95. C Dent

Full name: Chris Dent

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I agree that the Principles included in the Issues Paper are relevant to both the Inquiry and the reform proposals that are likely to arise from the Commission’s work. I, nonetheless, have a comment to make about one of the included Principles – Principle 7. I also would like to suggest two other relevant Principles that arise from my research into intellectual property and its history – “Individuals are fragmented” and “Encouraging new expression and ideas”. Finally, I will also suggest that the Principle of “Evidence-based reform” is emphasised – it is implicit in the Issues Paper, but its importance requires that it is made explicit.
“Individuals are Fragmented”
The point behind this Principle is taken for granted by people who are well-trained in the area of copyright but is rarely highlighted in either the copyright literature or publications that go to the reform of copyright law. There are two forms of fragmentation that I mean here. First, there is the fragmentation of the different “roles” an individual can play in the copyright sphere. The beauty, and curse, of the digital environment is that one person can, at any one time, be a creator, an owner, a licensee, a user and a consumer of copyrighted material. For me, a user of copyrighted material is someone who includes the material in the process of producing a new creation; whereas a consumer passively enjoys the material. Much of the debate focuses on the “conflict” between corporate rights-holders and individual consumers/infringers and is silent as to the diversity of functions played by individuals (and corporations) in this space.
It may be noted that there is at least one other category of individuals in this space – that of “facilitator”. This category includes entities such as libraries, cultural institutions and internet service providers which facilitate the access of others to copyrighted material. Most individuals, however, do not act as facilitators and so this category is of lesser relevance to the first form of fragmentation.
The second form of fragmentation relates to the different interests or motivations of individuals when dealing with copyrighted material. An individual may create because she or he sees themselves as a “creative person”, they may create because creation is part of their job (their incentive to produce is, therefore, their salary not copyright), they may create to “show off” or they may create because they may be able to sell the creation itself (this is the set of circumstances closest to the ideal of “copyright as an incentive to create”). Economists see this as a form of “intrinsic motivation”, a conception that acknowledges that not all effective incentives are financial.
Further, an individual may infringe copyright for different reasons. She or he may do it for self-gratification (because they don’t want to wait for TV shows to be shown in Australia), for profit, to impress friends or to be creative themselves. Ownership of copyright in a copyrighted work also may have multiple motivations – to sell, to license, as a marker of status or to prevent others from owning or licensing the work. This means that a single individual may be pro-copyright (and enforcement of copyright) as a creator trying to make a sale while being ambivalent to copyright when owning a picture painted by a friend and against copyright enforcement when downloading the latest show from the US. The problem for the architects of the copyright regime is that such an individual may not see the contradictions in her or his actions because the varying responses reflect the different interests of that individual.
These two forms of fragmentation are, in part, the result of a non-unitary purpose of the regime and also they contribute to the complexity of the copyright regime. As an example, the mismatch between the regulatory purpose of the Copyright Act, as understood by the government and rights-holders, and the purpose of the Act as understood by users and consumers of copyrighted material reflects the different goals of the different categories of party. Further, the complexity of the Act is not, in and of itself, bad. If, however, the complexity unnecessarily interferes with how users, creators and owners (collectively, those who are sought to be regulated by the regime) understand their obligations, then the complexity may be an issue. The criterion for justifying simplification should not, as the Commission suggests, be coherence; it should, instead, be based on a clear understanding of the regulatory purposes of the Copyright Act and focus on a clarification of the responsibilities and rights that arise from the legislation.
As an aside, I acknowledge that for many people a regulatory regime requires a centralised organisation for monitoring and sanctioning those who are sought to be regulated. This is the classic model of regulation; new ideas in regulatory theory – such as Julia Black’s “decentred regulation” – acknowledges that regulation exists where there is any ‘intentional activity of attempting to control, order or influence the behaviour of others’ (Parker, Scott, Lacey & Braithwaite (eds), Regulating Law, 2004, 1). The current Copyright Act does intend to impact on the behaviour of creators, owners and potential infringers and, therefore, can and should be seen as a form of regulation.
I should emphasise that the regulatory purposes of the system may be wider than the specific purpose/s of the personal property right that is copyright. The purposes of the overall regime may be seen to be the (positive) behaviours that are sought to be encouraged. In the case of copyright, these behaviours may be, inter alia, the production of new creations (facilitated by the provision of the tradeable monopoly right), the limitation of the copying of the work of others (through the provision of the infringement actions), the validation of the creative effort (through the moral rights provisions), the creative re-use of the original creations of others (through the fair dealing exceptions) and the sharing of creations with a wide audience for public purposes (the provisions relating to educational institutions) and the adjudication of disputes (through the Copyright Tribunal). In short, the actual purposes of the copyright regime are wider than both limbs of Article 27 of the Universal Declaration of Human Rights: “(1) Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits; and (2) Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.”
For a more detailed, and academic, discussion of fragmentation and complexity in copyright, and on why copyright should be understood through a regulatory lens, see Dent, C., ‘Copyright as (Decentred) Regulation: Digital Piracy as a Case Study’ (2010) 35 Monash University Law Review 348 (available for download from http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1659470).
“Encouraging New Expression and Ideas”
That there are multiple regulatory purposes to the regime suggests that there should be multiple principles that inform any reforms to be proposed by the ALRC. For me, an obvious second Principle is the “Encouraging new expressions and ideas”. This Principle has ties to the Commission’s Principle “Encouraging innovation and competition”, however, its grounding is distinct from that discussed in the Issues Paper. My version of the Principle arises from the 1709 Statute of Anne (the Statute). The Commission, rightly, acknowledges the existence of this piece of legislation but it only does so in the context of the economic argument that copyright acts as an incentive to individuals. My argument is that, as a product of the English Enlightenment, the Statute was intended to change the dissemination regime for printed works from one of state control (through the printing patents and printing licences issued by the Crown) to one that privileged learning.
The Statute was not created within an economic context. It preceded Adam Smith’s The Wealth of Nations (often seen as a starting point for the classical school of economics) and, therefore, was not grounded in the framework of “rewards for creation”. The Statute’s movement away from the model of state-control also puts it at odds with the mercantilist understandings of the “economy” that preceded classical economics. This means that we do not have to consider copyright to solely be an instrument of economic policy – it may have economic implications, but it does not have to be supported only by its economic rationale. In other words, just because a statute has economic implications does not mean it has to be understood predominantly from an economic standpoint (the Road Rules, for example, have significant economic impact – efficient transit, reduced costs for injuries etc. – however, those Rules have not been high-jacked by economists).
Related to this is what can be seen as the “fetishisation” of creativity. The focus of discussion is often about ensuring that high profile artists are given the opportunity to share their visions with the world (great film directors are used as examples – on the basis that movies require significant financial investment). This fetishisation, therefore, privileges the highly economically valuable creations. The debate usually ignores the sheer ordinariness of acts of creation. Many people, perhaps most people, produce creations every day that would attract copyright protection (such as this submission). Much of what is on the internet is mundane examples of everyday creativity – blog-posts, comments on sites (to the extent they have sufficient originality) and self-made videos. Any amendments to the copyright regime have to acknowledge that much that is new and original is of low economic value and, perhaps, may not even have any great emotional value.
Some of this, ordinary, creativity is important to the operation of civil society (as it includes the work of journalists, commentators and academics) and it is important to the “sense of self” of all who create. The internet has created a forum that enables many people to share their individual creations with others. This sharing may be done without any desire to commercially exploit the expressive acts. For some, there may even be a specific decision to not exploit the act (deliberately making a song available, for example, for free rather than charging for it). There may, simply, be a desire to claim “I made this” – a claim that is protectable by the copyright regime but one that does not match the putative economic basis of copyright.
The ordinariness of creative self-expression is, if nothing else, a reminder that copyright is not a condition precedent for creativity. At best, the regime may modify decisions around the directions a person’s self-expression may take. It may be better, therefore, to see the copyright regime as fulfilling multiple, equal purposes. The suggested principle of encouraging new expressions and ideas may sit alongside a principle around the facilitation of exploitation of creations for those who wish to exploit their creativity. The latter principle, obviously, relates to the perception of copyright as an economic incentive; further the inclusion in the Copyright Act of mechanisms to resolve disputes may be seen to fit this purpose. One consequence of acknowledging these two purposes is that the balancing of the interests of rights holders with those of creators may be done differently if the economic and the expressive purposes of the regime are seen as equal.
For an introduction to mercantilism and patents in the early modern system (because there was no “copyright” at the time), see Dent, C., ‘Patent Policy In Early Modern England: Jobs, Trade And Regulation’ (2006) 10 Legal History 71 (available for download from http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1001611).
For a brief discussion of patents, the English Enlightenment and the potential for multiple regulatory purposes, see Dent, C., ‘The Possibilities of a Regulatory Approach to Answer the Question: Should Genetic Inventions be Patentable?’ Journal of Law, Information and Science (forthcoming – available on request).
“Evidence-based Reform”
This final principle is not one that limits aspects of the copyright regime; however it is one that should inform the work of the Commission. That is, as the Issues Paper asks for, it is a principle that will ‘inform the ALRC’s approach to the Inquiry’. Effective law reform is based on actual evidence of a failure of the current law to fulfil its regulatory purposes. Of course, the Commission is aware of the need of evidence. The inclusion of this Principle is, therefore, to act as a reminder that good data is of fundamental importance to the Commission’s work. The question then becomes what constitutes good data? There is little quantitative empirical data on the impact of copyright law on creativity in Australia or the impact of the current exceptions on the income of copyright owners – either in the digital sphere or otherwise. This means that more qualitative data will have to suffice. There is, nonetheless, a distinction between good qualitative data and unjustifiable assertions. No doubt there will be plenty of anecdotal evidence provided to the Commission – the extent to which this kind of evidence falls within either the qualitative data or the assertions category will be a key function of the Commission in this process. Further, it is implicit in this Principle that, where there is no good data, a conservative approach to reform is taken as there is no evidence to support change (it may be that the absence of evidence is not evidence of an absence of a problem and, therefore, some change could be recommended on the basis of a principled understanding of the issues). Again, this suggestion will not be new to the Commission; I feel, however, it is important enough to be stated boldly as being integral to the Commission’s work rather than just being something it is ‘interested in’.
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