers and web, games and software developers. AIMIA is based in Sydney Australia.

193 results. The other 26 completed the 20-question document electronically and returned it via email. Respondents from the ASA included fiction writers, poets, academics and textbook authors. Several practised in more than one area and some had experience of publishing work both in print and online. Their average age was 54 years.

Digital content creators were approached through AIMIA networks and asked to volunteer to participate in a survey about digital culture. The survey was conducted online on the assumption that digital creators would be familiar with online surveys.74 The survey comprised questions similar to those asked of print-based creators. Twenty-eight digital creators completed the online survey. They identified themselves as content developers, web developers and digital producers. Their average age was 34.

After the questionnaires had been completed, participants in both surveys were contacted by email and asked if they would be prepared to participate in a follow-up interview to explore issues that emerged about different values and practices. Eight print creators and 10 digital creators agreed to participate.

There were some common responses from creators, regardless of the area in which they practised. For example, when asked in the questionnaires about their motivation for creating new works, a majority in each group nominated ‘personal satisfaction’. Other possible answers were ‘earn a living’, ‘job requirement’, and ‘professional recognition’.

Selecting personal satisfaction as a primary reason to create raises interesting issues in relation to copyright and the often-stated rationale, particularly by copyright maximalists, that without copyright protection, creators would lose their economic incentive to continue to produce works. But the explosion of ‘free’ digital content on social networking sites and other non-commercial platforms seems to indicate that digital creators produce works for a range of reasons other than making money. For print creators, their low levels of remuneration (see below) reveal that their motivation to create new works often relates to personal rather than financial rewards.

In the follow-up interviews with creators, all were asked whether they would continue to ‘create’ without financial reward. Regardless of their area of creativity and their income level, all print creators agreed that they would continue to write. One

74 The online survey was prepared using ‘surveyshare’ software at http://www.surveyshare.com

194 mentioned that writing was a way of life rather than a discrete activity, indicating that there was little distinction between her personal and professional creative work. Digital creators agreed that they would continue to do the same sorts of digital activities, whether or not they were being paid. One noted that while the activities were similar, the sense of audience is different when creating professional works for the commercial marketplace. Three of the digital interviewees differentiated between non-commercial, playful creativity and their professional work.

Some of the differences between the two groups were also notable, in particular the different levels of remuneration for their creative work. Digital creators were generally better paid than print creators and were far more likely to have creative work as their major source of income:

Print Culture: 66% earn less than $10,000 pa; 40% have professional creative work as a major source of income;

Digital Culture: 72% earn over $10,000 pa; 100% have professional creative work as a major source of income.

One third of the print creators earned more than $10,000 a year from their creative work and of the 40% who relied on their creative work for their main source of income, all except one, a fiction writer, were writers of non-fiction or scholarly/educational works. All other fiction and poetry writers earned less than $5000, an amount that corresponds with the 2003 Australian study by Throsby and Hollister, Don’t give up your day job. The Throsby and Hollister study reported that the median creative income for the writers surveyed in 2000-2001 was a mere $4,800 (45).

Over 70% of the digital creators earned more than $10,000 from their creative work, either in their own businesses or under negotiated contracts with employers. Over half of these earned more than $80,000 and all listed professional creative work as their major source of income.

From these responses it seems that digital creators are able to earn a comfortable living from their professional creative work. This reflects the findings of numerous studies and reports that claim that digital skills are much in demand in the fast- growing knowledge/information economy. The skills of digital natives are seen as valuable and their comments in follow-up interviews make it clear that they work in

195 an environment where their creativity is celebrated and well-remunerated. They are confident about their work futures.

The comments of some of the print based writers, on the other hand, reflected a culture where creativity is less well-rewarded and celebrated. It is a culture where, according to the study undertaken by the US National Endowment for the Arts (NEA), fewer people are reading books (NEA, 2004). Even the gravitas and authority once associated with books is reported as fading (Young, 2007:37). Sherman Young says that books seldom matter anymore and that authors are no longer the font of all wisdom. And publishers are no longer the sole gatekeepers of knowledge (53).

Print-based creators reported that it is difficult to get published, to get an agent and to negotiate reasonable contracts. In the commercial marketplace, most are paid a royalty of 3-10% of either the net or retail price of their books, which now have a shelf life of just a few weeks before they are replaced in bookshops. In Australia, since the ‘Bookscan’ service started providing accurate data on book sales across the country, slow-moving titles are quickly replaced by books from celebrity authors or those whose previous books sold well. ‘Today, a second novel is unlikely to be published if the first does not work’ (Young, 2007:95). Thus, with the exception of a few high profile writers of fiction and children’s books and some text-book writers, almost all of the print creators have the ‘day job’ that the Throsby and Hollister study referred to.

A second obvious difference related directly to the ways in which the two groups practise their creativity:

Print Culture: 100% ‘solitary’ creators; 17% also work in partnerships;

Digital Culture: 10% ‘solitary’ creators; 90% work collaboratively.

When specifically asked whether they worked as solitary creators or collaboratively, 100% of the print based creators selected ‘solitary’ as their main form of creative endeavour, with 17% of them also choosing occasional ‘partnerships’ with other creators, including illustrators.

Only 10% of the digital creators had worked as solitary creators. Ninety per cent of them, whether self-employed or as employees, worked collaboratively or in multimedia teams. These responses support other evidence of the collaborative nature of digital practice and help explain the ‘sharing’ dimension of digital culture. Most of

196 them share ideas, materials and technological tools to produce ‘works’ which are themselves multimedia combinations of graphics, music, print and audio files.

That these different work practices might affect attitudes towards property in their work was confirmed in answers to subsequent questions about copying of their work. About half of each group was aware that their work had been copied:

Print Culture: 5% would be flattered by being copied; most of those whose work was copied took no legal action: ‘too expensive’, ‘not worth the effort’;

Digital Culture: 48% would be flattered by being copied; 100% took no legal action against copiers: ‘not worth the effort’, ‘too expensive’, ‘not my responsibility’.

When asked about their responses to the copying of their work, only 5% of the print creators agreed that they would regard copying as a form of flattery. When asked whether they took any action when their work was copied, four print creators had tried to contact the copier, and three of them subsequently took legal action to protect their work. Of the three who took legal action, either directly through a lawyer (two of them) or with their publisher, two selected ‘no satisfactory outcome’ as the result and one explained that negotiations were still underway. The other print creators who took no legal action when their work was copied selected ‘too expensive’ or ‘not worth the effort’ as their reasons.

In contrast, almost half (48%) of the digital creators acknowledged that they would be flattered by someone copying their work. None took legal action when they became aware that their work had been copied. Some nominated ‘too expensive’ or ‘not worth the effort’ as their reasons for not taking legal action. Exemplifying the previously mentioned ‘work-for-hire’ dimension of copyright law that vests ownership of copyright in employers, two digital creators indicated that most of their work was ‘owned’ by their employers and therefore copyright breaches were not their responsibility. For them, as for the digital natives profiled in Chapter 2, the copying of works owned by corporate entities had little impact on their own interaction with copyright law.

In the follow-up interviews, several of the digital creators added that it was not just the cost and effort that deterred them from using copyright law to protect their digital work on the Internet. One commented that the advantage was to be first to market with a new idea, product or service to attract buyers or advertising or sponsorship.

197 Two with their own businesses specifically mentioned that it was not in their interests for their resources to be tied up for years with lawyers pursuing copiers of their work. Once the work was ‘out there’ on digital networks, they knew it was possible for the idea and the format to be copied. In line with the values and practices of other digital produsers, they said that they were more interested in creating new products than protecting old ones.

The responses to the question about copying and flattery indicate that the print-based creators, who mainly work alone with their thoughts and words, have a more personal and protective attitude towards their work. Certainly, print creators have a tendency to be more precious about the originality of their work with which they are closely identified – and this would explain their being more disturbed by someone copying it.

Digital creators, who work collaboratively, are less protective of their work and almost half indicate that they would be more likely to be pleased than affronted if their work were copied. Again this confirms the notion, explored earlier, that personal identities are not as closely connected to digital works that are often just the ‘latest version’ of a work and for which there may be no individual, identifiable author. Copying of digital works may be a legal offence but to digital creators it can also be a celebration of their work and an indication that it is being ‘shared’.

That so few creators in either group took legal action when their work was copied indicates that the current law is not seen as the obvious way to redress copyright wrongs. In fact, a majority in both groups apparently sees copyright law as beyond their reach. Most indicated that it is either too expensive to engage a lawyer or not worth the effort because it is both time and energy-consuming. Chasing even a minor breach of copyright can involve up to AUD$20,000 in legal fees and, if pursued in the courts, might take two years to be decided.

But the results also seem to point to differences in attitudes to copyright between print and digital cultures. Some print creators obviously still think that copyright is a relevant, if expensive, way of protecting their work, while digital creators are more inclined to expect that their work will be copied. For them, in both cultural and economic terms, being innovative and first to market are more important than being copied.

198 Differences in attitude were further revealed by the responses to five statements relating to copyright and cultural practice, from which some interesting data emerged.

1 ‘Copyright is stifling innovation and creativity.’

A majority of the digital creators (67%) agreed that copyright is stifling innovation and creativity. In follow-up interviews with 10 of the participants, the main objection was the time and expense involved in clearing the rights to use existing works. They said the fees were ‘exorbitant’ for well-known copyright works and ‘very expensive’ even for lesser-known works. There was also reference made to the uncertainty about the rights to particular works when original creators or current owners could not be identified or located. Two digital creators were familiar with the idea of copyright ‘fair dealing’ but had little knowledge of how it could be applied. Seven of them had accessed community sites, such as the photo-sharing site, Flickr, to source images and unless they were working on a major (well-funded) project, they digitally mastered or created their own sound tracks from freely available material.

Their responses made it clear that the costs of accessing and using copyright works could be prohibitive. Confirming the existence of two parallel streams of commercial and non-commercial works, they were already accessing works from the non- commercial stream, rather than negotiating rights for protected works. As mentioned, Karl Fogel suggests that eventually this stream will become mainstream and copyright, while remaining ‘on the books’, will atrophy from disuse (2005).

In contrast to the digital creators, only 17% of the print creators thought that copyright was having a negative effect on innovation and creativity. Of the eight who participated in follow up interviews, six thought that copyright laws were essential to protect their work and that of fellow writers and artists. Perhaps like the content owners who continue to apply DRM to their products in the hope that it will deter all but the extreme hackers from copying, two print-based creators mentioned that copyright was important, even though they could not afford to take legal action if their work was copied. Three mentioned that copyright laws should be better promoted in schools and universities.

2 ‘File-sharing is a cultural phenomenon, not a criminal act.’

199 The great majority (85%) of digital creators agreed with this statement; 16% of the print creators agreed. This is a significant attitudinal difference that can possibly be explained by the way each group creates and by their familiarity with the sharing dimension of digital culture. For digital natives, software and computers are basic tools; using them to share and collaborate on projects is not only what digital technology does well, it is essential to their ability to innovate and create new products and get them quickly to a global, networked market. For digital creators, a law that criminalises copying and sharing when this is what computers and digital creators do to earn a living, is both anachronistic and obstructive of digital creativity.

Their answers to other questions reveal that they have a greater awareness than their print counterparts of P2P file-sharing technologies. Ninety per cent knew of, or had used, open source software, 65% were familiar with CC licences and all had used social networking sites and the user-generated site Wikipedia. It is likely that their familiarity with these digital artifacts and the collaboration involved in the creation of new digital works, significantly undermines any notion of the sanctity of privately owned works and of the laws that protect them.

With the print creators, fewer than one-sixth agreed that file sharing was a cultural phenomenon rather than a criminal act. This reflects the more personal relationship that print creators have with their work and their belief that the law should provide a form of protection for their property. Those who steal it should be legally liable and should be held accountable. It may also reflect their lack of familiarity with digital tools and platforms. The fact that only 28% were familiar with open source software and 44% (mainly the academic writers) were familiar with CC licences, indicates that many of the print creators have not been exposed to the now pervasive attitude within digital culture that created works can be made more available and more accessible to wider audiences, without necessarily being part of the commercial publishing marketplace.

For some print creators who still use computers primarily as word processors, file- sharing or unlawful copying of their work is akin to stealing their personal property. As solitary creators, they are used to working in the fixed medium of print where their personal connection to their words or illustrations is visible and controlled. Indeed, in a way that is reminiscent of the author-genius ideology of the 18th century Romantic movement, some authors, particularly fiction writers, will not discuss their work with

200 others nor let them see their work in progress. One author explained that she was very superstitious about moving her ideas from her private ‘head space’ to the public world before completing a final draft of a novel. To do so, she explained, was to risk being influenced by other people’s ideas and feedback and to risk losing her image of the characters and the storyline.

This is in stark contrast to the digital creators who know that their work is almost always a work in progress – and where feedback and input from others is accepted as a legitimate way of reshaping and repurposing a work to make it more popular and marketable, or more accessible. It is also in complete contradiction to the way new cultural products such as Wikipedia and other sites rely on the process of collective intelligence and user-generated content to create or modify works.

3 ‘It is more important to protect the individual works of creators than to create a bigger public domain of accessible work.’

Almost all (90%) of the digital creators disagreed that protection of individual works is more important than creating a bigger public domain of accessible work. This supports their previous answers about the problems associated with sourcing and licensing copyright work for re-use. It also reflects the identifiable trait within digital culture of championing the public domain, rather than the private ownership of works.

More than half of the print creators thought protecting individual works was more important than creating a bigger public domain of accessible works. This supports their previous responses that showed a greater sense of ownership of their works and the desire, at least in principle, to have them protected by law. It also indicates less interest in accessing the work of others and lends credence to the idea that for the print creators, the ‘author-genius’ model where creativity comes from within, is a more comfortable model than a collaborative one.

4 ‘Obscurity, not piracy is the problem on the Internet.’

This statement is attributable to the previously mentioned Canadian science fiction writer and blogger, Cory Doctorow, who has been giving away his books online since his first novel was published in 2003. Like many music groups, such as Radiohead that offered its new tracks for download on a pay-what-you-like basis before making them commercially available on CD, he argues that he loses nothing by making his

201 work available free online. Online publication means inexpensive and ubiquitous ‘viral’ distribution and it creates an audience that, he claims, is enticed to buy the printed version.

Doctorow and others make the point that business models based on scarcity and the tight control of access and supply are simply not relevant or workable in the digital environment. In the Forbes.com online article (for which he says he was paid handsomely), Doctorow says ‘The Internet not only sells more books for me, it also gives me more opportunities to earn my keep through writing-related activities’ (2006, par.18). For him, it is far worse to be unknown than to have his work pirated. The same is true for the many musicians who have reported that it is better to earn money from live concerts, T-shirts and CDs sold directly to an expanded fan-base than to have the production and distribution of their work controlled by a record label company – and be paid a small net royalty.

Eighty per cent of digital creators agree with Doctorow about obscurity on the Internet. For them, success relies on attention, website hits and a network of loyal users. Being found is more important than being copied.

For print authors, however, the majority (74%) thinks that piracy rather than obscurity is the problem. Some expressed reluctance to place their works online for fear that they would be copied. It seems that for them, protecting their work from being copied may be even more important than having it published to an audience.

5 ‘Creators should be able to designate their work copyright-protected or copyright-free.’

This statement elicited perhaps the most interesting of all responses in relation to copyright law and the different attitudes of respondents.

It would not be surprising to find that all of the digital creators agreed with this statement. Handing responsibility to the creator to determine the level of copyright control over a work would seem to be in line with produsage and with digital culture’s greater tolerance of copyright flexibility. But 15% of digital creators did not agree that creators should be able to decide the level of copy protection. Their explanations offered in the follow-up interviews ranged from one interviewee who did not know why she disagreed and one who said that all work should be copyright-free, with the market deciding its value. Another, who agreed that he had interpreted the question as

202 a legal one, explained that he thought that copyright protection should be determined by contract.

A surprising 100% of print creators, however, agreed that creators should be able to decide whether their work was copyright protected or copyright free. Thus, in spite of the greater commitment to copyright law and a more conservative approach to the protection of individual works, all of the print creators thought that there should be an alternative to the automatic protection that copyright law imposes on all works.

Their responses suggest that they too would like a ‘play’ space, or the sort of ‘free- use zone’ that Jessica Litman suggests makes a great deal of sense (2001:117). This would ostensibly allow authors to experiment with their work and that of others, perhaps anonymously or pseudonymously, without necessarily involving permission or payment.

Certainly the strong response from the print creators pointed to an area where even they would like copyright law to change. In follow-up interviews, several print creators who worked in academe were aware of the CC licences that provide ways to ‘Share, Remix, Reuse – Legally’. The point was made that some would like to make parts of their work available for discussion, debate and development in a more flexible copyright environment. The academic writers who had published work using CC licences in order to receive wider exposure would do so again. One was experimenting with a personal weblog, inviting comments on works in progress, but had so far (after 2 months) received few visitors to the site.

This research with print and digital creators in Australia reveals that they can live with copyright laws that support the business models of the content industries, providing they can also develop more flexible models that incorporate a non-commercial copyright-free zone of works that can be shared, sampled, borrowed and repurposed. Digital creators particularly want to be able to move quickly into new markets with new works. This might involve reintroducing a form of registration for commercial copyright works as suggested by several of the copyright reform theorists. Unregistered works would create a legitimate rather than an unlawful public domain and provide a space to access and transform existing works to create new ones. A system of registration would offer a relatively inexpensive opportunity to use DRM

203 technology to register works, by providing the metadata to make works available, rather than restrict access to them.

*****

With respect to digital culture and the momentum for change, the empirical research involving questionnaires and follow-up interviews with digital and print creators in Australia, points to the existence of a distinct digital culture, which has a more collaborative practice and a less proprietorial attitude towards created works. Digital creators are less concerned about their work being copied than they are about the opportunities to quickly produce new works without the sometimes insurmountable barriers posed by obtaining rights clearances or paying expensive permission fees. They tend to see file-sharing as normal digital practice and they place greater value on a public domain of accessible works. Print creators, while demonstrating more conservative attitudes towards copyright law and the protection it offers, also indicate a preparedness to accept change that would allow them greater freedom to experiment with limited forms of unprotected online creativity.

From this it is possible to see that digital culture is contributing to a ‘different form of social organisation’ based on a different philosophy about the ownership and control of knowledge products’ that Moglen identified (2003: par. 35). It also seems that individual authorship might be losing some of its social and economic cachet.

This has major implications for a copyright regime that has been predicated on the authorship and ownership of individual works. It can also be connected to a different economic model where the value of created works is not necessarily tied to tight control of their production and distribution and the manipulation of supply, demand and pricing. In the digital networked environment, freer and more collaborative practice allows produsers to be more creative and innovative. Whether they are self- employed or employees, they are generally better remunerated than their print-based counterparts.

The research also supports the arguments from the copyleft that the law has lost credibility with many creators. Both digital and print creators agree with the principle of protecting creators’ works, but in practice, over half of the creators in the Australian study were aware that their work had been copied. Of those, few thought it

204 worth using the law to protect their work. It is too complicated, too expensive and too time-consuming. And it is often too late to be of any real value.

Copyright laws no longer reflect the practice of digital culture. Where the laws do not fit their practice, digital creators either ignore them or, like the distributed digital technologies that route around obstacles on the network, they work around them. Digital creators generally see the law as stifling the innovation and creativity that they value, not facilitating it. And by criminalising what digital creators see as the cultural phenomenon of sharing, the law has lost the respect of both professional creators and the millions of produsers who continue to file-share and collaborate on the Internet, regardless of legal rules.

By far the majority of the creators, including all of the print creators, wants a change that would allow them to decide whether their work forms part of a legally protected copyright system. It would seem that they would not be averse to a law based on a distinction between commercial and non-commercial works and a law that was short, simple and fair, as proposed by Jessica Litman.

The Australian research also supports other evidence of economic and social reasons for the law to change. From the answers given by the digital creators, it is their work and their collaborative practice and skills that have the greater economic value in the current marketplace. The creative industries, of which they are part, are among the most dynamic sectors in the Australian national economy and in world trade (Howkins, 2001). The 2008 Creative Economy Report from the United Nations Conference on Trade and Development (UNCTAD) notes that the creative industries are emerging as a strategic choice for reinvigorating economic growth, employment and social cohesion. UNCTAD puts the value of world exports of creative goods and services in 2005, at $US424.4 billion dollars (UNCTAD, 2008). An Australian study by PriceWaterhouseCoopers found that the copyright industries have grown considerably over the past 12 years and comprise a ‘substantial portion’ of the Australian economy (3). In 2006/7 they constituted 8% of the Australian workforce, generated economic value equal to 10.3% of gross domestic product (AUD$97.7) and generated 4.1% of Australia’s total exports (2008:3).

If then, as suggested by numerous studies and the research with Australian creators, the law is acting as an impediment to the development of the creative industries, there

205 are further economic arguments that the law should be changed to encourage digital developments. For digital creators, the social and economic imperatives are to be innovative and first to create and market new products on new platforms, without having to negotiate the increasingly complex legal minefield overseen by copyright lawyers. For them, to be noticed is more important than to be copied. A legal system that recognised file-sharing as a cultural phenomenon and not as piracy and a criminal act, would allow the quicker production and dissemination of digital works. A copyright system that allowed the development of a larger public domain, both to use and to contribute to, would make a considerable difference to those creators whose practice involves remixing and transforming existing works into new products and services.

Finally, in terms of demographics, the Australian digital creators are younger on average than their print-based counterparts and are likely, by their own assessment, to be successfully creating into the foreseeable future. As their ‘digital generation’ culture becomes more prevalent and more dominant in both the creative economy and in professional spheres, it also seems likely that greater pressure will be brought to bear on the laws that constrain their cultural and creative practice. As Schumpeter’s new businesses based on new technologies eventually replace old ones, the values and practices of digital natives seem likely to replace those of the print generation that preceded them.

*****

There is little doubt that there are ways to manage to the production and distribution of digital works that are not dependent on the lengthy period of ownership and the enforced protection of knowledge, information and entertainment products. Eben Moglen has explained it by saying ‘the central executable elements of human technology can be produced by sharing - without exclusionary property relations’ (2003: par.9). As well, international research and many studies identified in this thesis have suggested alternatives to the current legal regime, from a change of emphasis from owners to users, to a total reconceptualising of copyright around digital rather than print technology. Australian creators have identified the value to them of a copyright-free space where strict ownership rules do not apply. Whatever the way, Samuelson says that change must be characterized by a positive agenda and not just

206 be a reaction against the legislative initiatives of the content industries. It must be grounded in an understanding that information is not just a commodity but a resource and an input into culture, competition, innovation and democratic discourse (2003:117).

All proposals for change explored in this Chapter address the culture clash between the copyright incumbents and the emerging digital culture. All opt for some recalibration of the copyright balance to accommodate digital culture, particularly by reinvigorating the public domain. None assumes that the copyright incumbents should not play a role in the information marketplace, nor that creators be deprived of payment for their creativity, if they wish to produce commercial works.

What is preventing the implementation of this third possible solution to the copyfights is the resistance of copyright’s best-resourced and most powerful stakeholders to changes that threaten their incumbency. Their numbers include not only the content industries but also the law firms and legal professionals who work in copyright collecting societies and in the organisations that advise on copyright policy and law.

Both groups have vested interests in the current system and both have resisted technologies and digital practices that challenge their entrenched attitudes towards copyright as an inalienable right that must be protected and that cannot be changed, except to be strengthened. The music, film and publishing industries understandably wish to preserve their assets and their income streams for as long as possible. The copyright lawyers who advise the industries and government policy-makers want to preserve their expertise. But evidence indicates that the income streams from traditional, copyright protected businesses are falling, regardless of the amount that lawyers are paid to pursue and enforce the law. Australian copyright lawyers are getting little, if any, work from individual print creators who can no longer afford their services nor from many digital creators who no longer seem to need them. Eventually, it may be these economic considerations, as Milton Mueller suggests, that encourage the copyright industries to support changes to the law that preserve some of their empires, whilst allowing digital culture to flourish. Alternatively, it may be as Brian Fitzgerald has suggested, that they are forced to change their views when they themselves are challenged at law by the digital corporations, like Google, that have prospered by accommodating digital culture.

207 Any of the changes to the law canvassed in this thesis would involve some capitulation by the copyright maximalists. The changes might exacerbate short-term harm and even destroy some of their businesses, but the Schumpeterian theory of creative destruction is as applicable to the digital revolution as to the agrarian and industrial revolutions before it. It seems only a matter of time before the pervasiveness of digital culture and the financial power of new digital corporations displace the old print-based business models and force changes to copyright laws to both encourage and protect new digital models. The changes are likely to be those that the copyleft movement has identified as necessary for the law to retain its credibility and for digital culture to better realise its social and economic potential.

208 8 Conclusion

In Chapter 1 of this thesis it was suggested that digital technologies and digital culture have so altered the ways in which knowledge and information are produced and disseminated that, in a 21st century knowledge economy and network society, a legal regime based on copyright is no longer socially or economically propitious. The issue at the centre of the hypothesis was whether the dynamic combination of digital technologies and digital culture would eventually force changes to discredited copyright laws. Three questions were posed about digital technology and culture and their relationship to copyright law. It was anticipated that evidence adduced to address them would indicate the likely future of copyright law as it faces the digital challenge and also provide some insight into the broader 21st century question of who should own, control and benefit from intellectual property in a networked economy and information society.

The first question was whether digital technologies and digital culture have created new forms of social organisation and a different philosophy about the nature of human intellectual production.

As previously noted, Manuel Castells connects the revolution in digital communication technologies with the emergence of the modern ‘network society’ (2000:15). While taking different forms depending on the cultural and institutional environments in which it evolves, the network society is nonetheless associated with the interaction between communication technologies, social structure and social change. And because information and communication are fundamental dimensions of human activity and organisation, Castells contends that major changes that affect them, ‘affect the entire realm of human activity’ (9).

The evidence provided in the thesis attests to such change in the patterns of behaviour of the ‘echo-boomer’ digital natives who have grown up with digital technologies. Their values and practices are markedly different from those of the pre-digital generation and even from those who are digital ‘immigrants’, rather than natives (Prensky, 2001[1], [2]). Their salient characteristics are their digital skills and

209 intercreativity, their produsage, their multi-tasking and the sharing and collaborative nature of their personal and professional interactions. Their forms of social organisation, as exemplified in the structure and functioning of the Pirate Party, are more open and less hierarchical than those of the pre-digital society and, unlike those who relied primarily on analogue technologies, they expect their communications to be both immediate and global. They are impatient with obstacles to unfettered access to digital works and many willfully break the digital locks that prevent their access, and break the laws that supposedly govern it.

Digital natives in developed countries with high levels of broadband access have experienced freedom and autonomy in their online activities. The communities to which they actively contribute are sources of information and connectedness that feel free of the centralised control of commercial mass media and digital natives seem unlikely to relinquish the participatory medium of the Internet for any sort of pre- digital media models imposed by laws that they neither respect nor obey. Michael Strangelove says the digital generations have become free to produce and disseminate their own version of the world, unconstrained by the market economy of corporate media (2005:5). Their global interactions are no longer restricted by geographical or national borders and they reveal values and relationships that are both more personal and more communal.

Their intercreativity has created phenomena such as social networking, culture- jamming, crowdsourcing and citizen journalism, much of which takes place outside the market economy (Flew and Wilson, 2008:3). Their commitment to free and open source software, to open source journalism and open access scholarship are all aspects of a more socially-conscious generation whose form of social organisation departs significantly from the generations whose interactions were circumscribed by less sophisticated and more centrally controlled communication systems. It is clear that they will not be satisfied with what Rosemary Coombe calls a corporately controlled cultural ‘commons’ made up of only private properties (1998:54).

Digital natives also demonstrate a generally less proprietorial attitude to the cultural products they use and create. Unlike the Australian print-based authors who express a strong sense of ownership of their work, the digital creators regard the appropriation of digital materials and peer-to-peer networking as fundamental to computer use and creativity. And they are less concerned about copyright protection for their own work

210 and that of others. Significantly for the laws that purport to manage market-based cultural production, many of the digital generation demonstrate disinterest in the ethics of private property on which the market economy is based (Strangelove, 2005:5).

Castells describes the salient values of the digital natives of the network society:

the value of freedom and individual autonomy vis-à-vis the institutions of society and the power of corporations; the value of cultural diversity and the affirmation of the rights of minorities, ultimately expressed in terms of human rights; and the value of ecological solidarity in their commitment to the human species as a common good, in opposition to the industrial values of material growth and consumption at all costs. (2000:19)

Other commentators also highlight the differences between the characteristics of the pre-digital and digital cultures. Eben Moglen, places great importance on their particular characteristics of sharing and collaboration and suggests that they signal ‘the death of proprietary culture’ (2003). In a speech at the University of Maine Law School Fourth Annual Technology and Law Conference in 2003, he used the free software movement to identify the emergence of a social movement and a new, non- proprietorial philosophy about the production and distribution of culture. He argued that software and other cultural forms of intellectual property that now constitute the ‘most important goods’, should be seen as public utilities, not commercial commodities. Referring to Stallman’s notion of the ethical right to share, he asked whether it could be moral to exclude anyone from access to intellectual property that can be produced at zero marginal cost? He also claimed that digital production based on ‘free’ sharing produces superior products and that ‘free’ distribution through computer networks is both more efficient and more robust than through physical outlets. He concluded that it is inevitable that the new philosophy of free information will eventually triumph over copyright maximalism (par. 35).

Eben Moglen’s claims are supported by the responses of the students at QUT who were all critical of aspects of copyright law. The students, who will graduate into positions in the legal profession and the creative industries, were well-informed about copyright law and thoughtful about its role in the management of knowledge and information in a digital environment. Their responses indicate that they see the current law as anachronistic, bureaucratic and even as a ‘vehicle for corporate greed’. All

211 agree that it ignores the interests of creators and the public in favour of the producer- owners of intellectual property, and all but one agree that file-sharing for personal use should be decriminalised. All nine students expressed dissatisfaction with the current law and thought that it was in need of reform.

In 2003, Moglen published a document that he called the dotCommunist Manifesto. He later claimed that he wanted to show that a form of social analysis, characteristic of those searching for freedom in the 19th century, might bear some recognition in the 21st century when the ownership of culture and the commoditization of learning are posing a new danger to a movement for equality and economic justice (2004: par.12). Framing his arguments along the lines of the 1848 Manifesto of the Communist Party (‘The Communist Manifesto’) and echoing the concerns of some copyleft theorists, he referred in the dotCommunist Manifesto to the ‘spectre’ of free information haunting multinational capitalism, paralleling the ‘spectre of communism’ that Marx and Engels described (2003: par.1). He positioned the ‘dotCommunist’ document as part of the centuries-long struggle for freedom of speech and the freedom of ideas (2004 par.3).

Other contemporary commentators have made similar connections to class and power struggles over ‘property’ and have drawn an analogy between Marxist theory and the copyleft movement. And in some ways, ‘communism’ and copyleft ‘commonism’ are comparable. They both involve a challenge to exclusive property rights, a seizing of the means of production (by ‘produsers’ and ‘pro-ams’), a democratising of the distribution of goods and services, and power to the people. Within this familiar framework, it is not difficult to cast the social organisation and the philosophy of the copyleft as a 21st century version of a challenge to capitalism and to its alleged intellectual property bodyguard, copyright law.

As already noted in Chapter 5, the communist bogey has frequently been used to demonise critics of copyright maximalism and to cast them as ‘info-communists’. Such accusations have provided an easy way to polarize the debate. They have made it more acceptable to dismiss arguments for greater access to copyright works and for an enhanced public domain as the propaganda of Marxists, or of the ‘Marxist- Lessigists’ that Dan Hunter referred to (2004:15).

212 But Hunter rightly points to the ‘extraordinary’ parallels between communist ideology and the current war over the creation of cultural content or ‘property’ (3). As Marx’s philosophy was a reaction against the concentration of power in the hands of capital during the industrial age, Hunter sees the same concentration of power in the intellectual property-based industries. He argues that it is not surprising that there is a reaction to the current regime and its laws, nor that the current owners of intellectual property are resistant to the challenge to their position (3).

In reality, the situation is much more complex than a simple dichotomy between communism and capitalism and between public and private property. Castells contends that the evolution towards new global, networking forms of management and production does not imply the demise of capitalism, but signals a new form of it (2002: 502). Milton Mueller, while acknowledging the powerful symbolic and political factors that fuel the binary debate, argues that it tends to radically dichotomise private and common property and that a more nuanced interpretation is required if there is to be a solution to the culture clash over freedom of information (2008: par.3). He suggests, at a philosophical level, that more attention could be paid to a genuine political commitment to liberalism and freedom of action, rather than the less defensible ethical obligation to share software or information as such (par. 7).

Even so, all of these commentators recognize that there is a new philosophy associated with the copyleft and its call for reform of national and international copyright laws. As Hunter points out:

the Marxist-Lessigist movement has provided the signal benefit of identifying the problems that occur with the relentless expansion of intellectual property interests. Without muscular social welfarist protection of the public domain intellectual property industries will never voluntarily reduce their expansionary claims. As we’ve witnessed time and time again, intellectual property rights-holders have always sought wider property grants, longer terms, and stronger enforcement mechanisms. And these

additional private interests are almost always extracted from the public. (2004:17)

At the international level, evidence of a different philosophy about the nature of human intellectual production was acutely demonstrated in the 2004 ‘Geneva Declaration on the Future of the World Intellectual Property Organisation’. The Declaration was signed by hundreds of individual scientists, academics and non-profit organisations from various countries and it called on the World Intellectual Property

213 organisation (WIPO) to change its focus from protecting existing property rights and to focus on the needs of developing countries, including humanitarian needs.75 As the global standard setter for regulating the production, distribution and use of knowledge, WIPO was urged in the Declaration to view intellectual property as just one of many tools for development – not as an end in itself.

Not dissimilar to the Bellagio Declaration of 1993 and the later Adelphi Charter, the Declaration, adverted to ‘a fork’ in humanity’s moral code and ‘a global crisis in the governance of knowledge, technology and culture’. It listed the following as problematic: inequality of access to medicines and to knowledge and education, barriers to innovation, technological measures designed to enforce intellectual property rights, concentrated ownership and control of knowledge, technology and biological resources, and private misappropriation of social and public goods. The Geneva Declaration also expressed an urgency about changing the international intellectual property regime. It concluded:

Delegations representing the WIPO member states and the WIPO Secretariat have been asked to choose a future. We want a change of direction, new priorities, and better outcomes for humanity. We cannot wait for another generation. It is time to seize the moment and move forward. (2004)

Cory Doctorow signed the Declaration as the European Affairs Coordinator of the EFF. Speaking of the Declaration and WIPO in an interview, he referred to the work of economist James Love, who had confronted the intellectual property hurdles in trying to make life-saving medicines available to developing countries (2008: par.12). Doctorow says that as a lone NGO, Love’s Consumer Project on Technology had little leverage until it was joined by EFF and the many individuals and the thirty organisations that contributed to the development of the Geneva Declaration. Under pressure from so many critics, WIPO subsequently agreed to examine a new ‘Development Agenda’ proposed by Brazil and Argentina and supported by other developing countries. The Agenda required WIPO to consider the impact of their decisions on developing nations, including assessing the impact of intellectual

75 WIPO is the United Nations organisation that administers international intellectual property treaties. A copy of the Declaration is available at the Consumer Project on Technology (CPTech) http://www.cptech.org/ip/wipo/genevadeclaration.html.

214 property law and policy on technological innovation, access to knowledge, and human health.

Doctorow encapsulated the philosophy behind the Declaration saying it is not simply a choice between piracy or monopoly:

There is a whole rich middle ground of public domain and open information regimes which could give developing world countries the tools they need to serve humanitarian purposes, while protecting the legitimate interests of authors, performers and inventors. (2008 par.4)

From the principles of the Adelphi Charter to the policies of the Pirate Party, there is both theoretical and empirical evidence from the copyleft movement of a different form of social organisation and a more egalitarian philosophy that shows no signs of being diminished by the expansion and enforcement of copyright laws. On the contrary, as the support for the Geneva Declaration and the acceptance by WIPO of the Development Agenda show, the tide may be turning in the other direction.

And while the commonism-communism analogy may be more rhetoric than reality, increasing numbers might still find themselves in agreement with Karl Marx who said of old laws:

They must necessarily alter in line with changes in the conditions of life. The defence of old laws against the new needs and claims of social development is fundamentally nothing but a hypocritical defence of outdated particular interests against the contemporary interest of the whole.’ (1973:250)

Thus, while proprietary culture may not yet be moribund, there are signs that the defence of the old laws may be weakening in the face of the different social organisation of digital culture and its different philosophy about the private ownership of human knowledge.

*****

The second question raised in Chapter 1 was whether digital technologies and culture had introduced such discontinuities into the social and economic fabric of 21st century industrialized societies that copyright law is no longer an optimal way to manage the production and distribution of cultural works.

215 Evidence from the research undertaken for this thesis indicates that in the networked society, copyright laws based on the strict ownership of cultural products are losing both social relevance and economic efficacy. Changes in technology, economic organisation and the social practices of digital produsers have created a new information environment in which laws that uphold the private ownership of information and cultural works are no longer optimal (Benkler, 2006:2). They no longer reflect the values of many of the digital generation and they no longer provide an efficient means of managing the production and distribution of many copyright works.

The monopoly rights that the law confers on content owners for long periods of time do not facilitate new forms of cultural production and in fact are seen by many to inhibit them. For digital producers – whose motivations to create range between personal satisfaction and being first to market with a new product – they do not provide a major economic incentive to create new works. They no longer manage the copyright balance or the traditional ‘bargain’ between users and owners of copyright works and they run counter to the collaborative culture associated with the production of non-market works. Most tellingly, in the digital environment where the network architecture precludes centralised control and where ‘copying’ is fundamental to computer function, they simply do not prevent copying.

Research with the digital generations in Sweden, the UK, the US and Australia all provide evidence that digital produsers see file-sharing as a cultural phenomenon, naturally arising from digital technology and networks. In all of these jurisdictions, however, the law casts this as a criminal offence, making felons of millions of otherwise law-abiding people who continue to use their personal networks to share text, images, music and videos. As with their access to free-to-air television and the sharing of books, digital natives tend not to regard this personal use of digital material as piracy or stealing and are not deterred by the law from accessing and using materials, regardless of their provenance.

While most digital natives agree that creators should be remunerated for their work, numerous studies reveal that they do not necessarily make a connection between accessing works for private use and depriving creators or ‘distant corporations’ of a fee for the use of their property. This separation of largely ephemeral digital works

216 from a physical plane – and from a direct connection with their creators or owners – has made laws based on the ownership of fixed works ineffectual.

The connection between the author and the work that emerged in the 18th century is now being seriously questioned with some suggesting that it was a peculiarity of the print era. As previously discussed, Tom Pettitt explains it in the context of the ‘Gutenberg parenthesis’. James Boyle sees it as a development that introduced too many property rights and led to an undervaluing of the interests of audiences. For the digital natives who access ‘free’ works on the Internet, there is apparently little connection between the digital work and an obligation to its author or owner. To the digital creators who were interviewed for this study and who all work collaboratively to create evolving versions of new works, there is often no single author who can be easily identified as owning particular digital works.

These views seriously challenge the ownership nexus between copyright holders and the work that underlies the jurisprudence of copyright law. Added to the more pragmatic challenges to the law from hackers and file-sharers, this disconnect in both mind and practice, seems ominous for the survival of laws so closely tied to the ownership of the works.

In terms of economic efficacy, it has been shown that ownership-based laws sit uncomfortably with digital technology and culture. Early culture-jammers, Negativland, suggest that the Internet was not designed as a commercially structured medium for selling digital data but as a medium for a free, open, and decentralized exchange of information and materials. They say that this foundational nature of the technology and software is proving extremely difficult to convert into commercial income streams. ‘Perhaps there will never be a way to make huge amounts of money from digital content on the Internet…’ (2005).

Negativland’s comments are supported by reports that online retail sales are currently generating only a small part of total revenues in most sectors of the economy. Newspapers are finding that the revenue lost as classified advertising goes online is not matched by revenue from online sites. The music and movie industries that claim to be losing millions of dollars each year from online piracy of their copyright works, are not recouping those losses from online sales. In fact it seems that most commercial Internet activity is between companies, not within the consumer sector.

217 Strangelove argues that survey after survey has indicated that on the Internet, social use dominates with online shopping accounting for only a small percentage of online time (2006:82).

Even the social networking sites that have found a place between commerce and the commons are facing difficulties finding a business model that guarantees the loyalty of their online communities. One choice is to continue, like Yahoo, to ride on the ‘free’ content of their subscribers and face charges of exploitation from the copyleft or, like YouTube, face expensive law suits from copyright owners like Viacom. Another is to turn their sites into pay sites, but risk losing their users to sites that are free of charge and feel free of regulation and control. Neither alternative seems to be a longer-term solution to the problem of monetizing the Internet.

Referring to the evidence in the amicus curaie brief provided by the economists in the Eldred v Ashcroft legal proceedings, and to a number of studies undertaken in the area of patents, Yochai Benkler concludes that in both theory and empirics, there is now remarkably little support in economics for regulating information, knowledge and cultural production through the tool of ownership-based intellectual property law (2007:39). Michael Heller goes further, arguing that a legal regime based on private ownership can have deleterious economic effects. Cultural production now requires the assembly of many separately owned bits of culture, and laws that insist on the ownership and protection of each individual bit can constitute too much ownership. They can lead to situations where agreement between multiple owners cannot be reached and can result in under-use and a ‘gridlock economy’ (2008:2).

The history of copyright as outlined in this thesis, shows that copyright law has been used to protect owners who now find that digital technology is undermining their property interests, in spite of a strengthening of the law. By allowing creators to go directly to their audiences for financial and social rewards, digital technology has bypassed the regime of ownership, threatening its obsolescence. As Esther Dyson predicted as early as 1997, in a digital environment, mere ownership of content no longer guarantees income. Businesses instead have to find ways other than selling copies to make money (1997:142). Jeremy Rifkin says ownership is being replaced by access, and the once manageable market is making way for networks where lived experiences, not products, are the consummate commodity (2005:10). Both Dyson and Rifkin emphasise that value now lies in human connection and relationships,

218 which are not easily commercialized or monetized. Within a digital culture, private ownership laws that impede access to the social experience of relationships and to sharing are alienating to digital communities who have shown that they will re-route around them to find or create Internet communities and platforms that meet their needs.

In economic terms, it is clear that the business models of the old media and content industries are under great pressure. The new models that depend less on ownership and more on ease of access are finding new markets and audiences, but few have managed to turn digital content and its distribution into sustainable, lucrative enterprises. At an individual level, the majority of print creators, who have never earned huge amounts from their creative work, are being further marginalised. In spite of their support for the idea of copyright protection, few can afford to use the law to protect their work when it is copied. At the same time, Australian digital creators are optimistic about their work futures. They earn very comfortable financial rewards for their work and are likely to feel flattered when it is copied. Being first to market with new products is more important than chasing copiers of their work. Being creative and being remunerated for their market-based work, are both more important than actually owning and protecting it. The bigger problem for digital creators is that by making access to works more difficult and expensive, the law currently makes it harder, not easier to produce new works.

In all, the evidence reveals that much of the culture clash between print and digital cultures is closely tied to the inappropriateness of applying ownership based laws to a non-hierarchical, collaborative social milieu. It is one where piracy and produsage are predictable outcomes of digital technology, and where the decentralised distribution of material through limitless networks has made ownership of cultural products no guarantee of economic rewards. In this context, and as copyleft activism and theory have demonstrated, imposing a strict legal regime of ownership on digital production and distribution has created, not ameliorated, social and economic discord. It has also fostered widespread disregard for the law.

*****

The third question posed in Chapter I was whether the new digital culture, with its collaborative and sharing dimension, would be modified to conform to the existing

219 laws or would it be so pervasive and powerful that copyright law itself would be forced to change.

It is now thirty years since Tapscott’s digital generation were born into an increasingly digital environment. Many of the younger digital natives have been exposed only to digital communications, and there is little evidence to show that their tendencies to collaborate, share and remix are being seriously threatened by existing or proposed copyright laws. Instead it can be argued that as stricter laws and greater interventions in to the online arena are introduced, the greater is the resistance from the now well-informed and articulate copyleft theorists and online activists.

In his landmark study of informationalism and the particular characteristics of the network society, Manuel Castells claimed that the historical record of technological revolutions shows that they are all characterised by their pervasiveness, that is by their penetration of all forms of human activity, ‘not as an exogenous source of impact, but as the fabric in which such activity is woven’ (2000:29). By this he meant that they are truly revolutionary when they diffuse through the whole economy, the culture and institutions of society and business firms. By their pervasiveness, they require the factors intervening in the production process, including the laws that govern it, to undergo substantial change.

Digital culture and technology combine to produce such pervasiveness. Castells points out, that within digital culture where users learn technology by doing, they end up reconfiguring the networks and finding new applications. The feedback loop between introducing new technology, using it, and developing it, becomes much faster. This endlessly amplifies the power of new technology as it becomes appropriated and redefined by its users (31). Users and doers become the same. With the Internet, the technology and the culture merge to suffuse through society and the economy.

In this way, both digital technology and culture have continued to permeate aspects of social and economic life. Demonstrable firstly in the software and music industries, but now visible within the movie and publishing industries, even in scholarship, science and medicine, people all over the world have defied or bypassed the law to collaborate in the production and sharing of copyright works. Their unlawful acts are given sanction by the now significant social and political movements that are critical

220 of copyright laws. Their less proprietorial attitudes towards the ownership of information and entertainment goods have given plausibility to the challenge to the legal regime that tries to keep these goods firmly in the hands of the commercial copyright industries.

That the social and political movements that are critical of copyright law have become credible and powerful is attested to within universities where open access scholarship initiatives have become mainstream and where copyleft activism among librarians and academics is common. In many universities, specific-purpose legal centres have been established to study and/or counter the ‘chilling effects’ of new copyright laws. In Australia, these include the Cyberspace Law and Policy Centre at the University of New South Wales and the Australian Research Council Centre of Excellence for Creative Industries and Innovation (CCI) where the program called ‘Legal and Regulatory Impasses and Innovations’ examines the way in which existing copyright law promotes or hinders the production, dissemination and consumption of digital content. In the US, the Stanford Center for Internet and Society at Stanford Law School and the Berkman Centre for Internet & Society at Harvard Law School are both involved with other universities and the EFF in managing the ‘Chilling Effects Clearing House’ project.

In these and other universities, law courses now offer students the opportunity to critique intellectual property laws rather than to simply learn and apply them on the basis of precedent. The values and attitudes towards copyright law, revealed by the nine students at QUT, indicate that the challenge to copyright law has moved far beyond individual theorists and online activists to serious students of copyright law.

Ultimately, the accumulated evidence from the research in this thesis points to a growing acceptance of the ‘sharing’ values and the collaborative practices of a more open digital culture. The studies undertaken with Australian students and creators and the Pirate Party, and the ever-expanding body of literature from the copyleft about problems that the law now creates for digital innovation – and possible, viable alternatives – constitute a serious challenge to the future of copyright law in its current form.

At the same time, the evidence reveals significant opposition to the copyright maximalist agenda when it is seen to enhance the private ownership of knowledge and

221 information at the expense of the public domain, of free speech, privacy and democracy. Copyleft economists continue to identify a mismatch between the current laws and the opportunities that a network society might realize if the laws were modified to promote innovation. Social theorists continue to provide information about the global benefits of a more humanitarian approach to the stewardship of cultural works.

This evidence, combined with the many demonstrations from digital activists that they will not be deterred by the law from their digital intercreativity, seems to indicate that digital culture will not suddenly, nor even gradually, be forced to conform to the current copyright laws.

*****

In Chapter 2, the principles and policies of the Pirate Party were examined on the understanding that they represent a radical departure from current copyright laws. However, having more closely evaluated the social and economic changes digital technology has introduced, the Party’s policies, while boldly stated, can be seen as closely aligned with digital culture and the broad copyleft philosophy of less proprietorial and more socially conscious forms of management of knowledge and information. The Party’s recommended reforms point to a variety of feasible, alternative ways to manage the production and distribution of digital works. Whether embodied in the legal sanctioning of a copyright-free zone or new legislation that curbs the monopoly power of the copyright maximalists, they are presaged on a reconceptualisation of society’s notions of property and culture and an acceptance of the legitimacy of a digital culture that cannot be unlearned. This means recognizing digital culture as part of a transformation of society and the economy, and accepting that it warrants changes to the law to accommodate changing social ideals and a new economic reality.

James Boyle suggests that this is what happened with environmentalism (1997). Initially reflecting the concerns of different individuals and groups about the protection of aspects of the environment, environmental analysis and activism eventually combined to produce a movement that made the environment visible and important. Environmentalism, he says, moved from being an abstraction that couldn't stand against the concrete benefits of a particular piece of development, to become an

222 abstraction with both the force of law and of popular interest behind it. Today, after fifty years of activism, environmentalism has become a powerful global movement. The greater public good has started to prevail over private interests, with nations accepting that climate change and global warming are major legal, as well as social and economic issues.

The same may well hold true for the values and practices of digital culture. Analysis and activism of the sort demonstrated by the Pirate Party and the myriad individuals and organisations that now focus on the damage being done by the privatisation of intellectual property may result in a recognition that ‘decisions are made badly when they are primarily made by and for the benefit of a few stakeholders, be they landowners or content providers’ (Boyle, 1997:xx). The analogy between environmentalism and ‘copyleftism’ is persuasive and the fifty-year time span for a movement to pervade social and economic reality indicates that the ultimate challenge of digital culture to copyright law may be imminent.

Within both the pro-copyright and the copyleft movements there is a recognition that digital technologies have fundamentally altered the fabric of the 21st century society and economy. There is recognition too of the need for new laws that are intuitively understood and respected by the majority of citizens. Ideally, new laws would provide the sort of ‘thin’ copyright protection advocated by Siva Vaidhyanathan and endorsed by the Pirate Party. They would allow creativity to flourish and creators to be rewarded, and at the same time facilitate the sharing of knowledge and information more equitably across nations.

Thus, while copyright maximalism is still prevalent, there is abundant evidence that digital culture and copyleft theory and activism are becoming mainstream. They constitute a major challenge to copyright orthodoxy and as their proponents move into positions of power and influence, it seems likely that they will support rather than resist the changes to copyright law that would relieve it of the burden it has carried since 1710 – of being a system of private ownership for the public good – and of its current burden of managing bits and bytes of digital dissemination in a networked economy.

The pervasiveness of digital technologies and their disruptive effects on the current copyright regime demonstrate the need for new laws that better reflect the social and

223 economic reality of the digital natives whose skills now form the basis of the expanding international creative economy. The emergence of a strong and collaborative digital culture has again brought to prominence the fundamental question of who should own and benefit from the intellectual property that forms our cultural heritage. Ironically, it may be the practices of the law-breaking pirates and the principles set out in the once seemingly radical policies of the Swedish Pirate Party that lead to the next stage in copyright’s history.

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Appendices

225

Appendices

APPENDIX I Print Creator Questionnaire ...... 227

APPENDIX II Digital Creator Questionnaire...... 233

APPENDIX III Queensland University of Technology Student Questionnaire...... 238

APPENDIX IV Pirate Party Declaration of Principles 3.1 (January 2008) ...... 241

APPENDIX V ‘The Bellagio Declaration’ ...... 245

APPENDIX VI Websites/URLs and Weblogs ...... 251

APPENDIX VII References Cited ...... 254

Bibliography ...... 271

Cases cited ...... 273

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APPENDIX I

Print Creator Questionnaire

(March 2007) This survey has been approved by the Ethics Committee at UWS. Participants will be de- identified in any published results. If you wish to make any further comments about copyright and your work, please do so at the end of the questionnaire.

1 Please tick the category (or categories) that best describe your main area/s of creative activity:

Fiction writing

Digital design

Blogging

Poetry

Music

Digital games

Non- fiction writing

Scholarly writing

Software development

Visual art/illustration

Other (please describe)………

227 2 Please tick the category that best describes your motivation to ‘create’:

Personal satisfaction

Job requirement

Earn a living

Professional recognition

Other (please describe) …………………………………………

3 Do you earn your living from your creative activities?

Yes No Partly

4 Do you own the copyright in any of your creative works?

Yes No

5 Are the rights in any of your works assigned to or controlled by a third party?

Yes No

6 Please indicate the amount earned from creative activities in the past 12 months:

$0-$499

$500-$999

$1000-$2999

228 $3000 - $4999

$5000 – $10,000

Over $10,000

7 Is your creative activity your main source of income?

Yes No

8 Do you consider yourself reasonably well-informed about copyright law?

Yes No

9 Do you understand what is meant by ‘fair dealing’ under the Copyright Act?

Yes No Sort of

10 Do you understand the Copyright Act provisions relating to anti- circumvention devices?

Yes No Sort of

11 Where do you get advice on copyright?

IP Lawyer

Internet

Employer

Industry association

229 Colleague

Legal centre (eg ArtsLaw Centre)

Other (please describe) ..……

12 Have you ever had your creative work ‘stolen’ or copied?

Yes No

13 If ‘Yes’, did you take legal action to enforce your rights?

Yes No

14 If you did not take legal action, why not?

Wasn’t sure of my rights

Too expensive

Not worth the effort

Didn’t know where to start

Other (Please describe)

………………………

15 If you did take legal action, was it successful?

Yes No

16 If you did take legal action, was it worthwhile?

230 Yes No

17 Please select the term that best describes the way you undertake creative work:

Collaborative

Solitary

Small team

Partnership

18 If someone mixed or mashed your work for non-commercial purposes would you:

Ignore it

Contact them

Sue them

Be flattered

231

19 Are you aware of open source software?

Yes No

20 Are you aware of the ‘creative commons’ movement?

Yes No

21 Please indicate the extent to which you agree or disagree with the following statements:

(i) On the Internet, its obscurity not piracy that is the main concern for creators Agree Disagree Partly agree

(ii) File-sharing is a cultural phenomenon, not a criminal act Agree Disagree Partly agree

(iii) Using technology to protect the works of individuals is more important than using it to develop a global public domain of accessible work Agree Disagree Partly agree

(iv) Copyright law is stifling innovation and creativity Agree Disagree Partly agree

(v) Fear of piracy makes creators reluctant to distribute their work on the Internet Agree Disagree Partly agree

Comments: Thank you for completing the Questionnaire.

232 APPENDIX II

Digital Creator Questionnaire1 (April 2007)

This survey has been approved by the Ethics Committee at UWS. Participants will be de- identified in any published results.

If you wish to make any further comments about copyright and your work, please do so at the end of the questionnaire.

1 Which of the following best describes your motivation to ‘create’?

Personal satisfaction

Job requirement

Earn a living

Professional recognition

Social networking

Other (please describe) ………………………………………………………….

2 Please tick/mark the category (or categories) that best describe your main area/s of creative activity:

Content development/entertainment

Content development/education

Content development/other (please describe)

………………………….

Interactive TV

Blogging

Web development

Music

Games

1 Questions were presented to creators as an online survey through SurveyShare software (www.surveyshare.com) under an Educational and Non-Profit licence agreement.

233 Digital production

Software

Other (please describe)………………………………………………………….

3 Please select the term that best describes the way you undertake creative work:

Collaborative

Solitary

Small team

Partnership

4 Do you earn your living from your creative activities?

Yes …. No …. Partly ….

5 Please indicate the amount earned from creative activities in the past 12 months:

$0 - $499

$500 - $999

$1000 - $2999

$3000 - $4999

$5000 - $10,000

Over 10,000

6 Are the rights in any of your works assigned to or controlled by a third party?

Yes …. No ….

7 Do you consider yourself reasonably well-informed about copyright law?

234 Yes …. No ….

8 Do you understand what is meant by ‘fair dealing’ under the Copyright Act?

Yes …. No …. Sort of ….

9 Do you understand the Copyright Act provisions relating to anti- circumvention devices?

Yes …. No …. Sort of ….

10 Where do you get advice on copyright?

IP Lawyer

Internet

Employer

Industry association

Colleague

Legal Centre (eg ArtsLaw Centre)

Other (please describe) ..…………..

11 Have you ever had your creative work ‘stolen’ or copied?

Yes …. No ….

12 If ‘Yes’, did you take legal action to enforce your rights?

Yes …. No ….

13 If you did not take legal action, why not?

Wasn’t sure of my rights ….

Too expensive ….

235 Not worth the effort ….

Didn’t know where to start ….

Other (Please describe)

14 If someone mixed or mashed your online work for non-commercial purposes would you:

Ignore it

Contact them

Sue them

Be flattered

15 Do you ever access:

Wikipedia YouTube MySpace Second Life

16 Are you familiar with:

Creative commons

Open source software

Copyleft

Digerati.com

Negativland

The Pirate Party

17 Please indicate the extent to which you agree or disagree with the following statements:

(i) On the Internet, it’s obscurity not piracy that is the main concern for creator. Agree …. Disagree …. Partly agree ….

236

(iii) File-sharing is a cultural phenomenon, not a criminal act. Agree …. Disagree …. Partly agree ….

(iii) Using technology to protect the works of individuals is more important than using it to develop a global public domain of accessible work. Agree …. Disagree …. Partly agree ….

(vi) Copyright law is stifling innovation and creativity Agree …. Disagree …. Partly agree ….

(vii) Fear of piracy makes creators reluctant to distribute their work on the Internet. Agree …. Disagree …. Partly agree ….

(viii) A copyright system should allow creators to designate their work as copyright- protected or free-to-share.

Agree …. Disagree …. Partly agree ….

Thank you for completing the Questionnaire.

Your name: …………………………………………………………………………

Comments?

237 APPENDIX III

Queensland University of Technology Student Questionnaire (February 2007)

1 Which of the following best describes your understanding of the role of copyright law? Please rank your answers from 1-4. • To protect creators’ rights • To encourage learning and education • To provide a way of paying copyright holders • To prevent piracy

2 Which of the following is the current period of protection in Australia for copyright ‘works’? • 50 years from creation • 70 years from creation • 50 years from registration • 70 years from registration • 50 years from the death of the creator • 70 years from the death of the creator

3 When does copyright protection come into effect under Australian law? • On registration of works • When works are created

4 (a) What do you understand by moral rights?

(b) Are moral rights covered under the Copyright Act?

238 YES NO

5 Are works published on the Internet covered by copyright?

YES NO

6 (a) What do you understand by ‘fair dealing’?

(b) Does fair dealing cover someone lip-synching a pop song and uploading it to the internet?

YES NO DON’T KNOW

7 Do you understand what is meant by a Technological Protection Mechanism (TPM)?

YES NO

8 Should file-sharing be a criminal offence? YES NO

9 Rank from 1-4 who you think most benefits from copyright protection: • creators (eg writers, musicians) • publishers/producers (eg book publishers, record companies,) • distributors (record shops, bookshops) • the public

10 Under what circumstances can you lawfully download music from a CD to an ipod or MP3 player? • never • once only

239 • anytime for personal use • sometimes for personal use

11 Which of the following best describes your understanding of downloading from the Internet?

(a) a ‘cultural phenomenon’ of the net generation (b) piracy (c) accessing free material (d) a form of social interaction

12 Do you have any sense that copyright law is in need of reform? YES NO END

Thank you for completing the Questionnaire. There will be a follow up in the form of a weblog DURING and AFTER your Creative Commons Clinic. *You can provide your real name or a pseudonym so that any changes in attitudes to or knowledge of copyright law can be noted. **All information will be de-identified before any form of publication of the findings.

Date: ______

*Name: ______

**Email: ______

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APPENDIX IV

Pirate Party Declaration of Principles 3.1 (January 2008)

Introduction We wish to change global legislation to facilitate the emerging information society, which is characterized by diversity and openness. We do this by requiring an increased level of respect for the citizens and their right to privacy, as well as reforms to copyright and patent law. The three core beliefs of the Pirate Party are the need for protection of citizen's rights, the will to free our culture, and the insight that patents and private monopolies are damaging to society. Ours is a control and surveillance society where practically everyone is registered and watched. It is counterproductive to a modern judicial state to impose surveillance on all its citizens, thereby treating them as suspects. Democracy pre-supposes a strong protection for citizen's rights. Copyright was created to benefit society in order to encourage acts of creation, development and spreading of cultural expressions. In order to achieve these goals, we need a balance between common demands of availability and distribution on the one hand, and the demands of the creator to be recognized and remunerated on the other. We claim that today's copyright system unbalanced. A society where cultural expressions and knowledge is free for all on equal terms benefits the whole of the society. We claim that widespread and systematic abuses of today’s copyrights are actively counter-productive to these purposes by limiting both the creation of, and access to, cultural expressions. Privatized monopolies are one of society’s worst enemies, as they lead to price-hikes and large hidden costs for citizens. Patents are officially sanctioned monopolies on ideas. Large corporations diligently race to hold patents they can use against smaller competitors to prevent them from competing on equal terms. A monopolistic goal is not to adjust prices and terms to what the market will bear, but rather use their illgotten rights as a lever to raise prices and set lopsided terms on usage and licensing. We want to limit the opportunities to create damaging and unnecessary monopoly situations. Trademarks are primarily useful as consumer protection devices. We feel trademarks Mostly work fine today, and do not suggest any changes here. Democracy, Citizens’ Rights and Personal Freedoms The citizen's right to privacy is written in the Swedish constitution. From this fundamental right springs several other basic human rights like the rights to free speech, freedom of opinion, to obtain information as well as the right to culture and personal development. All attempts by the state to curtail these rights must be questioned and met with powerful opposition. All powers, systems and methods that the state can use against its citizens must be under constant evaluation and scrutiny by elected officials. When the government uses surveillance powers against regular citizens who are not suspected of any crime, it is a fundamentally unacceptable and clear violation of the citizen's right to privacy. Each citizen must be guaranteed the right to anonymity which is inherent to our constitution and the right of the individual to control all use of his or her personal data must be strengthened. The government must respect the constitution not just in saying, but in practice. Respect for the citizens and their privacy shall mean that principles like prohibition of torture, integrity of lawmaking, due process of law, messenger immunity, and the postal secret are not negotiable. The Pirate Party shall and will act to expose and bring down an administration that the party considers doesn’t respect human rights, as expected from a western democracy. Translator’s Note: the Swedish constitution includes a hard reference to the European Convention on Human Rights, which is therefore included in the constitution. / Some countries have a name for messenger immunity akin to the term “Common Carrier Principle”. It refers to

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the fact that the messenger is never legally responsible for the contents of a carried message. The postal secrets act shall be elevated to a general communications secrets act. Just as it is prohibited to read someone else's mail today, it shall be forbidden to read or access e-mail, SMS or other forms of messages, regardless of the underlying technology or who the operator may be. Any and all exceptions from this rule must be well-motivated in each and every case. Employers shall only be allowed to access an employee's messages if this is absolutely necessary to secure the technical functionality or in direct connection with the employee's work-related duties. The government shall only be allowed access to a citizen's means of communication or put a citizen under surveillance in the case of a firm suspicion of a crime being committed by said citizen. In all other cases, the government shall assume its citizens to be innocent and leave them alone. This communications secrets act must be given a strong legal protection, as the government has repeatedly shown that it is not to be entrusted with sensitive information. We want to repeal the Data Retention Directive and strengthen the citizens’ right to privacy. The Pirate Party has no opinion on whether Sweden should or should not be a member of the European Union, but now that we are, we have a right to demand that the union is governed by democratic principles. The democratic shortage in the Union must be addressed in the long term, and the first step is to prevent it from being set in stone through a bad constitution. The proposed European Union constitution that France and the Netherlands voted against shall not be accepted, neither in its original form nor with cosmetic changes. Decision-making and governmental administration in both Sweden and the European Union shall be characterized by transparency and openness. Swedish representatives in the EU shall act to bring the Union closer to the Swedish principle of public access to records. Translator’s Note: The Swedish principle of public access to records – “offentlighetsprincipen” – means that anybody has the right to request any document from any part of the administration, without identifying themselves. While documents may be explicitly classified and thus exempted from this principle, such a secrecy stamp must be justified by strict and rarely applicable criteria, and can be appealed by the public. To illustrate the strength of this principle, minors can view video material censored by the Cinema Administration Board, as long as they show up at the board’s offices. Remember, the board is prohibited from asking for identification or similar proof of age. Foundations of democracy shall be protected, both in Sweden and in the EU. Free Our Culture When copyrights were originally created, they only regulated the right of a creator to be recognized as the creator. It has later been expanded to cover commercial copying of works as well as also limiting the natural rights of private citizens and non-profit organizations. We say that this shift of balance has prompted an unacceptable development for all of society. Economic and technological developments have pushed copyright laws way out of balance and instead it infers unjust advantages for a few large market players at the expense of consumers, creators and society at large. Millions of classical songs, movies and books are held hostages in the vaults of huge media corps, not wanted enough by their focus groups to re-publish but potentially too profitable to release. We want to free our cultural heritage and make them accessible to all, before time withers away the celluloid of the old movie reels. Immaterial laws are a way to legislate material properties for immaterial values. Ideas, knowledge and information are by nature non-exclusive and their common value lies in their inherent ability to be shared and spread. We say that copyrights need to be restored to their origins. Laws must be altered to regulate only commercial use and copying of protected works. To share copies, or otherwise spread or use works for non-profit uses, must never be illegal since such fair use benefits all of society. We want to reform commercial copyrights. The basic notion of copyrights was always to find a

242

fair balance between conflicting commercial interests. Today this balance is lost and needs to be regained. We suggest a reduction of commercial copyright protection, i.e. the monopoly to create copies of a work for commercial purposes, to five years from the publication of the work. The rights to make derivative works shall be adjusted so that the basic rule will be freedom for all to make them immediately. Any and all exceptions from this rule, for example, translations of books, or the usage of protected musical scores in movies, shall be explicitly enumerated in the statutes. We want to create a fair and balanced copyright. All non-commercial gathering, use, processing and distribution of culture shall be explicitly encouraged. Technologies limiting the consumer's legal rights to copy and use information or culture, so-called DRM, should be banned. In cases where this leads to obvious disadvantages for the consumer, any product containing DRM shall display clear warnings to inform consumers of this fact. Contractual agreements implemented to prevent such legal distribution of information shall be declared null and void. Non-commercial distribution of published culture, information or knowledge – with the clear exception of personal data – must not be limited or punished. As a logical conclusion of this, we want to abolish the blank media tax. We want to create a cultural commons. Patents and Private Monopolies Harm Society Patents have many damaging effects. Pharmaceutical patents are responsible for human deaths in diseases they could have afforded medication for, research priorities are skewed, and unnecessarily high, and rising, cost of medicines in richer parts of the world. Patents on life and genes, like patented crops, lead to unreasonable and harmful consequences. Software patents retard technological development and constitute a serious threat against Swedish as well as European small- and medium-sized businesses in the IT sector. Patents are said to encourage innovation by protecting inventors and investors in new inventions and manufacturing methods. In reality, patents are increasingly used by large corporations to hinder smaller companies from competing on equal terms. Instead of encouraging innovation, patents are being used as "mine fields" when waging war against others, often patents the owner has no plans on developing further themselves. We believe patents have become obsolete and that they actively stifle innovation and the creation of new knowledge. Besides, just by looking at all business areas that is not patentable it is clear that patents simply are not needed - the market forces derived from being first-to-market is quite sufficient for fostering innovation. Inventors should compete fairly with natural advantages like innovative designs, customer benefits, pricing and quality, instead of with a state-awarded monopoly on knowledge. Not having to pay small armies of patent lawyers will free resources that can be used for creating real innovation and improve products at a faster rate, benefiting us all in the end. We want to abolish patents gradually. Apart from abusing patents, large corporations attempt to create monopolies by other means. By keeping information on things like file formats and interfaces secret, they try to create vendor lock-in, thereby limiting competition with a blatant disregard for the value of a free and fair market. This practice leads directly to higher prices and a lower rate of innovation. Whenever the publicly funded sector procures information systems or produces information itself, it must actively counteract the formation or continuation of these private monopolies on information, knowledge, ideas, or concepts. Initiatives like Open Access, with the purpose of making results of research freely available, shall be encouraged and supported. Private monopolies shall be combated. The public sector shall archive documents and make them publicly available in open formats. It shall be possible to communicate with the government without being tied to a certain private

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supplier of software. The use of open source in the public sector, including schools, shall be stimulated. Open formats and open source shall be encouraged. Closing words We wish to guard citizen's rights, their right to privacy and basic human rights. When the government routinely put its citizens under surveillance, it invariably leads to abuse of powers, lack of freedoms and injustices. We demand a correction of these injustices. We demand justice, freedom and democracy for the citizens. Today's copyright and patent laws lead to harmful monopolies, the loss of important democratic values, hinders the creation of culture and knowledge, and prevents them from reaching the citizens. We demand the abolishment of patents and fair and balanced laws of copyrights, rooted in the will of the people, to enrich people's lives, enable a healthy business climate, create a knowledge and cultural commons, and thereby benefiting the development of society as a whole. Our work with this is now focused on parliamentary means and therefore we seek a mandate from the people to represent them in these issues. The Pirate Party does not strive to be part of an administration. Our goal is to use a tie breaker position in parliament as leverage, and support an administration that drives the issues in our platform in a satisfactory manner. When they do, we will support that administration on other issues where we choose to not hold opinions of our own. To unite as a strong movement, we have chosen to not take a stand in any political issues not connected with the principles declared herein. We stand united around our protection of the right to privacy, our will to reform copyrights, and the need to abolish patents.

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APPENDIX V

‘The Bellagio Declaration’2 Signatories

Upendra Baxi (University of Delhi) Jay David Bolter (Georgia Institute of Technology) James D. A. Boyle (Washington College of Law, American University) Rosemary Coombe (University of Toronto School of Law) Margreta de Grazia (University of Pennsylvania) Peter Jaszi (Washington College of Law, American University) Smadar Lavie (University of California, Davis) Mary Layoun (University of Wisconsin, Madison) Andrea Lunsford (Ohio State University) Nbila Mezghani (University of Tunis) J. Hillis Miller (University of California, Irvine) Patrick J. O'Keefe (University of Sydney) Albrecht Gtz von Olenhusen (Freiburg i. Br., Germany) Heiki Pisuke (University of Tartu, Estonia) Mark Rose (University of California, Santa Barbara) Pamela Samuelson (University of Pittsburgh School of Law) Akin Thomas (Ibadan, Nigeria) Martha Woodmansee (Case Western Reserve University) Charles Zerner (Rainforest Alliance, New York) Zheng Chengsi (Chinese Academy of Social Sciences, Beijing)

Statement of the Bellagio Conference

Cultural Agency/Cultural Authority: Politics and Poetics of Intellectual Property in the Post- Colonial Era

March 11, 1993

WE, the participants at the Bellagio Conference on intellectual property, come from many nations, professions and disciplines. We are lawyers and literary critics, computer scientists and publishers, teachers and writers, environmentalists and scholars of cultural heritage.

SHARING A COMMON CONCERN about the effects of the international regime of intellectual property law on our communities, on scientific progress and international development, on our environment, on the culture of indigenous peoples. In particular,

APPLAUDING the increasing attention by the world community to such previously ignored issues as preservation of the environment, of cultural heritage, and biodiversity. But, Convinced that the role of intellectual property in these areas has been neglected for too long, we therefore convened a conference of academics, activists and practitioners diverse in geographical and cultural background as well as professional area of interest.

2 Shamans, Software and Spleens, Appendix B, Harvard University Press (1996), pp 192-200

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DISCOVERING that many of the different concerns faced in each of these diverse areas could be traced back to the same oversights and injustices in the current international intellectual property system, we hereby

DECLARE the following:

FIRST: Intellectual property laws have profound effects on issues as disparate as scientific and artistic progress, biodiversity, access to information, and the cultures of indigenous and tribal peoples. Yet all too often those laws are constructed without taking such effects into account, constructed around a paradigm that is selectively blind to the scientific and artistic contributions of many of the world's cultures and constructed in fora where those who will be most directly affected have no representation.

SECOND: Many of these problems are built into the basic structure and assumptions of intellectual property. Contemporary intellectual property law is constructed around a notion of the author as an individual, solitary and original creator, and it is for this figure that its protections are reserved. Those who do not fit this model--custodians of tribal culture and medical knowledge, collectives practicing traditional artistic and musical forms, or peasant cultivators of valuable seed varieties, for example--are denied intellectual property protection.

THIRD: A system based on such premises has real negative consequences. Increasingly, traditional knowledge, folklore, genetic material and native medical knowledge flow out of their countries of origin unprotected by intellectual property, while works from developed countries flow in, well protected by international intellectual property agreements, backed by the threat of trade sanctions.

FOURTH: In general, systems built around the author paradigm tend to obscure or undervalue the importance of "the public domain," the intellectual and cultural commons from which future works will be constructed. Each intellectual property right, in effect, fences off some portion of the public domain, making it unavailable to future creators. In striking respects, the current situation raises the same concerns raised twenty years ago by the impending privatization of the deep seabed. The aggressive expansion of intellectual property rights has the potential to inhibit development and future creation by fencing off "the commons," and yet--in striking contrast to the reaction over the deep seabed--the international community seems unaware of the fact.

FIFTH: We deplore these tendencies, deplore them as not merely unjust but unwise, and entreat the international community to reconsider the assumptions on which and the procedures by which the international intellectual property regime is shaped.

IN GENERAL, we favor increased recognition and protection of the public domain. We call on the international community to expand the public domain through expansive application of concepts of "fair use," compulsory licensing, and narrower initial coverage of property rights in the first place. But since existing author-focused regimes are blind to the interests of non- authorial producers as well as to the importance of the commons, the main exception to this expansion of the public domain should be in favor of those who have been excluded by the authorial biases of current law.

SPECIFICALLY, we advocate consideration of special regimes, possibly in the form of "neighboring" or "related" rights regimes, for the following areas:

• Protection of folkloric works. • Protection of works of cultural heritage. • Protection of the biological and ecological "know-how" of traditional peoples. IN ADDITION, we support systematic reconsideration of the basis on which new kinds of works related to digital technology, such as computer programs and electronic data bases, are protected

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under national and international intellectual property regimes. We recognize the economic importance of works falling into these categories, and the significant investments made in their production. Nevertheless, given the importance of the various concerns raised by any such a regime--concerns about public access, international development and technological innovation-- we believe that choices about how and how much to protect databases should be made with a view to the specific policy objectives such protection is designed to achieve, rather than as a reflexive response to their categorization as "works of authorship."

ON A SYSTEMIC LEVEL, we call upon states and non-governmental organizations to move towards democratization of the fora in which the international intellectual property regime is debated and decided.

IN CONCLUSION, we declare that in an era in which information is among the most precious of all resources, intellectual property rights cannot be framed by the few to be applied to the many. They cannot be framed on assumptions that disproportionately exclude the contributions of important parts of the world community. They can no longer be constructed without reference to their ecological, cultural and scientific effects. We must reimagine the international regime of intellectual property. It is to that task this Declaration calls its readers.

Discussion Contemporary intellectual property law is constructed around a notion of the author as an individual, solitary and original creator, and it is for this figure that its protections are reserved. [1] The "author" in the modern sense is the sole creator of unique works of art, the originality of which warrants their protection under laws of intellectual property--particularly those of "copyright" and "authors' rights." The notion, however, is neither natural nor inevitable. Rather, it arose at a specific time and place--eighteenth-century Europe--in connection with a particular information technology--print. Nevertheless, it remains the dominant paradigm in our global, multicultural, post-colonial electronic age, a paradigm that stretches beyond copyright to influence all types of intellectual property rights. We must recognize that there is a politics to "authorship;" as presently understood, it is a gate through which one must pass in order to be given property rights, a gate that shuts out a disproportionate number of non-Western, traditional, collaborative, or folkloric modes of production.

Although intellectual property rules are defended as economically necessary, kneejerk reliance on "authorship" may in fact destructively undervalue important contributions to art, science, and culture. Examples are legion. Drugs drawn from the rainforest or from indigenous pharmacopeias do not economically support the protection of either. Traditional patterns and dances can be taken without permission or recompense, perhaps diminishing the chance that the culture that originated them will survive. Exclusively authorship-focused systems also run the risk of cherishing the ownership of ideas over their circulation, the purses of the potential audience over their minds. [2] There is no guarantee that the current system of intellectual property maximizes free speech and informed democratic debate, and much evidence that it does not.

In general, systems built around the author paradigm tend to obscure the importance of "the public domain," the intellectual and cultural commons from which future works will be constructed. The assumption of these systems is that one must reward creators in order to ensure new production. Yet the "reward" has its costs. Each intellectual property right, in effect, fences off some portion of the public domain, making it unavailable to future creators. If one is concerned about promoting future production of books, ideas, inventions, and works of art, then one must be just as careful in one's protection of a vigorous and diverse public domain, a "commons" of scientific, literary, and artistic raw material, as one is in one's protection of the author's rights and incentives. Recently, there has been a dangerous international tendency to suppress the former concern and to concentrate only on the latter.

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The process has taken place with remarkably little recognition or outcry, in marked contrast to similar situations in the past. During the late sixties and early seventies, the members of the General Assembly of the United Nations showed great prescience in enunciating the concept of the "common heritage of mankind." They declared that the resources of outer space and the deep seabed must be available to all, that they should not be entirely consumed by the first nations to have the technological capacity to do so. In striking respects, the current situation with respect to intellectual property rights is similar. Certainly the same distributional and developmental issues are raised. For example, under the current regime, corporations from nations with the most advanced technology may manage to secure patents on the majority of rainforest-derived drugs before an indigenous drug industry develops. The aggressive expansion of intellectual property rights also has the potential to inhibit future creation by fencing off "the commons." Despite these similarities, the international community has been comparatively silent on the issue. One reason for this silence may be the perception that intellectual property rights are not a "zero-sum game," that, unlike rights to manganese nodules or oil, they are potentially of infinite extent and thus that future producers are always left enough raw material out of which to create their own works. But this perception is more a by-product of faith in the author vision than the result of a careful analysis of literary, artistic, and scientific production. Patents given on commonly used lines of computer code may impede the production of future programs. Extensive copyright and publicity rights may allow public figures to control access to vital information about themselves. Patents on new "landraces" (i.e., seed types) based on indigenous varieties may actually inhibit the maintenance of genetic diversity and local cross-breeding. The blandishments of the international information industries notwithstanding, more intellectual property rights may actually mean less innovation, less heterogeneity in culture and environment and a less informed world of public debate.

The international community must move towards a just world order of intellectual property rights, and in what follows we appeal to national governments and international organizations to consider specific measures toward that objective. At the same time, we acknowledge our local responsibilities, and those of the constituencies we represent: to resist, where necessary, unjust extensions of intellectual property regimes.

Our analysis indicates three overlapping areas of neglect in an overly author-centered vision of intellectual property: neglect of unacknowledged sources and non-authorial modes of scientific and cultural production, neglect of the interests of the "audience" (readers, consumers and other end-users), and neglect of the importance of conserving the public domain for the benefit of innovators and consumers alike. Measures designed to counteract these tendencies do not fall neatly into a simple choice to have "more" or "fewer" intellectual property rights. Indeed, one of our criticisms of contemporary discourse about intellectual property is its simplistic binary format. We favor a move away from the author vision in two directions; first towards recognition of a limited number of new protections for cultural heritage, folkloric productions, and biological "know-how." Second, and in general, we favor an increased recognition and protection of the public domain by means of expansive "fair use protections," compulsory licensing, and narrower initial coverage of property rights in the first place.

Where the first point is concerned, we recognize the importance of incentives for cultural conservation, in the form of grants of exclusive rights. Indeed, such grants may be essential to provide recognition to the contributions of those groups and individuals who the present system tends to exclude. But we do not propose to address this problem of exclusion merely by expanding the "authorship" construct, with all its legal and ideological associations. We advocate consideration of alternative regimes—perhaps based on expansion of the system of "neighboring" or "related" rights. By this terminology we refer to legal regimes like those which, in some countries, protect the interests of performers, of broadcasters, and sound recording producers. These laws, although they participate in some of the assumptions and contain some of the features of traditional copyright or "authors' rights" laws, are not justified on the grounds that they extend protection to "works of authorship." Rather, they exist to recognize the special economic and/or

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cultural contributions of groups whose activities fall outside the traditional definition of "authorship."

Specifically, we advocate consideration of new regimes, possibly in the form of "neighboring" or "related" rights, in the following areas:

• Protection of folkloric works. • Protection of works of cultural heritage. • Protection of the biological and ecological "know-how" of traditional peoples.

In each case, this consideration should entail inquiry into the appropriate individual, group, or state entity in whom intellectual property rights should be vested, into the duration and intensity of those rights, and into the means by which reasonable public access to the categories of works in question would be assured, including such devices as "fair use" privileges and systems of compulsory licensing.

The same considerations should be borne in mind as the international community enters into a systematic reconsideration of the basis on which new kinds of works related to digital technology, such as computer programs and electronic databases, are protected under national and international intellectual property regimes. We recognize the economic importance of works falling into these categories, and the significant investments made in their production. Nevertheless, given the importance of the various concerns raised by such a regime--concerns about public access, international development and technological innovation--we believe that choices about how and how much to protect databases should be made with a view to the specific policy objectives such protection is designed to achieve, rather than as a reflexive response to their categorization as "works of authorship."

Moreover, whether intellectual property protection takes the form of traditional copyright or authors' rights regimes, or of new ones in the nature of "neighboring rights," it is critical that its elaboration be undertaken with a commitment to the preservation of the "public domain" as a cultural and intellectual commons from which all people, from all nations, are free to draw. In an effort to redress unfairness in the existing global scheme of intellectual property, it is important that we do not err in the direction of uncritically and unqualifiedly increasing the level of protection available for all forms of cultural production.

We are acutely aware of the importance of access to information for cultural, economic and educational development, and we support new measures on the part of international organizations to promote access to new information technologies in developing countries. At the same time, we recognize that it is critical to support more traditional forms of information distribution, such as book publishing, in those countries, through initiatives to make capital available and to encourage the licensing of copyrights on reasonable terms.

Likewise, the international intellectual property community can and should do more to recognize the special situation of the countries of Eastern Europe and the former Soviet Union, by extending to them for a limited term (under multilateral and bilateral agreements) a special regime identical or similar to that applicable to developing countries under the Appendix provisions of the 1971 Act of the Berne Convention.

In conclusion, we would suggest that--at least historically--laws of intellectual property, as well as laws of neighboring and related rights, have been designed by a few individuals and applied to many. The goal of a just world order of intellectual property may be best advanced by addressing the process by which intellectual property laws are made and revised, to provide more representation for interests other than those of governments and information industries--through the inclusion of more non-governmental organizations and community groups in the dialogue. For a long time, intellectual property has escaped attention in international discussions of justice,

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self-determination, economic development and human rights, reflecting a shared perception of the marginality of intellectual property issues which has ceased to be accurate--if it ever was. The advent of the information society, the collaborative networks typical of production on the electronic frontier, the increasing importance of intellectual property rights to corporate balance- sheets and national balances of payment, the global circulation and commodification of culture-- all of these events conspire to thrust upon us the need to imagine and simultaneously to build a world intellectual property system that is both just and wise.

Notes

1. There are different ways to explain the nature and protection of authors' rights, which are based on various historical and cultural differences. We honor those differences, and we attempt to find common language to express our concerns and aspirations for the international intellectual property system.

2. The way of thinking which this exclusive idea of "authorship" supports also has consequences beyond the realm of law. To a greater or lesser extent, we tend to enact this exclusive understanding of the "author" in our practices: for example, as scholars, scientists, teachers, writers and business-people. That effect however, is beyond the immediate scope of this declaration.

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APPENDIX VI

Websites/URLs and Weblogs

Alexa: http://www.alexa.com Amazon: http://www.amazon.com Australian Bureau of Statistics: http://www.abs.gov.au Australian Digital Alliance: http://www.digital.org.au Australian Library and Information Association (ALIA): http://www.alia.org.au Australian Research Council Centre of Excellence for Creative Industries and Innovation (CCI): http://www.cci.edu.au Big Champagne: http://www.bigchampagne.com Boing Boing http://boingboing.net Boycott–RIAA: http://www.boycott-riaa.com Canadian Music Creators Coalition: http://www.musiccreators.ca Carnegie Melon University http://www.cmu.edu Centre for the Public Domain: http://www.centerforthepublicdomain.org Chilling Effects Clearing House: http://www.chillingeffects.org Consumer Project on Technology: http://www.cptech.org Create Change: http://www.createchange.org Creative Commons: http://www.creativecommons.org DefectiveByDesign: http://www.defectivebydesign.org Digital Future Coalition (DFC): http://www.dfc.org Digital Music News http://digitalmusicnews.com Directory of open access journals (DOAJ): http://www.doaj.org DIRECTV: http://directv.com Doctorow, Cory http://www.craphound.com DRM Watch: http://www.drm.com Duke Conference on The Public Domain http:// www.law.duke.edu/cspd Dynamic: http://dynamic.abc.go.com eBay: http://www.ebay.com Electronic Frontiers Australia: http://www.efa.org.au

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Electronic Frontier Foundation: http://www.eff.org Fibreculture: http://www.fibreculture.org Flickr: http://www.flickr.com Forbes magazine http://www.forbes.com Future of Music Coalition http://www.futureofmusic.org Geist, Michael: http://www.michaelgeist.ca Google: http://www.google.com Google booksearch: http://www.books.google.com Illegal Art: http://www.illegal-art.org Internet Industry Association: http://www.iia.net.au IP Justice: http://www.ipjustice.com Linux-watch: http://www.linux-watch.com MacArthur Foundation: http://www.macfound.org M C Lars: http://www.mclars.com MPAA: http://www.mpaa.org MP3.com: http://www.mp3.com MySpace: http://www.myspace.com Negativland: http://www.negativland.com Nine Inch Nails: http://www.nin.com Pew Internet & American Life http://www.pewinternet.org Pirate Party: http://www.piratpartiet.se PP International: http://www.pp-international.net Privacy Rights: http://www.privacyrights.org Public Knowledge http://www.publicknowledge.org RELAKKS: https://www.relakks.com RSA: http://www.thersa.org Salon: http://www.salon.com SETI@home http://setiathome.berkeley.edu Steal this Film: http://www.stealthisfilm.com Steven Hilton: http://www.mshiltonj.com SurveyShare: http:www.surveyshare.com Torrentfreak: http://torrentfreak.com UNCTAD: http://www.unctad.org Weatherall’s law http://www.weatherall.blogspot.com Wikileaks: http://www.wikileaks.org Wikipedia: http://www.wikipedia.org Wired: http://www.wired.com

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Yahoo Finance: http://www.finance.yahoo.com YouTube: http://www.youtube.com ZDNet: http://www.zdnet.com.au

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APPENDIX VII

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