IP Issues Paper 42 – Reframing the Owners
While the terms of the ALRC’s reference do not refer to the words “owners” for “users” the discussion paper itself implicitly assumes that there is a distinction between these two groups of people. In my view, such an approach is not appropriate. The “users” v “owners” dichotomy is a persistent meme in copyright law, as is that the establishment of rights in respect of copyright involves a “balancing” of the rights of “creators” and “owners” against the rights of “users”. To argue such a distinction today is inconsistent with reality.
At the time of the invention of the printing press and its dissemination and industrialisation from the 15th through to the 17th centuries in Europe, and particularly in England, the most logical way in which one could acquire a copy of a work was through a publisher of that work publishing it with a printing press. As presses were comparatively expensive and required technical skills in order to operate there were also comparatively few of them. Moreover, as a result of the religious strife in England following the death of Henry VIII the government had an interest in regulating, the use of printing presses (as presses were used to print seditious material, primarily by way of pamphlet).
The government created a monopoly in printing in favour of the Stationers Company which survived as a matter of practice (if not legal formality) through to the establishment of the Statute of Anne in 1709 and continued on with renewed vigour after the passage of that Act. In those circumstances it is easy to draw a direct line from an author through a publisher to a distributor, retailer and retailer and ultimate “user”. In this case, the buyer of the publication. In those days there was little opportunity for there to be a return path from that “user” back to the original author of the book, or, indeed, between other “users”. While “users” likely engaged in written correspondence with others the dissemination of that correspondence was greatly limited by the available technologies. In these circumstances it is, at least understandable that one might separate these people into two distinct groups – those who are giving and those who are receiving the work.
Reference for copyright history: Copyright in a Frictionless World
In today’s world such a distinction is no longer tenable. When a person visits Wikipedia and, seeing in an entry which is incorrect writes more work to replace that incorrect entry that person is not rapidly change hats transforming, from one moment as a “user”, then an “owner” then reverting back to a “user” from one moment to the next. Rather, they remain an owner of copyright for the entire time. Yet these owners are invisible for the purposes of the Copyright Act and policy making in relation to it. They are almost completely unrepresented in any discussion in the interests are not only ignored, but marginalised and, to some extent, vilified – witness the propaganda against the iiNets and Googles of this world.
The scope of protection afforded under copyright law is extremely broad. There is a very low bar of originality which must be met before a work, which has been reduced to material form will support the subsistence of Copyright. Of the over 20 million residents of Australia the vast majority are copyright “owners” (in that there exists at least one copyright which vests in that person). Of these a bare 200,000 or so – a little less than 1% of the total (even on generous estimates) are represented by collecting societies, publishers and those organisations usually purporting to speak on behalf of copyright “owners”.
To the extent that Copyright law is purported to be made in the interests of these “owners” it is discriminating in favour of the interests of a vocal 1%. One might imagine a property law in which the only property owners involved in the rights setting were those who owned large commercial blocks or the owners of shopping centres. It would not be surprising in such a setting for that small group of property owners to set rules in such a way that effectively stripped rights from the others and to justify in the interests of their “property” rights. Such a world might have, for example fast–tracked development application processes and discriminatory rights of acquisition as against other property owners. Such a system would be neither fair nor representative. It is important to recognise that this system will also never evolve into a competitive economy because it creates special rules which favour a small group, effectively excluding the majority of potential participants.