153._org_ Members of the Intellectual Property, Media and Communications Law Research Network at the Faculty of Law, UTS 

Full name: Natalie Stoianoff

If you are making this submission on behalf of an organisation, please provide the name:  
Members of the Intellectual Property, Media and Communications Law Research Network at the Faculty of Law, UTS 

Address: University of Technology, Sydney, Haymarket Campus PO Box 123 Broadway, NSW 2007 Australia

Question 1: 

Question 2: 
We support the 8 guiding principles put forward by the ALRC as a starting point for informing the ALRC’s approach to the Inquiry, with the following comments on certain of them:
Principle 1: Promoting the digital economy and Principle 2: Encouraging innovation and competition
If the Federal Government’s policy under development has as its objective “to increase the social and economic dividend from the arts, culture and the creative industries”,[1] then Principles 1 and 2 need to form the backdrop against which the issues in this inquiry are framed. This is important when one recognises the copyright industries employ 8 per cent of the Australian workforce, account for 6.6 per cent of gross domestic product and 2.9 per cent of exports.[2] However, Principles 1 and 2 are even more poignant when one considers the negative or lower growth that copyright industries in Australia have experienced in the last few years.[3]
However, we also urge the Commission not to think about copyright law solely or primarily in terms of trade and economic policy, but to recall its central role in cultural policy. As Michael Birnhack has eloquently observed, “copyright law embeds, in a concise and condensed form, a society’s views about creativity, about the production of information and knowledge, and about culture. The rules that compose the copyright regime within a jurisdiction reflect (and also construct) the social values about that creative purpose.”[4] Principles 1 and 2 are important principles, but we submit they are secondary to Principles 3 and 4.
Principle 3: Recognising rights holders and international obligations
We approve of the ALRC’s reference to human rights, but consider that the draft principle should refer to “authors” in addition to “rights holders”. Authors may be rights holders, but rights holders will not always be authors. The interests of both groups may overlap but they are not identical. The interests of authors tend elsewhere in the paper to have been subsumed into those of rights holders but need to be considered on their own terms, in particular in accordance with Article 6bis of the Berne Convention.
In relation to Australia’s international obligations, we observe that copyright law is increasingly becoming a subject of negotiation at the level of bilateral and multilateral trade agreements.[5] Negotiations surrounding such agreements are carried out under conditions of strict confidentiality, which acts to minimise the input of those whose interests may be affected. In light of this apparent direction in policy-making, we submit that there could be significant advantages in introducing greater flexibility into exceptions at the domestic level (see below).
Principle 4: Promoting fair access to and wide dissemination of content
We understand this principle to refer to the public interest in copyright law. As Jessica Litman has written, “A copyright system only makes sense if it facilitates communication of the works to audiences who experience and enjoy them.”[6] Some academics have argued that the public interest should be thought of in terms of “user’s rights” and the Canadian Supreme Court had adopted this language in interpreting the Canadian fair dealing provisions.[7] Whether we talk about rights or interests, it is our submission that copyright must have as one of its central purposes the aim of encouraging reading, listening, viewing, accessing and disseminating copyright works.
Principle 5: Responding to technological change
We agree with the ALRC’s comment that copyright is an area of law fundamentally affected by technological developments. We submit that the legislature should not, however, alter copyright law in order to shore up existing, and possibly outdated, business models. Attempts by established copyright industries to use legislation and litigation in order to impede and discourage innovators have long been an aspect of copyright practice and policy-making.[8] However, while copyright must continue to provide adequate protection for authors and makers, copyright legislation must not become the tool of established parties with vested interests, at the cost of denying users and the public the benefits of new technologies.
Principle 7: Reducing the Complexity of Copyright Law 
It is beyond argument that copyright legislation in Australia is complex, incoherent in places, difficult to find and hard to understand. We are pleased that the Inquiry has as one of its aims “changing the law to make it simpler and more coherent”. We consider that, in achieving this aim, the following matters should be considered.
The exceptions to copyright infringement are scattered throughout the statute, with different exceptions being located in different Parts and in different divisions within those Parts. This was noted by the CLRC Simplification Report of 1998, which further observed, “the organisation of both the fair dealing and the miscellaneous exceptions is confusing... A further problem is that there is a lack of consistency in how the exceptions are arranged in respect of works and subject matter other than works.” The CLRC recommended that all the royalty-free exceptions be located in one part of the Act and also added that the distinctions between works and subject matter other than works should be eliminated or minimised. We agree that this would assist in making the Act more coherent, as well as being more accessible to non-experts.
In addition, we observe that in places the drafting obscures more than it reveals to a reader not well-versed in the vagaries of Australian copyright law. To take one example that might be thought to be close to the hearts of the parties to this submission, we examine s40(3) and s40(4). Academics and students frequently make copies of journal articles in the course of pursuing research and study; s40(3) is therefore a welcome release from potential liability if they choose to make copies rather than take longhand notes while sitting in a library. What, however, is one to make of the rider in s40(4) which provides that subs(3) does not apply if that academic or student wishes to make a second copy of an article for a different course of study or different research?
According to the Explanatory Memorandum, the section “prohibits the reproduction of large portions of unrelated articles from a periodical publication.” But why should a student enrolled, say, in a joint BA/LLB be unable to make copies should it so happen that they find a journal with articles relevant to both their BA and their LLB courses (the BA and LLB potentially being “different courses of study” within the meaning of s40(4))? And, likewise, why should an academic working concurrently on several research projects be able to copy only one article from a journal, even if they should find several of use to different projects in that same publication, but be able to copy as many as they like from the same journal if relevant to the same project? Can this be the intended meaning of the section? The Explanatory Memorandum states: “New sub‑s 40(4) is intended to reduce the uncertainty associated with the meaning of the term ‘different subject-matter’ used in previous sub‑s 40(4).” Whether uncertainty has been removed is debatable; that illogic has been introduced seems incontrovertible.
However, it is important to be clear that we draw a distinction between incoherence and vagueness.We accept that a certain degree of vagueness in copyright law is probably inevitable and, given the infinitely variable nature of the issues that come before the courts, may even be desirable.[9] What is not desirable are specific provisions drafted in ways that do not appear to be explicable by reference to any clear underlying principle, or whose drafting is so opaque that they cannot be understood at all.

In 1902/3, Mark Twain famously commented “Only one thing is impossible to God: to find any sense in any copyright law on the planet.”[10] Copyright law has changed in many ways in the intervening 110 years, but the sense of exasperation and incomprehension experienced so often by those who cross paths with copyright law appears unaltered. We are not proposing that copyright law should (or indeed could) return to the days when it could be contained in eleven short sections.[11] Those days are long gone. However, we should aspire to create a copyright law which, if it were to be explained by an expert to a member of the public, that person would not respond by saying “that’s crazy” or “that can’t be right”. It is clear that, in order to understand the exceptions in copyright law, a potential user must first understand copyright itself. Thus, the problem lies not just in the drafting and placing of exceptions, but in the initial rights of authors, makers and owners.
Today, as Professor Samuelson has observed, “Copyright rules implicate many daily activities of ordinary people. Copyright law has thus suddenly become significant not only to industry insiders who are steeped in the law’s complexities, but also to millions of people who access information on the Internet and who often share this information with others.”[12] Catherine Bond has made a similar point in the Australian context, arguing that this means there needs to be a reconsideration of who Australia’s national copyright legislation should speak to.[13] Ongoing and pervasive infringement, particularly on the internet, suggests that many people are either unaware of, misunderstanding or simply ignoring the law. Recent efforts to bring the law more in line with consumers’ expectations, such as s109A (the iPod exception) are both piecemeal and so technology-specific that they will quickly become outdated .[14]
As a result, we therefore suggest that, in the course of this Inquiry, the ALRC should take up the opportunity to initiate discussion which would assist in developing and articulating a clearer view of the underlying principles of copyright law and policy. It is important that such discussion should cover not only the objectives copyright law should seek to achieve, but also give consideration to the kinds of behaviour and activities copyright law should not be preventing or hindering.[15] It must be remembered that the copyright owner is not necessarily entitled to all the value, or the maximum financial return, that the work is capable of generating.[16] Thus, it should not necessarily be the case that exceptions are drafted in the narrowest possible terms.[17]
The need to reassess the very foundations of copyright law has been recognised in other jurisdictions. In 2007, Professor Pamela Samuelson observed that United States copyright law was too long, too complex, too incomprehensible, imbalanced and lacking normative “heft”.[18] She convened the Copyright Principles Project with the objective of bringing together a broad group of people involved in copyright law to articulate some principles of “good” copyright law, analyse the ways in which existing copyright law does or does not match up to these principles and to recommend changes to achieve greater conformity with the principles.[19] In Europe, a group of copyright scholars collaborated in the Wittem Project to draft a European Copyright Code which would promote transparency and consistency in European copyright law.[20] Thus it seems that across the world there is a growing sense that copyright law is in need of reform at the most fundamental level.

[1] ALRC, Copyright and the Digital Economy Issues Paper, 42 (IP 42), August 2012, 11.
[2] PWC, The Economic Contribution of Australia’s Copyright Industries 1996-97 to 2010-11, Prepared for the Australian Copyright Council (2012), 4.
[3] Ibid.
[4] Michael D. BIrnhack, Colonial Copyright: Intellectual Property in Mandate Palestine (OUP, 2012), p.5
[5] Eg Australia-United States Free Trade Agreement, Trans-Pacific Partnership Agreement, Anti-Counterfeiting Trade Agreement (ACTA).
[6] J. Litman, “Readers’ Copyright” (2011) 58 Journal of the Copyright Society of the USA 325, 341.
[7] CCH Canadian Ltd v Law Society of Upper Canada 2004 SCC 13, [2004] 1 SCR 339 at [48]. See also Re Public Performance of Musical Works, Society of Composers, Authors and Music Publishers of Canada v Bell Canada 2012 SCC 36; Alberta (Education) v Canadian Copyright Licensing Agency (Access Canada) 2012 SCC 37.
[8] See W. Patry, Moral Panics and the Copyright Wars (2009), also I. Alexander, “All Change for the Digital Economy: Copyright and Business Models in the Early Eighteenth Century (2010) 25: 3 BTLJ 1351-1380.
[9] See Timothy Endicott and Michael Spence, “Vagueness in the Scope of Copyright” (2005) 121 LQR 657-680
[10] Mark Twain’s Notebook, 1902-3. We ought to forbear from repeating his second famous copyright observation: “Whenever a copyright law is to be made or altered, then the idiots assemble.”
[11] An Act for the Encouragement of Learning by Vesting the Copies of Printed Books in the Authors or Purchasers of such Copies During the Times therein mentioned (Statute of Anne) 1710 8 Anne c.19.
[12] Pamela Samuelson and Members of the CPP, “The Copyright Principles Project: Directions for Reform” http://www.law.berkeley.edu/files/bclt_CPP.pdf, p.2.
[13] Catherine Bond, ‘”There’s nothing worse than a muddle in all the world: Copyright Complexity and Law Reform in Australia” (2011) 34 UNSWLJ 1145, 1148.
[14] See C. Bond, ibid., 1158.
[15] As Gummow, Heydon and Hayne JJ observed (in the different context of identifying a “substantial part” for the purposes of infringement in IceTV Pty Limited v Nine Network Pty Limited), “the statutory requirement that the part of a work taken must be substantial assumes there may be some measure of legitimate appropriation of that investment.” [2009] HCA 14, [157]. See also brief discussion of expressive function of laws at the end of the submission.
[16] As Jacobs J stated (dissenting) in American Geophysical Union v Texaco Inc  (1994) 29 IPR 381, 417-8, “nowhere in the case law is there support for the proposition that the monopoly granted by copyright is designed to ensure the holder a maximum economic return; rather, the law’s purpose is to balance competing interests – assuring the author of a fair return, while permitting creative uses that build upon the author’s work.”
[17] As the Supreme Court of Canada noted earlier this year: “In Galerie d'Art du Petit Champlain inc. c. Théberge [2002] 2 S.C.R. 336 (S.C.C.), this Court noted that copyright requires "a balance between promoting the public interest in the encouragement and dissemination of works of the arts and intellect and obtaining a just reward for the creator" (para. 30). Théberge reflected a move away from an earlier, author-centric view which focused on the exclusive right of authors and copyright owners to control how their works were used in the marketplace […] Under this former framework, any benefit the public might derive from the copyright system was only "a fortunate by-product of private entitlement […]  Théberge focused attention instead on the importance copyright plays in promoting the public interest, and emphasized that the dissemination of artistic works is central to developing a robustly cultured and intellectual public domain. As noted by Professor David Vaver, both protection and access must be sensitively balanced in order to achieve this goal […]” [references omitted]: Re Public Performance of Musical Works, Society of Composers, Authors and Music Publishers of Canada v Bell Canada 2012 SCC 36, [8]-[10] per Abella J.
[18] Pamela Samuelson, “Preliminary Thoughts on Copyright Reform” [2007] Utah L. Rev. 551, 551.
[19] Ibid.
[20] European Copyright Code, The WIttem Project (April 2010) at www.copyrightcode.eu.
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See response to Question 52
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See response to Question 52
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Question 22: 
We submit that this Inquiry must consider issues raised by the use of Indigenous cultural expressions in the digital environment. By the term Indigenous cultural expressions we include Indigenous or traditional arts and handicrafts, music, song, stories and performances. In April 2009, Australia endorsed the United Nations Declaration on the Rights of Indigenous People 2007. Article 31 of the Declaration provides a compelling reason to ensure that Indigenous cultural expressions are protected in accordance with the customary laws of the Indigenous peoples that produced those expressions:
1. Indigenous peoples have the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions, as well as the manifestations of their sciences, technologies and cultures, including human and genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literatures, designs, sports and traditional games and visual and performing arts. They also have the right to maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions. [emphasis added]
2. In conjunction with Indigenous peoples, States shall take effective measures to recognise and protect the exercise of these rights.
It must be recognised that cultural expressions and knowledge are “imbued with community social norms, customary laws and protocols, cosmology but also connection with the land, environment and location of that community in an integral sense”.[1] However, copyright law recognises the author of the specific work but not the rights of the community to which the author belongs, despite attempts made in a variety of copyright infringement cases involving Aboriginal artistic works.[2] These issues become relevant when the exceptions to copyright come into play. Is it enough that the author of a work gives permission for that work to be digitised and made available to the public in a digital library of some sort? What if the nature of the work was sacred and the community must provide permission before such digitisation can take place or be the subject of some transformative work? Further, what if the work is a cave painting thousands of years old but is sacred to an Indigenous community? Here the author is more than likely unknown and even if known copyright would no longer apply and the cave painting would form part of the public domain able to be reproduced without infringement.
While there are a variety of protocols established in different contexts for dealing with Indigenous culture, such as by museums and libraries[3], often these protocols address the issue of copyright over those cultural expressions from the perspective of obtaining releases to use such material. Economic rights accrue to the author as the owner of the copyright in the cultural expression. How does the community benefit from the exploitation of that cultural expression? The United Nations Declaration on the Rights of Indigenous People 2007 tells us at Article 11.2 that
States shall provide redress through effective mechanisms, which may include restitution, developed in conjunction with Indigenous peoples, with respect to their cultural, intellectual, religious and spiritual property taken without their free, prior and informed consent or in violation of their laws, traditions and customs.
This provides an invitation to either amend the Copyright and other existing regimes or establish sui generis legislation to address concerns regarding the use of cultural expressions without consent of the community.
Moral rights have been suggested by the issues paper as having a role in preventing derogatory use or other misuse. However, moral rights accrue to the author. Once again the community have no rights to assert in such a situation but must rely on the member of their clan who is the author to assert the appropriate rights in relation to the cultural expression. An attempt to introduce a communal moral right has been made through the Copyright Amendment (Indigenous Communal Moral Rights) Bill 2003 (Cth). However, that legislation received little exposure and did not proceed even after a second attempt in 2006. We submit that this inquiry must consider the rights of Indigenous peoples in relation to their cultural expressions and that the creation of a communal moral right (in addition to the existing economic rights and authorial moral rights) would represent a positive adoption of the rights acknowledged under the United Nations Declaration on the Rights of Indigenous People 2007. This would then inform how the exceptions to copyright might operate in relation to those cultural expressions.

[1] Natalie Stoianoff, “Navigating the Landscape of Indigenous Knowledge – A Legal Perspective”, Intellectual Property Forum Issue 90, 7 September 2012, 23, 24-25.
[2] See in particular Bulun Bulun v R & T Textiles Pty Ltd (1998) 157 ALR 193, where the argument for communal title in copyright was not accepted. Instead, Von Doussa J did consider express trust and fiduciary duty as options for categorising the relationship between the Indigenous artist and their community and found the latter to be the more accurate categorisation. However, Von Doussa J found that Bulun Bulun had already discharged his fiduciary duty to his community.
[3] For example: Museums Australia Inc., Continuous Cultures, Ongoing Responsibilities Principles and guidelines for Australian museums working with Aboriginal and Torres Strait Islander cultural heritage, 2005; State Library of Queensland, Protocols for Aboriginal and Torres Strait Islander Collections.
Question 23: 
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Question 25: 
The analytics industry is a growing industry in Australia. The emerging area of “predictive business intelligence and data mining” contributes to businesses in their Risk, Operations, Marketing, Strategy and Fraud/Compliance functions.[1] Data mining in this context has a strong commercial purpose which at the same time raises questions of privacy and security but that is beyond the scope of this submission. Analytics or data and text mining are also a growing part of non-commercial research in the education sector. These analytical techniques, whether commercial or not, effectively copy the digital material that is to be analysed. In so doing one would expect that more than a reasonable portion of the material is being copied and therefore if done without permission of the copyright holder the activity would be an infringement, or would it? In a recent US case, The Authors Guild Inc. et al. v HathiTrust et al.,[2] the trial judge found that non-expressive uses such as text searching and computational analysis are fair use and therefore not infringing the copyright in the underlying material. This judgment is in line with the view expressed by Matthew Jockers, Jason Schultz and Matthew Sag in their Nature article, “Digital Archives: Don’t Let Copyright Block Data Mining”.[3] Judge Baer considered the text searching and computational analysis to be transformative and therefore appropriately falling under the fair use exception. He was not prepared to draw a distinction between the case before him and cases involving internet search engine and plagiarism detection software.
We submit that such an argument be explored, particularly in the light of our comments below regarding questions 52 and 53.

[1] The Institute of Analytics Professionals of Australia (IAPA) see http://www.iapa.org.au/About
[2] The Authors Guild Inc. et al. v HathiTrust et al. 11 CV 6351 (HB)
[3] Matthew Jockers, Jason Schultz and Matthew Sag, “Digital Archives: Don’t Let Copyright Block Data Mining”, 490 Nature 29-30 (October 4, 2012)
Question 26: 
See response to Question 25
Question 27: 
See response to Question 25
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Question 51: 

Question 52: 
While we are responding primarily to Questions 52 and 53, our response should be taken to be relevant also to Questions 12 and 15.
We commence our discussion of the fair dealing exceptions with a brief historical detour. The 1710 Statute of Anne provided simply for a right to print and reprint books. This phrasing left open the question of whether the right applied only to the printing and reprinting of entire books, or also to parts thereof. The copy-owning booksellers argued for the latter interpretation in cases brought before the Court of Chancery where only part of a book had been copied. The Court was not prepared to go so far as protecting against any partial copying, but nor was it willing to allow people to evade the statute by leaving out some parts or making immaterial changes. Over time, the approach that was developed was to express the principle that copying parts of a work for certain purposes, such as quotation, criticism, abridgment, making new works or correcting errors, was acceptable, particularly if the new work created did not interfere with the market for the original work. This approach did not crystallise into a rule that clearly outlawed copying of substantial parts except for certain defined purposes until after the Imperial Copyright Act of 1911.[1] Even then, it has been argued, this was a consequence unintended by the legislators.[2]
An examination of the infringement cases brought before the courts in the eighteenth and nineteenth centuries suggests that the Anglo-Australian approach of carving out certain specific exceptions to an otherwise expansive right developed, if not by accident, then as a consequence of various features of the Anglo-Australian legal system: first, the nature of common law, which favours incremental and fact-specific development of the law on a case by case basis; second, the doctrine of precedent which solidifies judicial explanations into fixed principles of law; and third, the difficulty and undesirability of courts considering broader interests than those of the parties appearing before it. The result of such interactions was that a narrow and specific right to prevent others from making copies, accompanied by a liberal attitude towards those who brought some new or valuable work into society, developed over time into an expansive right accompanied by narrowly formed and interpreted exceptions. What is more, and despite the foregoing factors, much turns on the decision of legislators of the 1911 Act to codify the exceptions to copyright in terms that referred to specific defined purposes. Had they not done so, it seems not improbable that we might have ended up with something much more similar to the modern United States law of fair use, which shares more with the case law of the eighteenth and nineteenth century than does the Anglo-Australian modern law of infringement and exceptions.
The point of this historical discussion is to emphasise that there is nothing “natural” or inevitable about the current fair dealing defences in Australian law. We therefore suggest it is time to take greater account of the interests of users, readers, members of the public (call them what you will). In this vein, we submit that there are real advantages to adopting a more flexible approach to exceptions, especially in light of ongoing technological developments offering new modes of exploiting copyright works as well as challenging our understanding of existing modes of exploitation.  We consider that a broad, flexible exception might go some way towards alleviating the incoherence observed above. As Matthew Sag has commented, in the context of fair use in the United States, “Fair use exceptions keep copyright closer to the reasonable expectations of most people and thus help make sense of copyright law.”[3] Moreover, the recent decision of Judge Baer in favour of HathiTrust’s digital repository demonstrates the important role fair use can play in allowing innovative educational technologies to exist and flourish, as well as the huge benefits offered by the service to print-disabled individuals by such projects
We do not, however, propose the direct transplant of American-style “fair use” exceptions into Australian copyright law.[4] The Issues Paper identifies a number of convincing arguments against introducing such a model into Australia, including problems with transposing doctrines from other legal systems which would likely operate differently when placed in a different legal and constitutional framework. Instead we would support more of a “halfway house” model, such as that proposed by the CLRC in 1998, or the exceptions drafted by the Wittem Group.[5] Although this approach was rejected by the Ergas Committee, largely on the basis that the disruption would outweigh the projected benefits, we propose that it be reconsidered now in light of the many technological developments that have occurred in the interim. We believe that introducing a semi-open norm that largely leaves intact the existing exceptions would combine much-needed flexibility with legal certainty and technological neutrality. It would also be more likely to comply with Australia’s international obligations and the three-step test.
While a semi-open model might introduce some new uncertainties into the law, this would hardly be the only area of copyright characterised by a certain level of vagueness; other principles such as the idea-expression dichotomy and the substantial part doctrine are also notably uncertain in their precise contours.[6] However, as Michael Spence and Timothy Endicott have noted, “vagueness in the scope of copyright protection is not itself a defect in the law”[7] and in fact may be “essential to the project of copyright.”[8] However, vagueness does call for “greater control by a clearer articulation of the purpose of the enquiry as to scope, and of principles to guide decision-makers in conducting it.”[9] We therefore return to the suggestion made above that this Inquiry should seize the opportunity to begin a dialogue in which copyright’s fundamental principles are investigated, examined and articulated, as an essential first step to reforming the law of copyright.

[1] See I. Alexander, Copyright and the Public Interest in the Nineteenth Century (Hart, 2010), Chapter 6. The Imperial Copyright Act 1911 1 & 2 Geo. 5 c.46 was adopted in Australia in the Copyright Act 1912.
[2] R. Burrell, “Reining in Copyright Law: Is Fair Use the Answer” (2001) 4 I.P.Q. 316, 388.
[3] Matthew Sag, “Predicting Fair Use” (2012) 73 Ohio State Journal 47, 50.
[4] As the Canadian Supreme Court recently observed: “this Court has previously cautioned against
the automatic portability of American copyright concepts into the Canadian arena, given the "fundamental
differences" in the respective legislative schemes […]. This caution has resonance in the fair dealing context.” [references omitted]. Re Public Performance of Musical Works, Society of Composers, Authors and Music Publishers of Canada v Bell Canada 2012 SCC 36, [24],[25] per Abella J.
[5] See above, www.copyrightcode.au, Chapter 5.
[6] See Timothy Endicott and Michael Spence, “Vagueness in the Scope of Copyright” (2005) 121 LQR 657-680.
[7] Ibid., 657.
[8] Ibid., 680.
[9] Ibid., 657.
Question 53: 
See response to Question 52
Question 54: 
Question 55: 

Other comments: 
This Submission has be prepared by:
Associate Professor Dr Isabella Alexander: Faculty of Law, UTS
Professor Natalie Stoianoff: Director, Intellectual Property Program, Faculty of Law, UTS
Mr Weng Siow: Faculty of Law, UTS
On behalf of several members of the Intellectual Property, Media & Communications Research Network, Faculty of Law, UTS:
Isabella Alexander	Francis Johns	Allison Silink	
Bill Childs	Isabel Karpin	Weng Siow	
Michael Fraser	Grace Li	Natalie Stoianoff (Chair)	
Philip Griffith	Alpana Roy	George Tian	
Geoffry Holland			

Copyright and the Digital Economy: Issues Paper 42
Submission to the Australian Law Reform Commission
This submission is made by the above members of the Intellectual Property, Media and Communications Research Network of the University of Technology, Sydney, Faculty of Law, being:
It must be stated at the outset that the parties to this submission are deeply ambivalent about the relatively limited scope of this Inquiry. By focussing solely on the exceptions and limitations to copyright, it may be argued that a significant normative choice has been made regarding the various exclusive rights conferred under the Copyright Act 1968 (Cth), as well as the scope of those rights in terms of subject matter, infringing acts, moral rights and remedies. While it is undoubtedly the case that exceptions play a key role in seeking to achieve that much prized “balance between the rights of authors and the larger public interest, particularly education, research and access to information”[1], they are not the only means of delineating the scope of the rights of creators and owners. It is therefore suggested that, if the ALRC truly wishes to assess the ways in which Australia’s copyright law is affecting participation in the digital economy, a more holistic review of copyright law ought to be attempted.
Indeed, we disagree with the proposition that the Inquiry is demonstrating an inherent bias against copyright owners by focussing on exceptions.[2] By contrast, we propose it is equally possible to discern a prior bias in favour of copyright owners through the implicit assumption that the current approach of granting broad and expansive rights to owners, offset by narrowly defined and interpreted exceptions, is correct and desirable. While copyright owners appear to fear that reforming exceptions will prise away some of their closely guarded entitlements, copyright users might equally fear that any reform will remain severely constrained due to the apparent continued commitment to an existing, owner-prioritising model of copyright law. In addition, we reject suggestions, as reported in the media, that there ought to be no examination of copyright law because it is not “urgent”.[3] On the contrary, we believe that a time when reform is not urgently demanded is the very time to examine the state of the law, as it allows such consideration to be carried out in a balanced and measured way, unaffected by externally imposed pressures.
Notwithstanding our reservations mentioned above, and in the spirit of engaging with the current review, we make submissions in relation to Questions 2, 22, 25, 26 & 27, and 52 & 53, together with a more general comment on copyright law and its place in the community.
Additional comments
Although it does not directly form part of the ALRC’s terms of reference, we observe that an underlying theme of many of our submissions, and perhaps also of the ALRC’s questions, is that there exists a certain perception in the wider community that copyright law lacks legitimacy. It is sometimes suggested, by those concerned about the widespread non-compliance with copyright law, that consumer “education” is required to “teach” the public to obey copyright law. Record companies in the United States have engaged in litigation against individual file-sharers for such educational purposes[4] while government bodies, private companies and WIPO have developed educational programs for primary school students.[5] Whilst we hesitate to endorse a strategy of informing citizens about copyright law with the object of attempting to regulate certain kinds of conduct, we would welcome the creation of a forum or space in which copyright can be explained and its justifications examined critically and openly. There is no doubt that, even if our copyright law were to be improved in line with the suggestions made here and elsewhere, the law would remain complex and abstract and, as such,  far from intuitive to many people. There are many significant differences between physical and intangible property which ought to be made explicit in any public discussion, so that the benefits of copyright law as well as the harms flowing from non-compliance can be properly appreciated.
Moreover, if users and consumers could benefit from thinking more carefully about their rights and obligations in respect of copyright law, so too could copyright owners. The knife must cut both ways. As Jane Ginsburg has observed, the reason that copyright has got a bad name for itself is down to “Corporate greed and consumer greed.”[6] Copyright owners “have urged and obtained ever more protective legislation, that extends the term of copyright and interferes with the development and dissemination of consumer-friendly copying technologies” while consumers “have exhibited an increasing rapacity in acquiring and “sharing” unauthorized copies of music and…motion pictures.”[7] In addition to lobbying parliament for greater protection, copyright owners are sometimes guilty of overreaching, whether by claiming rights in public domain works, using technological protection measures which prevent users from taking advantage of the exceptions to copyright, [8] or simply by charging excessively high prices for access or use.[9]
The point could further be made that this educative approach to copyright law could be seen as desirable due to an increasingly regulatory approach to copyright and its enforcement which focuses significantly on sanctions, ie, what is lawful and what is unlawful. Our earlier expressed hesitation in endorsing this economics-influenced imperative theory of law lies in the fact that it does not really work or, at least, its efficacy is limited. We submit that if the Inquiry is contemplating a re-drafting of the Copyright Act (“changing the law to make it simpler and more coherent”) and accepts that copyright law should “make sense” to owners and users, then the recent debate in the US regarding the theory of expressive function of laws may be of some utility here. The theory claims that “in addition to its sanction function, law has an “expressive” function. The thesis is that law influences behaviour independent of sanctions it threatens to impose, that law works by what it says in addition to what it does.”[10] Lawrence Lessig calls this the social meaning of law.[11] This theory is closely associated with (and in some cases distinguished from) the theory of regulation by norms (mainly social norms).[12] Copyright user compliance seemingly is a very apt case for the application of the theory of expressive function of law. As stated earlier, before a user can understand the “exceptions”, he or she must understand the rights granted and their conceptual framework. Re-writing copyright law incorporating its aims and goals either explicitly as legislative statements (norms) or implicitly within the structure (Lessig’s architecture/code) would help to influence behaviour (expressive function). Legislators need to answer the question, putting it in crude marketing terms (but which is apposite in social media terms): what is the message? We hope that this Inquiry will go some way towards formulating an answer.

[1] WIPO Copyright Treaty, Preamble.
[2] Comments made by Peter Banki at “Copyright and the Digital Economy: So Many Issues, So Little Time”, Copyright Society Seminar, Allens-Linklaters, Monday 5 November 2012; see also, Andrew Colley, “Panel on copyright accused of bias”, The Australian, 23 October 2012.
[3] Alex Boxsell, “Copyright Law: does it really need fixing?” Australian Financial Review, 2 October 2012.
[4] See Ben De Poorter and Sven Vanneste, “Norms and Enforcement: The Case against Copyright Litigation” (2005) 84:4 Oregon Law Review 1127-1180, 1128
[5] For discussion and criticism of many such educational campaigns see Tarleton Gillespie, “Characterizing Copyright in the Classroom: The Cultural Work of Antipiracy Campaigns” in M. Biagioli, P. Jaszi and M. Woodmansee, Making and Unmaking Intellectual Property (Chicago, 2011), 215-234. Also Annemarie Bridy, “Why Pirates (Still)Won’t Behave: Regulating P2P in the Decade after Napster” (2008-9) 40 Rutgers Law Journal 565, 605ff.
[6] Jane C. Ginsburg, “Essay – How Copyright Got a Bad Name For Itself”(2002-3) 26 Colum. J.L. & Arts 61, 61-2.
[7] Ibid.
[8] For examples in the US context, see Jason Mazzone, Copyfraud and other Abuses of Intellectual Property Law (Stanford, CA, 2011).
[9] For example, in the famous litigation over Men At Work’s song, “Down Under” and “Kookaburra sits in the old gum tree”, Larrikin Music sought 40-60% of the royalties due from APRA/AMCOS. Jacobsen J assessed the figure at 5%, on the most generous view to the plaintiff, stating he considered Larrikin’s claim to be “excessive, overreaching and unrealistic.” Larrikin Music Publishing Pty Ltd v EMI Songs Australia Pty Limited (No 2) [2010] FCA 698 (6 July 2010), [224].
[10] Richard H McAdams, “A Focal Point Theory of Expressive Law” (2000) 86 Virginia Law Review 1649, at 1650-1651. This theory is to be distinguished from a related theory of expressionism in laws which deals with the values that laws expresses.
[11] Lawrence Lessig, “The Regulation of Social Meaning” (1995) 62 University of Chicago Law Review 943.
[12] In addition to Lessig, see Cass R Sunstein, “On the Expressive Function of Law” (1996) 144 University of Pennsylvania Law Review 2021; idem “Social Norms and Social Roles” (1996) 96 Columbia Law Review 903; Dan M Kahan, “Social Influence, Social Meaning and Deterrence” (1997) 83 Vanderbilt Law Review 349; Richard H McAdams, “An Attitudinal Theory of Expressive Law” (2000) 79 Oregon Law Review 339. See also Maggie Wittlin, “Buckling Under Pressure: An Empirical Test of the Expressive Effects of Law” (2011) 28 Yale Journal on Regulation 419 on an empirical study of seatbelt laws in the US.
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