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Reconceptualising Copyright: Adapting the Rules to Respect Freedom of Expression in the Digital Age

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Reconceptualising Copyright: Adapting the Rules to Respect Freedom of Expression in the Digital Age Reconceptualising Copyright: Adapting the Rules to Respect Freedom of Expression in the Digital Age Centre for Law and Democracy (CLD) 39 Chartwell Lane Halifax, N.S. B3M 3S7 Canada Tel: +1 902 431-3688 Fax: +1 902 431-3689 Email: [email protected] www.law-democracy.org Acknowledgements The Report was written by Michael Karanicolas, Legal Officer, Centre for Law and Democracy with support and editing by Toby Mendel, Executive Director, Centre for Law and Democracy, who also provided significant inputs into the part of the Report on copyright and the three part test (i.e. Part II), and the recommendations. Thanks are also due to Portia Karegeya, Lauren Leahy, Sean McGarry, Patrick O’Neill, Allison Pressé, Katie Sammon, Nicole Slaunwhite and Jason Smythe for additional research. The production of this report was made possible thanks to support from the Sigrid Rausing Trust. This support does not necessarily imply that the Sigrid Rausing Trust endorses the positions taken in this report, and the Centre for Law and Democracy is responsible for the presentation of the facts and opinions contained in this report. © CLD, Halifax ISBN - 978-0-9878751-7-4 This work is licensed under the Creative Commons Attribution-NonCommercial- ShareAlike 3.0 Unported Licence. You are free to copy, distribute and display this work and to make derivative works, provided you: 1. Give credit to Centre for Law and Democracy; 2. Do not use this work for commercial purposes; 3. Distribute any works derived from this publication under a licence identical to this one. To view a copy of this license, visit: http://creativecommons.org/licenses/by-nc-sa/3.0/ or send a letter to Creative Commons, 444 Castro Street, Suite 900, Mountain View, California, 94041, USA Table of Contents Introduction ............................................................................................................... 1 Part I: Recognising a Broken System ......................................................................... 2 I.1 Mapping the landscape: copyright ............................................................................................................. 2 I.2 Mapping the landscape: freedom of expression .................................................................................... 6 I.3 A pirate planet ................................................................................................................................................... 9 I.4 Economic issues underlying piracy .......................................................................................................... 11 A. The Australian experience ................................................................................................................................ 11 B. The developing world ......................................................................................................................................... 12 I.5 Enforcement has been draconian yet ineffective ............................................................................... 14 A. Attacking piracy networks ............................................................................................................................... 14 B. Attacking individual pirates ............................................................................................................................ 15 C. Attacking the Internet itself ............................................................................................................................. 16 D. Attempts at voluntary measures ................................................................................................................... 17 I.6 Copyright law is poorly suited to the digital age ................................................................................. 18 A. The music business: mashups and sampling ............................................................................................ 18 B. Impact in other media ........................................................................................................................................ 21 C. Piracy in daily life ................................................................................................................................................. 23 Part II: Copyright and the Three-part Test ............................................................... 24 II.1 Problems with the test in the context of copyright .......................................................................... 24 II.2 Applying the three-part test: provided by law ................................................................................... 26 II.3 Pursuing a legitimate aim .......................................................................................................................... 27 II.4 Necessity ......................................................................................................................................................... 30 Part III: Reconceptualising Copyright ...................................................................... 32 III.1 Scope of applicability of copyright ........................................................................................................ 32 A. The framework ....................................................................................................................................................... 32 B. In support of broad applicability ................................................................................................................... 33 C. In support of narrow applicability ................................................................................................................ 33 D. Finding the right formula ................................................................................................................................. 34 III.2 Copyright term length ............................................................................................................................... 37 A. The argument for open access ........................................................................................................................ 38 B. The incentivisation question............................................................................................................................ 39 C. Finding the right formula.................................................................................................................................. 41 III.3 Derivative works .......................................................................................................................................... 43 A. Global approaches to derivative works ...................................................................................................... 43 B. Borrowing and adapting in the creative process................................................................................... 45 C. Issues in the current approach ....................................................................................................................... 46 D. Finding the right formula ................................................................................................................................. 47 III.4 Sanctions ........................................................................................................................................................ 48 A. Healthy business outlooks ................................................................................................................................. 49 B. Alternative revenue streams............................................................................................................................ 51 C. Finding the right formula.................................................................................................................................. 53 Recommendations .................................................................................................... 53 Conclusion ................................................................................................................ 55 Introduction In February 1930, ten years into the United States’ experiment with alcohol prohibition, police in Washington carried out a raid in the basement of the Senate Office Building. The man they arrested, George L. Cassiday, had set up a liquor store among the Senate offices, and established a brisk trade selling illegal alcohol to politicians, with a regular client list that reportedly included two-thirds of United States lawmakers.1 The arrest confirmed what most in the United States already knew: that laws prohibiting alcohol were utterly divorced from reality. But while prohibition is recognised today as a byword for disastrous government policy, there is a legal framework that remains in place which is equally unenforceable, equally divorced from reality and equally counterproductive to its intended aim. That framework is the international system of copyright, which is probably the most commonly ignored legal construct in human history. Whenever a law is being widely flouted, it should naturally lead to questions over its wisdom, efficacy and appropriateness, and indeed copyright and copyright enforcement are today among the most controversial legal issues. Proposed crackdowns, such as the Anti-Counterfeiting Trade Agreement (ACTA) in Europe and the Stop Online Piracy Act (SOPA) and the Protect IP Act (PIPA) in
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