1. Collisions in the Digital Paradigm:
Information Rights and Copy Rights
Australian Digital Alliance Forum
Canberra
1 March 2013

2. The Argument
• Paradigmatic change challenges our
assumptions about and expectations of
information.

3. • The digital paradigm is so revolutionary that it
undermines some of the values and
assumptions that underlie traditional copyright
thinking.

4. • We need a new model for copyright that
reflects the new paradigm

5. = Contentious
• Content owners -
don’t think they
have enough
protection
• Consumers -
think that content
owners have too
much protection.

6. A truth about copyright
• Copyright is the child of the printing press

7. Myths About Copyright
• That it is a property right
• No – it is about control of technology
• That it originated as part of the Stationers
Company licensing regime
• No – for the following reasons

8. The Stationers Company
• Were originally a craft
Guild involved in making
and selling books
• Interested in protecting
their craft for the benefit
of members
• Exclude from the pursuit
of the craft those who
were not

9. Incorporation 1557
• Enhanced control of the industry.
• By licensing printing of books to members of
the Company.
• Powers of search and seizure ensured that
non-members could be controlled.
• Nothing to do with copyright.
• Everything to do with protecting a monopoly on
a new technology

10. Patents
• Issued authorising
exclusive rights to
print certain titles
• Were often
infringed
• Granted as part of
the Royal
prerogative
• Enforced in the
prerogative Court
of Star Chamber

11. Star Chamber Decrees 1587 and 1634
• Nothing to do with author’s rights
• Everything to do with the protection of the
publisher
• Decrees were not about censorship (the
received wisdom)
• But about industry control and limiting
participation in the industry

12. An early view of “copyright”
• Much material was still in
manuscript
• Printing was seen as an answer
to those “ungentle hoarders up
of such treasure”
• Publication was beneficial to
“the studious of English
eloquence”
Richard Totell. “To the Reader”
Songes and sonettes, written by
the
Right Honorable Lorde Henry
Howard late Earl of Surrey, and
others akaTottel’s Miscellany
1557
• Printing was associated with
generosity - the act of sharing
what was hoarded

13. The Restoration
• The Licensing Act 1662
• Focus upon both censorship and industry
control
• Stationers in charge of enforcement
• 1694 – Licensing Act lapsed
• 15 years of “press freedom” until the Statute of
Anne

14. The Statute of Anne
• Controlled printed works
• Said nothing about manuscript works
• Manuscripts – had to be copied to circulate
• Statute reflects
– a recognition of the values of two cultures and
– the qualities of the printing press that differentiated
it from the manuscript culture

15. • So the copyright statute was about control of a
technology.
• And that is what copyright has been about ever
since.

16. The Interests of the Publishers
• Miller v Taylor – extend the reach of copyright
• Donaldson v Beckett – the Statute rules
• Were there any author plaintiffs present?

17. Technological Changes
• Photocopier
• Digital technologies
• Shifted the power balance from monolithic
publishing organisations to individuals
• Copyright owners response – shut down or
control the technology – just as the Stationers
did.

18. The Answer to the Machine..
• Technology contains the answer
• The development of para-copyright
• Copyright by contract
• Miller v Taylor realised

19. First we shape our tools...
• And then our tools shape us
• Information expectations
• Digital Natives have a different world view
• Witness the rise of social media

20. • Digital Natives find copyright law interferes
with their global view
• Regionalisation of content obstructs
“information now”

22. Ignoring the global market
• Digital natives find it difficult to understand why it
is that they may be willing to pay for a product that
copyright owners won’t let them purchase or
access.
• I can’t subscribe to Hulu because I live in the
wrong part of the world.
• I can’t download content because I live in the
wrong part of the world.
• Yet the internet and the globalisation of content
and e-commerce have made the commercial
world a world without boundaries.

23. The Solution
• Digital Natives are prepared to pay
• The copyright owner won’t take the money
• So let’s file share........
• Digital Natives are like Jim Morrison

24. We want the world
and
we
want it
NOW

25. Technologies Change Us
• Media work on two levels

26. First Level
• A medium is a technology that enables
communication and the tools that we have to
access media content are the associated
delivery technologies.

27. Second Level
• A medium has an associated set of protocols
or social and cultural practices including the
values associated with information - that have
grown up around the technology.

28. • Delivery systems are just machines but the
second level generates and dictates behaviour.

29. • When we go beneath the delivery system and look at
the qualities or the properties of a new information
technology, we are considering
what shapes
and forms
the basis for the changes in behaviour
and in social and cultural practices.

30. • The qualities of a paradigmatically different
information technology fundamentally change
the way that we approach and deal with
information.

31. Hence
The medium is the
message

32. Qualities of Digital Technologies
• Persistence,
• Continuing change or the disruptive element,
• Dynamic information
• Dissociative enablement,
• Permissionless innovation,
• Availability,
• Participation
• Searchability
• Retrievability.

33. The Fate of Copyright

34. Does a system of rules based upon and derived
from the print paradigm have any relevance in
the digital paradigm?

35. • The law loses credibility if it does not accord
with the underlying values of a community –
the consent of the governed.
• To maintain a system of rules that run counter
to community values is oppression.

36. Let’s Forget the Technology
• Find another principled basis for copyright
protection.
• Copyright and expression are inextricably
entwined

37. Balance Interests Based on Expression
• Article 19 – International Covenant on Civil and
Political Rights
• Protects the right to receive and impart
information
• Explicitly protects the media of expression and
information and was intended to include after a
rising technologies.

38. Developing a Rights Based Approach
• Frank La Rue – whether or not internet access is a
human right qualifying for protection under Article 19
• A German court ruled that people have the right to
claim compensation from service providers if their
Internet access is disrupted, because the Internet is an
"essential" part of life.
• Ashby Donald v France - a conviction based on
copyright law for illegally reproducing or publicly
communicating copyright protected material can be
regarded as an interference with the right of freedom
of expression and information under Article 10 of the
European Convention.

39. How It Might Look
• 1. Copyright should not be seen as a property tight –
either actual or inchoate
• 2. A copyright owner’s rights should not be absolute

40. • 3. Copyright should be seen as an exception to
the wider rights of freedom to receive and
impart information guaranteed by Art. 19
ICCPR – given copyright does not accrue until
expression (according to current copyright
theory) it must be subject to the supremacy of
Art 19.
• 4. Interference with Art 19 rights requires
justification by the copyright owner.

41. • 5. Once interference with the Art 19 right is justified,
any restrictions to the general right and any
advantages that accrue for the benefit of the
copyright owner may be permitted to the extent that
they are:
– a) necessary to meet the copyright owners
interests and justification
– b) proportionate in terms of the extent of the
interference
• 6. Concepts such as fair use, protection term,
remedies (and their extent) fall within the tests of
necessity and proportionality rather than exceptions
to a copyright owner’s right.

42. Examples
• Access controls that have no copying implications
would not be justifiable as an interference.
• Copying that is necessary for a technology to
operate could not be considered justifiable as an
interference.
• Format shifting (of any medium) could not be
justified as an interference in that a royalty had
been paid at point of sale where the item has
been legitimately acquired.

43. • This new framework may be considered
against a backdrop of the right to receive and
impart information and a truly balanced
approach to information and expression that
recognises that ideas expressed are building
blocks for new ideas.

44. • Underpinning this must be a recognition on the
part of content owners that the properties of
new technologies dictate our responses, our
behaviours, our values and our ways of
thinking.

45. • These should not be seen as a threat but an
opportunity.
• Copyright cannot be a one-way street with
traffic heading only in the direction dictated by
content owners.