Do No Harm: Revisiting Intellectual Property Rights In The Digital World

The system of intellectual property has developed into a huge machine, largely out of control, and ever more aggressive as it fails to stop the floodwater of information from breaking through the barriers it tries to erect

Aigrain, P 2005 “Positive Intellectual Rights and Information Exchanges” in R A Ghosh (ed), CODE: collaborative ownership and the digital economy, pp 287-315. Cambridge, Mass: MIT Press at page 289.

For many who create, these are fighting words.

Undoubtedly, by empowering the user to create the new digital environment has placed the subject of the ambit of copyright protection squarely in the spotlight. Governments around the globe are grappling with finding the right balance between copyright protection and encouraging innovation that builds on previous works. In this country, the Australian Reform Law Commission is currently finalising its review, entitled Copyright and the Digital Economy, into the effectiveness and reform of Australia’s copyright laws in the Internet age. The ALRC released its discussion paper in June 2013 after receiving more than 300 submissions, including from Google and eBay to its issues paper and the same number of submissions again to its discussion paper.

The Australian review follows on the heels of similar reviews held in the United Kingdom, with the main findings summarised in the Hargreaves Report released in 2011, Ireland in 2012 and Canada. In April 2013, the US Government announced it was also reviewing US copyright laws in this press release.

The importance of this inquiry is highlighted by the following statement from Professor Lawrence Lessig, in his article In Defense of Piracy:

The return of the “remix culture” could drive extraordinary economic growth, if encouraged and properly balanced. It could return our culture to a practice that has marked every culture in human history—save a few in the developed world for much of the 20th century – where many create as well as consume.

Or if you prefer the visual, you can see Professor Lessig’s TED talk on this topic here.

At the time of writing this post, Canada leads the way in innovating its approach to copyright laws particularly in the context of user-generated content (UGC). After conducting a review into copyright law in that country, Canada enacted the Copyright Modernization Act which came into force in November 2012. It inserted, what is now widely known as the ‘YouTube clause”, permitting the creation and publication of mashup videos and other UGC without infringing copyright in the works used. The clause, number 29-21, provides that it is not an infringement of copyright for an individual to use an existing work which has been published or made available to the public in the creation of a new work or to disseminate it if:

  • the use is done solely for non-commercial purposes
  • the source of the original is mentioned in the new work if reasonable in the circumstances
  • the individual has reason to believe that the existing work is not infringing copyright
  • the use does not a have a substantial adverse effect, financial or otherwise on the actual or potential exploitation of the existing work or on an existing or potential market for it, including that the new work is not a substitute for the existing one.

At this stage, the ALRC is not recommending that Australia follow the Canadian example believing that determining the issue of whether a work is created solely for non-commercial purposes is problematic. That issue, the ALRC argues is made more difficult by the interaction of UGC and social media platforms where the creator of the UGC may not use the work for commercial purposes, but the platform operator may.

The way forward must balance the needs of new creators with the old and should focus on the concept of harm to the original copyright holder.

It is said that copyright as a form of property was implemented to ensure that original creators could maximise the return for their creations thereby encouraging innovation. However, In practice, creativity never occurs in isolation and works generally borrow from
what has come earlier. Transformative works make a beneficial contribution to modern culture and should be permitted particularly when they cause no harm to the incentives to creation for the original copyright holder.

220px-Barack_Obama_Hope_posterWhilst no direct empirical study exists on the economic consequences of transformative works on the rights of the original, some indicative principles can be drawn from a recent study undertaken in the context of the proposed introduction of a parody fair dealing exemption in the United Kingdom. The study reviewed a sample of more than eight thousand YouTube musical videos which were stated to be parody and viewer behaviour in response to those videos. The study found that the activities of the parody creators had little or no direct impact on the audiences of the original creators and if any impact was observed it was positive in that it appeared to be more advantageous for a commercial video to be parodied than not parodied at all. The addition of creative labour to the original made the work potentially transformative and diminished the possibility of confusion in the minds of viewers between the parody and the original. The study went further to note that even if the parody is produced for commercial purposes, it may well increase demand for the original or be sold in a different market. Contrary to popular belief, there is not necessarily any direct relationship between profitability to the copyright owner and the matter of exploitation by others.

We are at a point in history where we have an opportunity to recalibrate our thinking on copyright. Permitting the use of copyright material where no harm is caused to the original copyright holder strikes the right balance between the present and the future and avoids our children being unnecessarily labelled as copyright criminals.

And keeps things like the Hope poster coming.

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