Collisions in the Digital Paradigm: Information Rights and Copy Rights

A Sketch of Thoughts for the ADA Copyright Forum 2013

Judge David J. Harvey

A Judge of the District Court, New Zealand

 This discussion has been a developing project. It still has some way to go. It started as some notes for a keynote speech at the Australian Digital Alliance Forum on 1 March 2013 and formed the basis for a powerpoint presentation together with some discussion points for a panel following the keynote.

 I had completed the notes for the keynote speech but was aware that the rights-based approach to gauging the applicability or strength of copyright protection required further development. I was fortunate enough to be invited to Kiwi Foo – a gathering of people to discuss issues of common interest organised by Nat Torkington and Russell Brown at Warkworth, north of Auckland, in the second weekend of February 2013. I took the opportunity to put the ideas before an audience and see what sort of reception they attracted and what further developments could take place. The session lasted for an hour although I am sure it could have lasted longer, but I was able to clarify some of my own thinking as well as benefitting from the collective wisdom of the group. I am very grateful to all those who attended the session and especially grateful to Lance Wiggs who recorded the various inputs and suggestions on a white board which I photographed with my iPad for further reference.

 I like to see how a proposal works and the Kiwi Foo session fed into that aspect of the development of this discussion and very much informed the latter part of this note where I move to consider how a rights-based approach to copyright would work.

 If this approach to copyright is to go further, much more work will need to be done to rigorously crystallise the basis for change (paradigmatic change in communications as a result of technology leads to changes in behaviours and values and their validity, which underpin the basis for rule making) and examine the way in which a rights based model may work. I see this as a collaborative undertaking and I welcome commentary and new ideas. It may well be that a rights based model may not be the way to go. An entirely different model or an entirely novel solution may emerge. But this is a debate worth having. Between 1695 and 1710 there was a debate about the way in which the trade and technology of printing should be governed. That debate culminated in the Statue of Anne and took place within the context of paradigmatic change in information communication by means of the first information technology. It seems appropriate that we address the issues of copyright anew in this time of paradigmatic change following the development of digital communications systems.

A copy of the Conference presentation (without media) may be found here Collisions in the Digital Paradigm Short

My keynote speech may be found on YouTube Here

 Introduction

 Copyright has collided with the digital paradigm and is in difficulty. There are reasons for this and one of the principal ones is that copyright was developed under a different paradigm. But the current copyright wars that are taking place at the moment are not new.  In fact they are part of continuing story that goes right back to the advent of copyright.

In this discussion I shall outline some of the background to copyright. I argue that paradigmatic change challenges our assumptions about and expectations of information. I contend that the digital paradigm is so revolutionary that it undermines some of the values and assumptions that underlie traditional copyright thinking. There can be no doubt that there must be some protection for intellectual property rights. I will conclude by suggesting a possible approach.

Copyright has always been contentious. It creates tensions on the part of content owners who don’t think they have enough protection, and consumers who think that content owners have too much protection. It is a tension as old as copyright itself. And although historically there have been examples of intellectual property protection before the Renaissance[1], the copyright debate began as a result of relatively recent event in human intellectual history. Copyright is the child of the print paradigm. The printing press was the first information technology and it enabled revolutionary change in the way in which people approached and used information.

The printing press mechanised the production of text.  The paradigm that preceded it – what I refer to as the scribal culture – involved the creation of written information by hand.  The volume of written information was limited by the number of copies that were available.  There are a number of consequences for this.  One involved approaches to and expectations of information.  In many cases, because of a limited number of copies, information was located at a central point.  Scholars would necessarily have to travel to that information point be it in a library or a collection where they could access the information and return to their own home to process it.  Necessarily they would take a copy of the information that they sought with them.  They would transcribe the information themselves.  This is the way in which information circulated in the pre-print world.  Copying was a reality.  It was the only way that information could be circulated and there was no concept of what we understand as “the copy right”.

Yet even the origin of our copyright has been contentious. Received wisdom suggests that it had its origins in the licensing regime that was part of the activities of the Stationers Company in England. I dispute this proposition.

The Stationers Company, Licensing and Industry Protection

When one carefully examines the activities of the Stationers Company, even before its incorporation in 1557, it is clear that its focus was directed towards the objective of industry protection for the benefit of its members and the control of the new means of reproducing information.[2]

The Stationers were a craft guild and had been in existence from the latter part of the 14th century.  Originally their guild incorporated everyone who was involved in the creation and manufacture of books.  Stationers were just one arm of the book production operation.  Primarily their role was in the sale and distribution of books that had been copied by scribes, illustrated by limners and bound by binders.  Indeed the formation of the guild suggests that the book trade was well developed in sufficiently competitive to make an early form of governance desirable. Guilds played a significant part of the economic and political life of a city, ensured that proper training for apprentices was undertaken and had a hierarchy of expertise within the guild itself.[3]

By their very nature the Stationers were interested in protecting their craft for the benefit of members of the guild and excluding from the practice of the craft those who weren’t.  Once the printing technology arrived and after the Stationers were incorporated in 1557 the importance of this protection was enhanced.  After all, anyone who had the capital to obtain a printing press could set up in the business of a printer, unsupervised by the Stationers who would challenge their monopoly on the production of books and adversely impact the financial and economic welfare of members of the Stationers Company.  The Stationers authorised certain printers to have the exclusive rights of printing certain books and these were registered in the Stationers Company register.

Now all this may be seen as a form copyright but in fact it was a means of ensuring that only members of the Stationers Company printed books and any books that were printed that had not been registered with the Stationers company at least prima facie could be viewed as books that were printed by a non-member whose activity should be suppressed. After incorporation the Stationers Company was vested with considerable powers to ferret out printers who were not members of the company.

Alongside Stationers Company licensing was the grant of privileges by the Crown to certain printers to have the exclusive rights to print certain works.  This was done by means of a Royal Patent.  These patents could be very valuable.  The patent, for example, that allowed a printer to print a prayer book was extremely valuable because nobody else could.  A prayer book was essential in a society where church attendance was compulsory. The patent that was granted to Richard Totell to print common law books essentially meant that Totell had a monopoly over legal publishing over the latter half of the 16th century.

Because patents were an exercise of royal prerogative power any disputes over the scope of patents would be litigated in the prerogative Court of Star Chamber.  Now it must be remembered that this litigation had nothing to do with author’s rights but everything to do with the protection of the publisher and the developing industry. The Star Chamber Decrees of 1587 and 1634 which, according to many commentators were more directed towards censorship than anything else are, in fact industry control mechanisms that arose out of litigation about patents, their infringement and scope.[4]  In fact if one considers carefully the background to the litigation, the enquiries that were carried out in the late 1570s and early 1580s and the concerns of the Stationers about “disorders” in the printing trade it becomes abundantly clear that the Stationers were interested in keeping their monopoly over the use of the new information technology, excluding non-members from its use, and ensuring that members of the company receive the economic benefits from it.

The disruptions of the Civil War from 1642 through to the Restoration meant essentially that there was an hiatus in the development of printing controls.  Following the Restoration a very rigorous system of print licensing, directed as much towards content as it was towards industry monopoly and control, followed the enactment of the Licensing Act 1662. The Act was enforced by the Stationers – continuing their control over the industry – and was renewed biannually through until 1694 when the licensing rules came to an end.

For a period of 15 years there was a debate about the control of publication of printed works. The focus of the debate began to shift from the publishers to the authors. The writers Jonathan Swift and Daniel Defoe were among the advocates for the author’s right to receive remuneration from the sale of his work.  In 1710, after considerable lobbying and debate, the first copyright statute was enacted – the Statute of Anne – and this was directed towards the new information technology of printing.

Since then copyright has been inextricably tied up with information technologies. It is really based on the use of technology rather than any underlying “property” principles, although it has been dressed up as such.

Scribal Culture Co-existence

Nothing is said in the Statute of Anne about manuscript works and I think that we’ve got to remember that the scribal culture co-existed with the developing print culture for a considerable period of time.[5]  It wasn’t until the advent of the typewriter that the individually created handwritten document effectively came to an end.  But we must remember that content was still available in manuscript form. A fundamental aspect of the scribal culture was that copying was a reality and effectively the only means by which manuscript works were circulated.

There were a number of reasons for the continuing interest in manuscripts.  Within the area of legal writing most lawyers who subsequently had their works printed – like Edmund Plowden[6] and Sir Edward Coke[7] – circulated their works among coteries of friends or fellow professionals within the Inns of Court. Manuscript publishing was for limited audiences.[8]  Printing addressed mass production.  So the Statute of Anne in fact reflects a recognition of the values of two cultures and the qualities of the printing press that differentiated it from the manuscript culture.

 Copyright Wars

Following The Statute of Anne there was a continuing debate about copyright. Publishers looked to other theories to protect the exclusivity on the right to produce content, arguing in Miller v Taylor[9] that there was a common law right to copyright which the Court upheld but which was later overturned in Donaldson v Beckett.[10]

When one looks at the litigation that took place in the early days of copyright -  Miller v Taylor, Donaldson v Beckett, Tonson v Collins[11] – we must ask ourselves whether or not any of the litigants were authors and the answer is no.  The battle then and almost exclusively since has been contended, at least on one side, by the publishing and distribution conglomerates.

There is a reason for that.  Commercial copying and distribution, starting with the printing press, was and is a capital intensive business.  Printing, radio broadcasting, television broadcasting, sound recording, movies are all capital intensive and require large corporate structures, capital investment and financing to publish and distribute the works that the various technologies allow.

Because copyright has called itself technology neutral – a theory which I would dispute vigorously – the principles that were developed in the early years of copyright that underpin the Statute of Anne have remained – principles that had their grounding in print technology.

Essentially conglomerates or monolithical organisations could feel relatively comfortable about their control and dissemination of their content.  The first real challenge to capital intensive complacency came in the form of the photocopier – a cheap, available and accessible means to copy printed works. Although the photocopier was a product of analog technologies, and was just another type of printing press, it was the first alarm bell for print based copyright. It was one of the first examples of the empowerment of individuals to access information other than through established commercial outlets.[12] With the onset of the digital revolution more and more means have become available for individuals to create their own content or to copy that of others.

The conglomerates and the copyright corporates recognise that the power balance has shifted as a result of the new technologies to the point where everyone is able to copy.

Yet the legal battles that have been waged recently reflect what happened in the early days of copyright – the litigation is at the urging of the corporate and conglomerates and authors don’t really seem to feature at all.  Examples may be found in the cases of A & M Records v Napster[13]; Recording Industry Association of America v Diamond Multi Media[14]; Universal City Studios v Reimerdes and Corley[15]; MGM Studios v Grokster[16]; Sony Computer Entertainment v Edmunds[17]; Sony v Ball[18]; Sony Music Entertainment Australia Ltd v University of Tasmania[19]; Sony v Stevens.[20]

In some cases the responses of the conglomerates has been to try and shut down the technology altogether – resist technological change by banning the technology, thus further emphasising the association of copyright with technology. This is an example of vested interest complacency and the failure to understand the view of Mcluhan about rear view mirror thinking -  by the time you recognise the problem caused by a new technology it is generally too late. Examples may be found in the Betamax case  – Sony Corporation of America v Universal City Studios[21] and in the English case about twin reel cassette tape recorders – CBS Songs v Amstrad.[22]

 Every copyright statute has in it provisions about infringement. However, those infringement remedies really can only be sought if it is economically feasible to do so. In today’s digital environment the costs of litigation are too high to pursue individual infringers so copyright conglomerates have managed to obtain an additional infringement remedy – graduated response regimes to deal with file sharing. Let’s be clear about a few things. The first is that copyright owners would have preferred a “guilt by accusation” system with a reverse onus on the alleged infringer. It is just another way of saying that everyone who has a computer or who downloads or has a file locker in the Cloud is a pirate. That was made clear in the original s. 92A debacle in New Zealand The second thing is that a graduated response regime is economically beneficial for copyright owners. In New Zealand complaints of infringement must be accompanied by a $25.00 fee – a little less than instructing a silk and instituting High Court infringement proceedings. Let us be under no illusion about this. The only ones who benefit from the graduated response regime are copyright owners and the cost savings are significant.

 The Answer to the Machine……

One of the problems that copyright theory faces is that we are now in a new information paradigm – a paradigm that is as different from the print and analogue as printing was from the scribal culture.  New copying technologies and digital systems challenge existing copyright thinking because digital technologies work on a premise that is so fundamental that it strikes right at the heart of copyright and that is that copying is necessary for digital technologies to work they can’t function without copying.

It was this reality that prompted Charles Clark to comment “the answer to the machine is in the machine.”[23]

Essentially what Clark was saying was the fundamental problems created by digital technologies have a  solution within the technology itself.  Content owners could take control the copying that was necessary to make digital technologies work.  Thus developed what Kirby J referred to as para-copyright[24]  – the development of technological protection measures (TPMs) and the legal protection of technological protection measures, which meant that attempts at circumvention or the provision of means of circumvention of TPMs were considered on a par with copyright infringement itself.

One of the unintended consequences of TPMs may be seen in the cases of Sony v Edmunds[25] and Sony v Ball[26] in England. These decisions opened the door to copyright by contract. Content owners could impose technological protection measures which could be circumvented if the approved equipment was used. In addition owners could impose standard terms and conditions of sale and could write their own copyright contract that went far and away beyond the careful balance that had been achieved in legislation.  The copyright owners’ dream in Miller v Taylor[27] was finally becoming a reality.

Para-copyright protections actually challenge the developing concepts of fair use and any other concepts that may develop in the digital environment.  TPMs can lock up content far beyond the copyright term.  They are indiscriminate in their prevention of copying and although they may claim to have a focus on copy protection many TPMs are in fact used for access protection as well which is something of an anomaly in the global world – an anomaly perpetuated by the regionalisation of content via Netflix, Hulu, Amazon Music and iTunes.

Clark’s adage about the answer lying in the machine runs up against a problem. Machines don’t operate on their own.  Machines are meant to be servants of people and challenging Clark is McLuhan’s concept of technology induced behavioural change based on another adage -  first we shape our tools and thereafter our tools shape us.[28] And the digital tools that have developed and are developing have already begun that shaping process. I shall develop that argument shortly.

 Welcome to the Machine[29]……Digital Natives, Information Expectations and Frustrations

I make no secret of the fact that I am an adopter of digital technology – a digital immigrant.  I am speaking to you as one who was brought up in the print paradigm.  In my childhood the main means of communication of information apart from the spoken word was by print – books and newspapers or by radio.  I remember the introduction of television.  I have grown up with that medium.  And I have seen the wonderful developments that computer based and digital information technologies can provide.  And I am an enthusiastic adopter of those technologies. My children and grandchildren are digital natives. They will grow up in a world where digital technology always has been around. The idea of a single function telephone that can only be used for vocal communication would seem to be an outrage to them. They are aware of the capabilities and potentials of the new technology and have certain expectations of information that run up against copyright law.  They know that certain seemingly harmless things are feasible even if the law does not permit them.

Digital natives – and I shall have more to say about them shortly – view copyright theory and the values of copyright that developed in the pre-digital world as atrophied and outdated. The position has been made worse by the “commodification” or “walmartisation” of intellectual property coupled with a failure by copyright owners and distributors to recognise that globalisation has been accelerated by the internet in a world where content is digital.

Digital natives find it difficult to understand why it is that they may be willing to pay for a product that copyright owners won’t let them purchase or access.  I can’t subscribe to Hulu because I live in the wrong part of the world.  I can’t download content because I live in the wrong part of the world.  Yet the internet and the globalisation of content and e-commerce have essentially made at least the commercial world a world without boundaries.[30]

A fundamental concept of contract law – that says that it is not in fact the person who has the goods on their shelves but the person who wants to buy the goods that is making the offer, and that the seller has the right to refuse or to accept the offer – provides the basis for copyright owners to regionalise their product.  But the digital native doesn’t see it that way.  They are prepared to pay.  The copyright owner is not prepared to accept the money.  So let’s then look at another solution. We know another way to get the content. Let’s file share.

Some New Zealand television channels screen episodes of popular US shows  a matter of days after they were screen in the United States.  That, to my view, is encouraging because it eliminates the necessity to download to find out what was going on in the show and one could possibly avoid the “spoiler community” for a couple of days.[31] More importantly it is at last a recognition by the content owners that there is growing consumer outrage towards a regionalisation of product that might have been understandable in the days when the movie was carried in a can across the Pacific on a steam ship but which today is instantly available.

In essence when we are looking at access to information and the distribution of information we are looking at aspects of expression – that essential that engages the “copy right”. We need to look at a new approach that recognises technological realities and what it does to behaviour, the values that underly behaviour and consequential expectations of information.

 We Shape Our Tools……

 Marc Prensky, an educationalist who wrote in the early 2000s identified “digital natives” as those who have spent their entire lives surrounded by and using computers, video games, digital music players, video cams, cell phones and all the other tools and toys of the digital age.  Digital natives, said Prensky, are native speakers of the digital language of computers video games and the internet.  But I’m not one of those.  As a digital immigrant I speak with a different accent from that of the digital native.  I have adapted to the new environment but I retain to a certain degree my accent that is my foot in the past.  I know how things were.  That “accent” can be seen in such things as preferring a book with pages to a Kindle or an iPad, turning to the internet for information second rather than first, or even reading the manual for a programme rather than assuming that the programme itself will teach me how to use it.  The digital language is a new language for me and a language learned later in life goes to a different part of the brain.

And that’s one of the interesting things that new technologies do for us.  They change us.  Sometimes we can recognise the changes that they make but there are other changes that are more difficult to recognise. They operate at a subconscious level.[32]

It may be surprising to know that learning to read is not something that comes naturally to people.  It isn’t like speech – our primary means of communication.  When you learn how to read what happens in the brain is that your neural pathways change.  And once they have changed they have changed forever.  Learning to write involves similar changes and what happens with both of those activities is that a remarkable amount of processing of information takes place and it all happens at a subconscious level.

You see writing is a code.  It’s a code for information that is initially conceived as an oral expression and is then rendered into phonetic alphabetically form and when it is read it is reprocessed so that it has meaning.  But in the way in which we read and we write we realise Marshall McLuchan’s comment that “We shape our tools and thereafter our tools shape us.”[33] And the use of new technologies is clearly just that – both behaviourally and physiologically.

 The Medium Is…….. Elizabeth Eisenstein and a Qualities Based Analysis of Print Media

Part of the problem is trying to identify what it is about our tools that allow these changes to happen or that enable them.  In her seminal work on the printing press – The Printing Press as an Agent of Change – Elisabeth Eisenstein identified 6 fundamental qualities that the print technology introduced that dramatically challenged the way in which the scribal culture produced texts.   These particular qualities were the enablers that underpinned the distribution of content that enhanced the developing Renaissance, that spread Luther’s 97 arguments around Germany in the space of 2 weeks from the day that they were nailed on the Church door at Wittenberg, and allowed for the wide communication of scientific information that enabled experiment, comment, development and what we now know as the Scientific Revolution.

And it also happened in my own field the law.  Within 300 years of the introduction of the printing press by Gutenberg the oral-memorial customary- based ever-changing law had to be recorded in a book for it to exist.

It would be fair to remark that Eisenstein’s approach was and still is contentious. But what is important is her identification of the paradigmatic differences between the scribal and print cultures based upon the properties or qualities of the new technologies. These qualities were responsible for the shift in the way that intellectuals and scholars approached information.

There were six features or qualities of print that significantly differentiated the new technology from scribal texts.

 a) dissemination

b) standardisation

c) reorganization

d) data collection

e) fixity and preservation

f) amplification and reinforcement.

 For example, dissemination of information was increased by printed texts not solely by volume but by way of availability, dispersal to different locations and cost. For example, dissemination allowed a greater spread of legal material to diverse locations, bringing legal information to a wider audience. The impact upon the accessibility of knowledge was enhanced by the greater availability of texts and, in time, by the development of clearer and more accessible typefaces.

Standardisation of texts, although not as is understood by modern scholars, was enabled by print. Every text from a print run had an identical or standardised content. Every copy had identical pagination and layout along with identical information about the publisher and the date of publication. Standardised content allowed for a standardised discourse. In the scribal process errors could be perpetuated by copying, and frequently in the course of that process additional ones occurred. However, the omission of one word by a compositor was a “standardised” error that did not occur in the scribal culture but that had a different impact and could be “cured” by the insertion of an “errata” note before the book was sold. Yet standardisation itself was not an absolute and the printing of “errata” was not the complete answer to the problem of error. Interaction on the part of the reader was required to insert the “errata” at the correct place in the text.

In certain cases print could not only perpetuate error but it could be used actively to mislead or disseminate falsehood. The doubtful provenance of The Compleate Copyholder attributed to Sir Edward Coke is an example.[34] Standardisation, as a quality of print identified by Eisenstein, must be viewed in light of these qualifications.

Print allowed greater flexibility in the organization and reorganization of material and its

presentation. Material was able to be better ordered using print than in manuscript codices. Innovations such as tables, catalogues, indices and cross-referencing material within the text were characteristics of print. Indexing, cross-referencing and ordering of material were seized upon by jurists and law printers.

Print provided an ability to access improved or updated editions with greater ease than in the scribal milieu by the collection, exchange and circulation of data among users, along with the error trapping to which reference has been made. This is not to say that print contained fewer errors than manuscripts. Print accelerated the error making process that was present in the scribal culture. At the same time dissemination made the errors more obvious as they were observed by more readers. Print created networks of correspondents and solicited criticism of each edition. The ability to set up a system of error-trapping, albeit informal, along with corrections in subsequent editions was a significant advantage attributed to print by the philosopher, David Hume, who commented that “The Power which Printing gives us of continually improving and correcting our Works in successive editions appears to me the chief advantage of that art.”[35]

Fixity and preservation are connected with standardisation. Fixity sets a text in place and time. Preservation, especially as a result of large volumes, allows the subsequent availability of that information to a wide audience. Any written record does this, but the volume of material available and the ability to disseminate enhanced the existing properties of the written record. For the lawyer, the property of fixity had a significant impact.

Fixity and the preservative power of print enabled legal edicts to become more available and more irrevocable. In the scribal period Magna Carta was published (proclaimed) bi-annually in every shire. However, by 1237 there was confusion as to which “Charter” was involved. In 1533, by looking at the “Tabula” of Rastell’s Grete Abregement of the Statutys a reader could see how often it had been confirmed in successive Royal statutes. It could no longer be said that the signing of a proclamation or decree was following “immemorial custom”. The printed version fixed “custom” in place and time. In the same way, a printed document could be referred to in the future as providing evidence of an example which a subsequent ruler or judge could adopt and follow. As precedents increased in permanence, the more difficult it was to vary an established “custom”. Thus fixity or preservation may describe a quality inherent in print as well as a further intellectual element that print imposed by its presence.

Although Eisenstein’s work was directed more towards the changing intellectual environment and activity that followed the advent of printing and printed materials, it should not be assumed that printing impacted only upon intellectual elites. Sixteenth and seventeenth century individuals were not as ignorant of their letters as may be thought. There are two aspects of literacy that must be considered. One is the ability to write; the other being the ability to read. Reading was taught before writing and it is likely that more people could read a broadside ballad than could sign their names. Writing was taught to those who remained in school from the ages of seven or eight, whereas reading was taught to those who attended up until the age of six and then were removed from school to join the labour force. Proclamation of laws in print was therefore within the reach of a reasonable proportion of the population.

Another thing that we have got to remember is that media work on two levels. The first is that a medium is a technology that enables communication and the tools that we have to access media content are the associated delivery technologies.

The second level, and this is important is that a medium has an associated set of protocols or social and cultural practices including the values associated with information – that have grown up around the technology. Delivery systems are just machines but the second level generates and dictates behaviour.[36]

Eisenstein’s argument is that when we go beneath the delivery system and look at the qualities or the properties of a new information technology, we are considering what shapes and forms the basis for the changes in behaviour and in social and cultural practices. The qualities of a paradigmatically different information technology fundamentally change the way that we approach and deal with information. In many cases the change will be slow and imperceptible. Adaptation is usually a gradual process. Sometimes subconsciously the changes in the way that we approach information changes our intellectual habits. Textual analysis had been an intellectual activity since information was recorded in textual form. I contend that the development of principles of statutory interpretation, a specialised form of textual analysis, followed Thomas Cromwell’s dissemination and promulgation of the Reformation statutes, complete with preambles, in print.[37]

From all this it would be fair to ask -  what’s the difference? What’s changed? All we’ve got is a bunch of machinery that allows us to do what we have always done which is to read and watch movies and do the same things that we did with radio or the television – the only thing is that it’s all been brought together – there has been a convergence of the various delivery systems.    And on the surface that’s perfectly correct because what you are talking about there is content.  You’re talking about the material that’s delivered rather than looking at the delivery system.

Another thing that Marshall McLuhan said – and he had a tendency to be a little bit opaque in some of the things that he said, and this is one of them – was that “the medium is the message”.  Now a lot of people have taken that to mean that McLuhan didn’t really care too much about content and he certainly did.  But whenever you are looking at the delivery of information by a means other than orally you got to examine the way in which it was delivered.

Using Eisenstein’s approach  I have managed to identify nine qualities (and there are probably more) which dramatically distinguish digital technologies from those that have gone before and they are

    •  Persistence,
    • Continuing change or what you could refer to as the disruptive element,
    • Dynamic information
    • Dissociative enablement,
    • Permissionless innovation,
    • Availability,
    • Participation
    • Searchability
    • Retrievability.

Within these nine qualities of digital technologies will ultimately lie most of the answers to the questions “where are we going?”

One sure thing follows from two of the qualities. The disruptive element which recognises a state of continual change, and permissionless innovation which means that new stuff is going to happen on the back bone of the internet. It all means we can’t be sure what’s around the corner.  But at least the qualities of new technologies, if considered, will at least give us some idea of possible direction.

 We look at the present through a rear-view mirror……

Now one of the problems that we have particularly in my field of the law is that you run up against a real tension with disruptive communication technologies that are continually changing as a result of permissionless innovation. The law is fundamentally a very conservative beast.  Lawyers really don’t like change.  The law must be certain, known and predictable. When you look at how lawyers work you can see this in a moment.

I’ll introduce this example with another of McLuhan’s adages “We look at the present through a rear-view mirror. We march backwards into the future.”[38]  Take the doctrine of precedent – using earlier decided cases to determine the outcome of a present problem.  Now if that is not an example of driving forward using a rear vision mirror I don’t know what is.  We look to the past to solve the problems of the future.  The difficulty is that many of the decisions of the past or the way in which problems were resolved in the past were based upon a society, a context and circumstances that existed then.  And when you have paradigmatic change – when the world is turned upside down – when you have that, the old rules cannot apply.

The other challenge to precedent that comes from the digital paradigm is this. Precedent depends upon the selection of a certain limited number of cases which are reported and which form the basis for the development of principle – a critical mass. In the print paradigm there was little problem with this. Law reporters and publishers carefully selected the cases that were going to appear in the reports. Unreported decisions were not seen as authoritative.

The qualities of the digital paradigm enable the collection and storage of vast amounts of legal information. Availability in vast data banks, searchability, retrievability and availability mean that vast digital libraries become the first research stop for the digital native lawyer. Because of the volume of legal information that is available, the critical mass allowed by print has been upset. Precedent will become an exercise in fact comparison rather than principle analysis.

Much of the foundation of the development of attitudes to information and its communication was developed within a particular information paradigm and that is the print paradigm.  We are now moving into the digital paradigm and the qualities that Eisenstein identified that applied in the print paradigm have been overtaken by the new qualities that I have suggested.

And so in the law what we do is that we anchor ourselves to the past while the world is changing around us.

Bringing it all back home…..[39]

Let me summarise the argument so far.

a) There are qualities that underlie the medium of communication of information

b) Those qualities dictate and influence behaviour and the development of social and cultural practices

c) The printing press – the first information technology – was an agent for a paradigm shift in relationships, behaviours and activities surrounding information. Many of our assumptions about information in general are grounded in the print paradigm e.g. stereotypes, “black letter law”, upper and lower case etc.

d) The printing press and the print paradigm was the basis for the development of concepts of copyright and was the specific target for the Statute of Anne.

e) The qualities of digital information systems are paradigmatically different from those of the print paradigm

f) These qualities are fundamentally altering our behaviours and values about and our uses, expectations and relationships with, information

 And the question that follows from this is whether or not a system of rules that were based upon and derived from the values that flowed from the print paradigm have any relevance in the digital paradigm. The law loses credibility if it does not accord with the underlying values of a community – the consent of the governed. To maintain a system of rules that run counter to community values is oppression.

This does not mean that creators should not have some kind of protection for their creation. It means that we are going to have to find some other form of justification for the protection of intellectual property and the extent of that protection.

There are a number of international conventions – and I don’t include IP specific conventions such as Berne, WIPO, TRIPS and the like – that provide for the general protection of intellectual property rights. The Universal Declaration of Human Rights demands protection of the right of

“[e]veryone … to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he or she is the author.”[40]

The 2005 General Comment[41] on the equivalent article in the International Covenant on Economic, Social and Cultural Rights[42] emphasises the link between this right and the proposition that authors should enjoy an adequate standard of living, and that they are entitled to just remuneration. Among other things, the document requires us to take seriously the idea that liberty interests can be furthered by participation in functional markets for creative work.

But we must remember that copyright is fundamentally grounded upon expression and we cannot overlook the provisions of Article 19 of the International Covenant on Civil and Political Rights (ICCPR) which explicitly protects the media of expression and information and was intended to include after a rising technologies.[43] Article 19 has come into sharp focus following the report by special rapporteur Frank La Rue who was considering whether or not access to the internet constituted a human right qualifying for protection under Article 19.

Copyright theory needs to recognise and accept that freedom of expression involves not only the imparting of a particular point of view but also the reception of information. And as I have suggested, the Internet facilitates those right and enhances and has had an impact upon the modelling of our information expectations and our consequent information associated behaviours.

A recent case has recognised the freedom of expression in the context of copyright. In Ashby Donald and others v. France[44] the European Court of Human Rights clarified that a conviction based on copyright law for illegally reproducing or publicly communicating copyright protected material can be regarded as an interference with the right of freedom of expression and information under Article 10 of the European Convention. Such interference must be in accordance with the three conditions enshrined in the second paragraph of Article 10 of the Convention. This means that a conviction or any other judicial decision based on copyright law, restricting a person’s or an organisation’s freedom of expression, must be pertinently motivated as being necessary in a democratic society, apart from being prescribed by law and pursuing a legitimate aim. The case unambiguously declares Article 10 of the Convention applicable in copyright cases interfering with the right of freedom of expression and information of others, adding an external human rights perspective to the justification of copyright enforcement. However, due to the important wide margin of appreciation available to the national authorities in this particular case, the impact of Article 10 however is very modest and minimal.

I am suggesting that the ICCPR or that a rights based approach should be a starting point to measure the strength and extent of any copyright protection afforded to one who engages in content expression. This approach to copyright is in line with the consequences and development of the new information paradigm. Ashby Donald v France gives weight to such an approach. The judgment in this case has confirmed that copyright enforcement, restrictions on the use of copyright protected works and sanctions based on copyright law ultimately can be regarded as interferences with the right of freedom of expression and information. This requires inevitably a balancing test between the rights involved. In terms of predictability of the outcome of such a balancing test, a clear set of criteria needs to be developed.

A rights based approach to copyright has been considered by Graeme Austin and Laurence Helfer[45] and Austin had this to say about the rights based approach:

 “Human rights certainly provide compelling reasons for being concerned about the public domain, reasons that go beyond getting more stuff more cheaply. Human rights law draws attention to a broader set of values: educational rights, environmental rights, the right to food, an adequate standard of health, indigenous peoples’ rights – with which any decent intellectual property system, any decent society, must contend. And human rights lawyers have crafted a powerful lens through which to analyse these issues – these are not just ad hoc distributive justice claims du jour. At the same time, however, human rights laws recognise the importance and the rights imperatives associated with functioning markets. Hence the recognition in many human rights instruments of the right of property.”[46]

Perhaps there should be consideration of a new copyright model that recognises content user rights against a backdrop of the right to receive and impart information and a truly balanced approach to information and expression that recognises that ideas expressed are building blocks for new ideas. Underpinning this must be a recognition on the part of content owners that the properties of new technologies dictate our responses, our behaviours, our values and our ways of thinking. These should not be seen as a threat but an opportunity. It cannot be a one-way street with traffic heading only in the direction dictated by content owners.

The reality is that the law will always be behind technology.  It will always be dealing with an historical problem.  The file sharing legislation in New Zealand is already out of date because one of the critical parts of the legislation is a definition of file sharing that ignores technology such as virtual private networks or magnet links.  Dr. Rebecca Giblin has already pointed out the legal inadequacies of some of the file sharing approaches that have been adopted in the United States.[47]

The law – like TPMs – is a very blunt instrument for a very nuanced area. My suggestion is the redevelopment and rethinking of broad principles that are in accord with the new paradigm rather than being anchored in an earlier one.

We Can Work it Out [48]

There are two ways in which Article 19 can be considered in developing a new model for copyright protection. The first is to measure the strength of any copyright rule against the right to receive and impart information and consider whether the rule is a proportionate limitation of the information right. The second approach, which is very similar to the first, is to use Article 19 as a basis to determine whether a copyright rule/protection is disproportionate to the amount of interference with the Article 19 right, and such a consideration would take place throughout the development of a rule.

In the second scenario, which is the one that I prefer, the engagement of Article 19 could occur at each of the following levels:

 a) policy formation

b) legislation

c) application/interpretation

d) litigation – for enforcement\infringment

 and therefore acts as an umbrella over all aspects of the lifecycle of a copyright rule from basis to enforcement.

Justification may be achieved by weighing competing interests. Any rule that interferes with the Article 19 right must be proportionate and limited only so far as is reasonable and necessary to fulfil the copyright owners’ interests. In addition a rights based approach avoids the absolutes that attach to property theory and the metaphors of “theft”, “piracy” and “trespass” that arise within that context.

Rather than operate as a default rule with a number of exceptions the copy right would fall within the wider scope of a justifiable but proportionate limitation on the freedom of expression. With this approach, fair use, for example, would not be an exception to the copy right. It would constitute an element of the subsisting/continuing Article 19 right.

The proposal may summarised in the following way:

 1. Copyright should not be seen as a property tight – either actual or inchoate

 2. A copyright owner’s rights should not be absolute.

 3. Copyright should be seen as an exception to the wider rights of freedom to receive and impart information guaranteed by Art. 19 ICCPR – and, given copyright does not engage until expression (according to current copyright theory),  it must be subject to the supremacy of Article 19.

 4. Interference with Article 19 rights requires justification by the “copyright owner”.[49]

 5. Once interference with the Art 19 right is justified, any restrictions to the general right and any advantages that accrue for the benefit of the “copyright owner” may be permitted to the extent that they are:

a) necessary to meet the copyright owners interests and justification and

b) proportionate in terms of the extent of the interference

 6. Concepts such as fair use, protection term, remedies (and their extent) fall within the tests of necessity and proportionality rather than exceptions to a copyright owner’s right.

 7. The following brief examples which are presently implicated in current copyright models may demonstrate the approach:

a) Access controls that have no copying implications would not be justifiable.

b) Copying that is necessary for a technology to operate could not be considered justifiable.

c) Format shifting (of any medium) could not be justified in that a royalty had been paid at point of sale.

 We want the World……

It may well be that it will take an equivalent or parallel 15 years as with the case between 1695 and 1710 for us to develop a new copyright solution.  My suggestion to you is that we must recognise that the values of the digital native regarding information have been moulded by the technologies that are available and that will continue to develop – technologies that make information instantly available; that make circumvention of restrictions easy; that allow for the wide spread distribution of information in digital format that challenges the necessity for regionalisation of content; that is an “information now” environment – we want the world and we want it – now![50]  Perhaps a rights based approach may be a starting point.


[1] For a very early reference to a concern about intellectual property in dishes invented by caterers or cooks in the Greek colony of Sybaris see the Greek historian Phylarchaus quoted by AthenaeusThe Deinosophists (C. Burton Gulick trans.) Heinemann 1927  p. 348-9; see also Martial “Rumour asserts, Fidentinus, that you recite my works to the crowd, just as if they were your own. If you wish they should be called mine, I will send you the poems gratis; if you wish them to be called yours, buy my disclaimer of them.” (Martial, Epigrams, trans. Walter C. A. Ker (London and New York, 1920-25), I, 46-47. See also the protection granted to Brunelleschi by the Florentine Republic on 19 June 1421, along with the patent statutes of the Venetian Republic in 1474. Interestingly most of the protections for authors’ works in Europe came after the introduction of the printing press – Sabellico’s protection for his book Decades rerum Ventarum was granted in 1486 and Petrus Franciscus de Ravenna’a grant for Foenix was made in 1491. A French system of privileges started in 1498.

[2] For a detailed examination of the activities of the Stationers and their role in the regulation of printing activities in England 1475 – 1642 see Chapter 3 D.J. Harvey The Law Emprynted and Englysshed (PhD thesis, unpublished) available at http://www.scribd.com/doc/103191773/The-Law-Emprynted-and-Englysshed-The-Printing-Press-as-an-Agent-of-Change-in-Law-and-Legal-Culture-1475-1642 (last accessed 29 January 2013)

[3] By the 1440s the Stationers were known as the “Mistery of Stationers” although they were known as Stationers before that. In 1407 they were delegated with the task of providing copies of religious books that had been approved by the authorities following the suppression of the Lollards – a group of religious non-conformists led initially by John Wyclif.

[4] The Decrees were in fact the decisions of the Court of Star Chamber designed to address the various issues that had arisen in a number of cases involving complaints of printing patent infringement and aimed to set in place rules and structures so that patent holders would continue to receive exclusivity.

[5] See Harold Love Scribal Publication in Seventeenth Century England (Clarendon Press, Oxford, 1993).

[6] Edmund Plowden Les comentaries, ou les reportes de Edmunde Plowden vn

apprentice de le comen ley (Richard Tottell, London, 1571) STC 20040.

[7] Edward Coke, Les reports de Edward Coke L’attorney generall le Roigne de diuers resolutions & iudgements donnes auec graunddeliberation, per les tresreuerendes iudges, & sages de la ley,de cases & matters en ley queux ne fueront vnques resolue, ouaiuges par deuant, & les raisons, & causes des dits resolutions

& iudgements, durant les tresheureux regiment de tresillustre &renomes Roigne Elizabeth, le founteine de tout iustice, & la viede la ley (Adam Islip, London, 1600) STC 5493. 11 subsequent volumes were printed under Coke’s supervision. The twelfth volume was published posthumously. See also the publication of The first part of the Institutes of the lawes of England. Or, A commentarie vpon Littleton, not the name of a lawyer onely, but of the law it selfe. (Adam Islip for the Stationers, London, 1628) STC 15784 which became a standard text on land law.

[8] In addition manuscript circulation allowed the dissemination of unpopular or contentious political or religous content within a limited audience away from the critical gaze of print licensors. The recognition of the power of the manuscript and its circulation among coteries can be seen in the activities of the Crown to secure the libraries of Thomas Norton, Sir Robert Cotton and Sir Edward Coke after their deaths.

[9] (1769) 4 Burr. 2303, 98 ER 201.

[10] (1774) 2 Brown’s Parl. Cases 129, 1 Eng. Rep. 837; 4 Burr. 2408, 98 Eng. Rep. 257 ; 17 Cobbett’s Parl. Hist. 953 (1813).

[11] 1 Wm. Blackstone 301, 96 ER. 169 [1761]. Reargued: 1 Wm. Blackstone 322, 96 ER 180 [1762].

[12] Although they could manually transcribe a book should they want to, although that would amount to copyright infringement.

[13]  239 F.3d 1004 (2001).

[14] 180 F.3d 1072 (9th Cir. 1999).

[15] 273 F. 3d 429 – Court of Appeals, 2nd Circuit 2001.

[16]  545 U.S. 913 (2005).

[17] [2002] 55 IPR 429 (Ch).

[18] [2004] EWHC 1738 (Ch).

[19] (2003) 129 FCR 472.

[20]  (2005) HCA 58.

[21] 464 U.S. 417, 455, 104 S.Ct. 774, 78 L.Ed.2d 574 (1984).

[22] [1987] 3 All ER 151.

[23] Charles Clark ‘The Answer to the Machine is in the Machine’, in: P. Bernt Hugenholtz (ed.), The Future of copyright in a digital environment : proceedings of the Royal Academy Colloquium organized by the Royal Netherlands Academy of Sciences (KNAW) and the Institute for Information Law ; (Amsterdam, 6-7 July 1995), (Kluwer Law International, The Hague, 1996).

[24] Sony v Stevens above n. 19.

[25] Above n. 16.

[26] Above n. 17.

[27] Above n. 8.

[28] Marshall McLuhan Understanding Media: The Extensions of Man (Sphere Books, London, 1967).

[29] “Welcome to the Machine” Pink Floyd Wish You Were Here (1975 Pink Floyd Music Publishers Ltd., London, England) Track 2

[30] “But the Banshee brouhaha is yet another signal that modern viewers want more pick-and-choose flexibility. And also how hard it is to stamp something out on the intrawebs. For as I type, the first episode of Banshee is still available full and free to Kiwis through Cinemax’ website here “ (http://www.cinemax.com/banshee/video/?bctid=2083432700001)

Chris Keall “Sky TV gives HBO a nudge after hot new series Banshee put free online for Kiwis”  Keallhauled National Business Review Online 16 January 2013 http://www.nbr.co.nz/opinion/sky-tv-cops-role-youtube-episode-banshee-being-blocked-new-zealanders-CK (last accessed 16 January 2013)

[31] For a discussion of “spoilers” and television see Henry Jenkins Convergence Culture: Where Old and New Media Collide (New York University Press, New York 2008 especially Chapter 1 “Spoiling Survivor – The Anatomy of a Knowledge Community” at p. 25 et seq.

[32] For a pessimistic view of the “rewiring” effect see Nicholas Carr “Is Google Making Us Stupid” The Atlantic July/August 2008  available on-line at http://www.theatlantic.com/magazine/archive/2008/07/is-google-making-us-stupid/306868/ (last accessed 17 January 2013) and for a detailed approach see Nicholas Carr The Shallows: How the Internet is changing the way we think, read and remember (Atlantic Books, London, 2010).

[33] Above n. 27.

[34] The Compleate Copyholder (T. Coates for W Cooke, London,1641) Wing C4912.

[35] Cited by J.A. Cochrane Dr Johnson’s Printer: The Life of William Strahan (Routledge and K Paul, London, 1964) p.19 at n.2.

[36] Lisa Gitelman “Introduction: Media as Historical Subjects: in Always Already New: Media, History and the Data of Culture (MIT Press, Cambridge, 2008) p. 7.

[37] This is a very bald assertion. The argument is a little more nuanced and involves a consideration of the use of the printing press by Cromwell, the significant increase in legislative activity during the course of the English Reformation, the political and legal purpose of statutory preambles, the advantages of an authoritative source of law in printed form for governing authorities, all facilitated by underpinning qualities of print such as standardisation, fixity and dissemination.

[38] Marshall McLuhan and Quentin Fiore  The Medium is the Massage: An Inventory of Effects (Penguin, Harmondsworth 1967).

[39] The title of Bob Dylan’s fifth album released 27 March 1965 and released by Columbia.

[40] Universal Declaration of Human Rights GA Res 217A, A/810 (1948) art 27.

[41] Committee on Economic, Social and Cultural Rights General Comment No 17: The Right of Everyone to Benefit from the Protection of the Moral and Material Interests Resulting from Any Scientific, Literary or Artistic Production of Which He Is the Author E/C12/2005 (2005) art 15(1)(c).

[42] International Covenant on Economic, Social and Cultural Rights 993 UNTS 3 (opened for signature 19

December 1966, entered into force 3 January 1976).

[43] Article 19 reads as follows:

1.             Everyone shall have the right to hold opinions without interference;

2.             Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

3.             The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities.  It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

(a)           for the respect of the rights or reputations of others;

(b)           for the protection of national security or if public order or of public health or morals.

[44] ECHR Appl. nr. 36769/08.

[45] Laurence R Helfer and Graeme W Austin Human Rights and Intellectual Property: Mapping the Global

Interface (Cambridge University Press, New York, 2011).

[46] Graeme W Austin “Property on the Line: Life on the Frontier Between Copyright and The Public Domain” [2012] 43 VULR 1 at 14.

[47] Rebecca Giblin Code Wars: 10 Years of P2P Software Litigation (Edward Elgar Publishing,  2011); Rebecca Giblin , “On the (New) New Zealand Graduated Response Law (and Why It’s Unlikely to Achieve Its Aims)” (2012) 62(4) Telecommunications Journal of Australia 54.1-54.14. Available at SSRN: http://ssrn.com/abstract=2198116 (last accessed 17 January 2013).

[48] “We Can Work it Out” John Lennon and Paul Mcartney 1965, released as the B-Side to the single “Day Tripper”

Upon reflection, the lyrics may seem apposite to the current problem:

“Try to see it my way

Do I have to keep on talking till I can’t go on?

While you see it your way

Run the risk of knowing that our love may soon be gone”

[49] I use the terms “copyright” and “copyright owner” in this context only because I have not devised a label that aptly fits within the new model and that is not clumsy.

[50] “When the Music’s Over” Jim Morrison, Ray Manzarek, Robby Krieger and John Densmore (The Doors)  “Strange Days” The Doors Elektra Records 1967 Track 10.

7 comments
  1. Thank you Your Honour Judge Harvey, for sharing.

    It was grounding to review the copyright backstory. I appreciated your suggested “fifteen year” span in which to find workable solutions for generations to come – on behalf of all sides of the copyright/IP debate.

    Early in my undergraduate degree (multimedia/media studies) I wrote a paper arguing that software developers (for HTML WYSiWYGs, and digital design) had an economic investment in allowing students to duplicate and disseminate CDs of crack copies of software compilation, to help train tomorrow’s professionals. I recognised then, before the advent of Education Version software that those developers certainly did have the capability to develop technologies to inhibit the cracking of software registration processes. ‘My bad’ though, for stopping at frivolous inspiration, naming my essay ‘Burn Baby Burn’!

    Nowadays, I am heartened whenever I read that fans of contemporary music are happily paying for legal copies of individual tracks, now the means to do so has become easy (and shall become much easier as time goes on). In my view, encouraging ‘digital natives’ to do the right thing by content creators as a moral choice, indeed an obligation, and a simple matter of education; the work of any artist involves solving problems, so concerted ways to accomplish education goals are many and varied, given the conscious organisation of creative resources: skills-based collaborations, temporal, and financial.

    Similar to my early offering that highlighted a technological capability solution, again I would tend to leave the option of technological innovation firmly on the discussion table, at least for as long as it’s needed to protect current income streams. Stopping the loopholes that arise from any yet-to-be-invented audio file type, would surely be a realistic option, comparable at least to the costs of pursuing interventions against peer-to-peer (P2P) agencies. A simple technology begets technology perspective, if you will.

    Meanwhile, at least the music industry, a significant stakeholder on an international stage in the creative contents arena, already has efficient and robust structures in place for royalty collection/ payment disbursement for recorded, broad- and narrowcast and performance (copy) rights.

    Thank you too, Your Honour, for the ‘rear vision mirror’ perspective. These are weighty issues. These are still early days.

    Best regards!
    Claire

  2. Kevin said:

    typo = property tight
    Thanks for lengthy expo.
    Would be nice it you could include 200 word summary at the top

  3. Berry Zondag said:

    Hi David, how’s things?
    I see you’re basically still with your thesis that the “digital age” repeats a technological shift comparable to the development of the printing press, i.e. the problem is technological first and foremost.
    How about taking a different approach and suggest that an “author” (of whatever format of an ‘original’) who doesn’t want his work copied unless there are some controllable (or rather marketable) restrictions, simply has bad luck in our day and age and should find another job? End of the day, and as you say, people are well prepared to pay (restrictions or not), but simply do not wish to be subjected to the straitjackets that are built around them by those not just looking for solutions in their rear view mirrors, but who are living in those mirrors.
    Best regards, Berry

  4. Dear Judge Harvey,

    I work for ARTICLE 19, an international free speech organisation based in London. We recently launched international principles on the balance between freedom of expression and copyright in the digital environment. The principles are grounded in our knowledge and experience of international human rights standards. I believe you will find them relevant to this post. The principles are available here: http://www.article19.org/data/files/medialibrary/3716/13-04-23-right-to-share-EN.pdf

    See also our background paper on this issue:
    http://www.article19.org/data/files/medialibrary/3716/13-04-25-share-BACKGROUND-PAPER.pdf

    I hope you find those interesting.

    Best regards,

    Gabrielle

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