Is there a copyright future?

Lawrence LessigIn late May I attended a great conference on Copyright Future – Copyright Freedom held at Old Parliament House in Canberra which featured a keynote talk by Stanford University Professor Lawrence who is pictured above. One session of the conference was run in the old House of Representatives chamber and many of the speakers were overcome with the gravity of the setting and the honour of speaking there. The standard of the presentations was in keeping with the historic surroundings, the next step that is needed is for some of the ideas to transition to legislation in the new Parliament House.

Copyright can be a fairly dry subject at the best of times but, judging by the energy in the room, you got a powerful sense from this conference that there is an urgent need for reform. The proceedings were opened by Attorney General Robert McClelland and speakers included Former Justice of the High Court Michael Kirby and eminent lawyers from all sides of the copyright debate. The fact that there was general agreement of the need for reform provides some reassurance that the entrenched positions of the past may soon begin to break down.

In the film and television industry my experience is that if you mention the subject of copyright reform the conversation turns fairly quickly to condemnation of “pirates” and “thieves”. But one thing I learned from the Copyright Future conference was that reform of copyright laws is not unprecedented. There have been major reforms and ammendments to copyright legislation throughout its history in response to evolving creative practices and technologies. Radio, television, photocopying and videotape are among the technologies that have prompted changes in the past including a total redraft of the Copyright act by Nigel Bowen in 1968. So, it is not inconceivable that change to copyright legislation is warranted with the advent of the internet despite the strength of feeling on the issue.

There is no doubt that current copyright legislation is out of step with internet technologies and practices of sharing content online. A punitive approach to online sharing is difficult to enforce although the recording industry persists in mounting legal action in this area. But what is the cost of this approach and is it viable in the long term? Lawrence Lessig, in a powerful keynote presentation appealed for reform of a system which is “criminalising a whole generation”. Using the analogy of the prohibition of alcohol in 1920’s America, Lessig questioned the effectiveness of “waging a war” on alcohol consumption, terrorism or internet sharing. He gave a polished presentation (one that he’s obviously given many times before) which made an impassioned, clearly argued case for reform.

Lessig started by building a picture of the “read-write culture” that we all associate with the internet but pointed to strong antecedents in culture prior to broadcasting. There is a long tradition of artistic work which builds on prior work in painting and literature. Quotation is used widely in academic writing and there are established systems of citation that make this OK. Yet there are no well agreed systems of citation when it comes to digital audio or video. Do writers need to ask permission of the copyright owner to quote someone else asks Lessig? Of course not, and as video and audio become the new lingua franca for global communication these questions become more pertinent. Lessig showed some of the best examples of mash-up culture such as The Obama Hope poster, DJ Dangermouse’s Grey Album, Girltalk,’s Yes We Can mashup, and of course Johan Soderberg’s mashup of Bush and Blair and for a whole lot more pointed us to Greg Rutter’s Definitive List of The 99 Things You Should Have Already Experienced On The Internet Unless You’re a Loser or Old or Something.

These are some of the most inspiring examples of global mashup culture, but Lessig also made mention of some of the less inspiring content that populates the internet by making a wider appeal to embrace amateur content.  Reform of copyright law needs to incorporate a clear distinction between amateur and professional content so that they are treated differently under the law. But perhaps Lessig’s most powerful argument for change was that laws that criminalise a whole generation function to generally erode respect for the rule of law. He pointed to the rise of a copyright abolition movement which, he maintains, is fueled but the disfunctionality of the current law.

Perhaps one of the most powerful moments of the conference was when Professor Adrian Sterling publically agred with Lessig’s appeal for copyright reform. By way of explanation, Sterling is a British barrister and legal academic well known for his representation of the recording industry since the 1970’s and his voice is a powerful addition to the chorus. But to call for reform is all well and good, what are the solutions? Sterling maintains that any reform to the Berne convention (the 1886 international agreement for the Protection of Artistic and Literary Works) is doomed to failure. He maintains that a streamlined system of international licencing needs to be established to reflect the global reach of the internet – an approach that favours changes to the administration of rights rather than fundamentally changing them.

Certainly the decriminalisation of media reuse for amateur purposes is on top of the list for reform. Two approaches seem to be emerging including blanket licencing that frees up amateur reuse of work while encouraging respect for moral rights. The second approach, that Lessig referred to briefly, is the German Green Party’s “cultural flat rat” where legalised sharing of peer to peer material is funded through licence fees collected by internet service providers. More can be read about this here.

All credit to Brian Fitzgerald and the team at QUT Law Faculty/CCI for organising the conference. More documentation can be found here. Although I’m not aware that there was a recording made of Lessig’s presentation at the Conference there is a great one here recorded in New York for which bears a striking resemblance to the talk in Canberra. On the final day of the conference there was a session held to discuss a more open approach to releasing archives and publically owned materials on the internet. If public institutions lead by example on this front it can help to encourage more widespread reform of the system.

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