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IN THE TEACHING
of copyright, it is usually said that
copyright is an economic right. In Arnhem
Land, they think otherwise. In 1990, I
attended a meeting of Aboriginal artists
in Maningrida. These artists had been
involved in a copyright infringement case
concerning the unauthorised reproduction
of works of art on T-shirts. The case
had settled, and the purpose of the meeting
was to discuss the division of the spoils.
The case involved a number of artists
and different infringements by the same
infringer.
As counsel on behalf of the artists, I
suggested to those present that the best
way to divide up the settlement monies
was on a pro rata basis: that is, the
artist whose work had been copied the
most would get the most money, and so
on. This advice was noted, and I was asked
to leave the room. This was not a direction
that I was accustomed to receiving from
my own clients. They said they wanted
to discuss the matter without any professional
input or intrusion. Some time later, I
was called back into the meeting and informed
that my suggestion of a pro rata share
would not be adopted as it was culturally
inappropriate, i.e. Western bullshit.
Instead, each artist would share equally,
no matter how extensive or otherwise the
infringement of their work. I was told
that this was desirable from an Aboriginal
perspective because everyone had been
harmed equally.
Occasionally — probably all too rarely
(from a copyright perspective) —
one is reminded of the cultural aspects
of copyright.
The
Big Copyright Picture
Taking the big copyright picture, one
of the fundamental debates in contemporary
copyright has been concerned with the
setting of boundaries between the public
and private domain. There is an easy connection
to make between the existence of property-based
monopolies and privilege. The leading
rights owners and users in the world today
are also among the leading companies of
the world: Microsoft, News Corporation,
Sony. These companies pursue the management
of content as a policy, using information
in the broadest sense of the term as the
raw material of their commercial endeavours.
Publishing and bookselling are well established
as multimedia businesses, with the shelves
of even the finest bookshops displaying
more and more CDs and DVDs. The interests
of publishers and film producers are aligned
within media houses, such that decisions
to take on books for publication are undoubtedly
influenced by opportunities to exploit
the highly lucrative film and television
markets.
We often take it for granted, but copyright
is at the heart of a lot of big business,
including business conducted across a
world without boundaries. The big businesses
I have in mind have significant technology
infrastructures, based on software, hardware
or telecommunications. They are hungry
for content. Copyright governs key aspects
of their infrastructure, as it does the
content they need to maximise the opportunity
of the infrastructure.
The economic consequences of this monopoly-type
power can be seen at an international
level. For example, the word-processing
and data-management programmes and operating
systems of Microsoft are basic tools of
worldwide communication. Access to them
requires payment of licence fees, which
is part of ordinary business expense in
the First World, and an unmanageable impost
in the Third World. Microsoft’s programmes
are not part of some benevolent grant
to the world: they are private property
and managed as such. Revenue is extracted
where it is available, no doubt at varied
rates, but, wherever there is technological
infrastructure, there are licence fees
to be mined.
This impost on the developing world has
its defenders, most notably that person
known by the disarming title of the US
Trade Representative, who, if the newspapers
are any guide, travels the world threatening
dire consequences if US copyright, patent
and other rights are not respected. Countries
such as China and Indonesia are expected
to embrace Western copyright law systems,
which are meant somehow to allow major
US copyright owners to bring proceedings
in these distant lands to prevent the
unauthorised copying of software, music
or films. If the system, as introduced,
produces poor results or no result, the
much-travelled Trade Representative will
certainly, as has been done on many occasions,
threaten death by a thousand trade cuts.
In recent times, we have seen the connection
be-tween the offer of ‘free trade’
by the US to Australia, in return for
the alteration of key aspects of the Australian
intellectual property system, including
the extension of copyright term from fifty
years after the life of the author to
seventy years. This extension of term
was largely intended to assist the film
industry, not least Disney and Warner
Brothers.
One can identify quite easily the legitimate
concerns felt by US copyright owners faced
with rampant piracy. They lose billions
of dollars in revenue to piracy. But there
is a context worth reflecting upon. The
developing world has the First World put
before it as the shining example of all
things good and achievable, but hopes
are dashed at the high-priced counters
of the Disney and other such stores that
trade in authentic First World products.
The status symbols of the modern age are
founded on trademarks. The clothing industry,
for example, is notorious for the production
of the same or similar products from the
same factories bearing different brands
with dramatic effect on customer perception
and on price.
Access by students in the developing world
to many of the key tools for intellectual
development is often beyond reach. Schools
cannot afford software. Students and teachers
cannot afford books or access to the Internet
(or, even more telling, their countries
lack the infrastructure to provide adequate
telephone cabling). It is not the obligation
of copyright owners to subsidise the remedying
of the inequities of the First World–Third
World disparity, but, at the same time,
knowledge-based dis-parities, like disparities
in wealth, are increasing before our eyes.
The imperative of access to copyright
works in developing countries increases
as the resources to procure access remain
as unavailable as ever.
In the post-colonial period, to use a
dated term, a new cultural dependency
is being established, as the concept of
the worldwide copyright market takes firmer
hold. The revolt at street level can be
readily felt, with rampant trading in
pirated goods (particularly computer software,
CDs and DVDs) often seemingly unchecked
throughout the Third World, and very much
so in our region. In the 1960s and 1970s
Third World régimes used to nationalise
industries to try to protect themselves
economically. The intangible copyright
right cannot be nationalised, but it can
be very actively infringed (and no doubt
with the tacit or ‘blind eye’
support of many governments, or at least
the business acolytes of government, in
the Third World). Could it be that the
clamour for respect for copyright is being
widely, although quietly, dismissed as
a policy statement of the First World
in favour of further cementing its economic
dominance? With no more ‘free’
land to conquer, the intangible property
régimes are creating new oppor-tunities
for economic expansion. One imagines that
employment opportunities in years to come
will remain in the office of the US Trade
Representative.
The issue raised is a very basic one in
intellectual property law and has many
strands — the connection between
access to knowledge and entertainment,
and property rights. We are dealing with
the right, as is claimed, to control the
use of forms of knowledge, some of which
are of great importance to the running
and well-being of most communities. The
tensions in the debate are heightened
by the increasingly apparent notion of
the collapse of fence-like national boundaries
in which the copyright industries, particularly
publishing, have operated over many years.
International
Nature of Copyright
Copyright law today has its modern genesis
in the Berne Convention, established nearly
120 years ago, which has increasingly
embraced the copyright nations in a version
of a unified system of copyright protection.
The Convention has created norms in the
approach to copyright. Copyright is by
its nature international in focus.
National boundaries, insofar as they concern
copyright, have been challenged, at least
from an Australian per-spective, by two
key developments: the Internet (or the
unrestricted and instantaneous international
dissemination of copyright works); and
the collapse of restrictions on parallel
importation (being the importation of
authentic copies of works from other than
authorised sources). The second of the
developments, which is of particular relevance
to the market for books, shows the close,
in fact direct, link between copyright
and economics.
The restriction on parallel importation,
enacted under Section 37 of the Copyright
Act 1968, provided a régime for
allowing copyright owners and their exclusive
licensees control over the importation
and sale of authentic products containing
copyright works, including packaging and
labelling. Thus, the market for imported
books could be regulated by the rights
owners. These restrictions have been removed
(largely at the behest of the competition
authority, which complained about the
effect of the restriction in particular
on distorting the price of, and access
to, imported books). The result has been
the reinforcement of the concept of one
international market place for copyright
works in place of many national markets,
with a central office directly controlling
the worldwide dissemination of copy-right
works (rather than many regional branch
offices).
Thus, important new books by local authors
can be published in a single English-language
international edition, copies of which
may be freely imported with no effective
restriction. Booksellers can also import
popular foreign titles without waiting
for supply from local distributors. While
there are formal requirements concerning
the entitlement to import referred to
in the Copyright Act, they are cumbersome
and impractical, and not known to have
been enforced. Consequently, for practical
purposes at least, local editions of important
foreign works may increasingly become
a thing of the past.
Access to Knowledge
At a local level, a debate rages, with
obvious cultural implications, about access
to knowledge through library resources,
major public collections of art and the
Internet. Free access to knowledge is
perceived widely as a right, like free
public access to clean air or water, such
as it is. Educational institutions, libraries
and public galleries complain about copyright
owners imposing unreasonable financial
fetters on access to public collections
through, for example, controls on photocopying.
In excess of $60 million per year is collected
by Copyright Agency Limited, which manages
such revenue from photocopying (mostly
under statutory licences) on behalf of
copyright owners (arising from around
one billion individual pages of photocopying
by educational institutions). Creators
and investors in creativity (such as publishers)
demand and are obtaining their return
for effort, ingenuity and investment,
and are increasingly realising such returns
through the collective management of copyright.
Copyright owners demand, for example,
that there be only the most limited photocopying
without remuneration. Photocopying by
tertiary institutions has been subject
to remuneration arrangements pursuant
to statute for some years, which has been
the subject in recent years of much concerned
comment by such institutions. But a lot
of remunerable photocopying still goes
on without control or payment, such as
by private businesses. By a lot, I mean
an unfathomable amount. The demand for
payment unquestionably creates a fetter
on access. But for their part, copyright
owners seek to increase their opportunities
for remuneration, and resist being left
behind in the technological race that
makes copyright works more available,
or should I say more ‘copiable’,
than ever before. Copyright owners insist
that advances in copying and transmission
technologies should not be to their disadvantage,
and that they should not be prejudiced
in asserting their copyright rights by
the case for increased access made in
an environment of rapid developments in
technology.
The
Challenge of the Internet
Looking to recent advances in computer
technology, the downloading of content
from the Internet raises a number of profoundly
challenging questions, as the Internet
in particular cannot be limited by national
boundaries, and yet legal systems concerning
the enforcement of intellectual property
interests are fundamentally national in
character. Can copyright owners invent
a system of international collection,
and how would it be managed? What of enforcement
by reference to national laws? How does
a copyright owner in Australia prevent
copyright infringement on the Internet
by unauthorised reproduction in Chile?
Perhaps the time is approaching, if it
has not already arrived, when the notion
of copyright enforcement by individual
copyright owners under national laws is
under profound challenge, due to the internationalisation
of copyright usage and the ever-rising
cost of litigation itself. It is difficult
to see how enforcement of copyright rights
can be effectively managed other than
by large corporate copyright owners or
by international networks of collecting
societies.
There is much work awaiting domestic and
international copyright reformers in the
coming years, as the wrestling match between
rights owners and users enters a particularly
willing and significantly transnational
phase.
Corporatisation of Copyright
These contemporary developments clearly
sit within an historical framework. The
point of copyright protection has undergone
a radical transformation through the course
of the past 100 years. The individual
copyright owner of note today almost inevitably
cedes his or her copyright rights to corporations
that exploit copyright. The twentieth
century has seen what could be fairly
described as the corporatisation of copyright,
and a significant shift away from the
dominant nineteenth- and early twentieth-century
idea of copyright as a creator’s
right. The major users of copyright today
have vast transnational interests, such
as the major publishing companies of the
world, which transcend notions of national
systems for the protection of rights.
Copyright collections at a national level
are increasingly managed by sophisticated
collecting societies (with extensive international
associations), such as Copyright Agency
Limited for photocopying, Screenrights
in relation to video and digital recording
by educational institutions, and AMCOS,
PPCA and APRA in relation to music. In
the mid-1990s the federal government assisted
in setting up a new visual arts collecting
society, VISCOPY, which brought the poor
cousin of copyright, the visual arts,
into the collections stream. Large amounts
of money are collected by these organisations
for distribution to copyright owners,
nearly all of which would remain uncollected
without systems of industry-wide management.
These organisations operate within inter-national
networks, providing reciprocal services
to the members of associated organisations
in other countries. They have enriched
some individual copyright owners and provided
a useful source of supplementary financial
returns for institutional copyright owners.
Authors
Left Behind
Of course, one should not lose sight of
the genesis of this corporate activity
— the creative endeavours of individuals
— protected by copyright laws. Many
of these individuals struggle as much
as ever to make a living. It is one of
the peculiar ironies of the modern age
of copyright that the administrative and
corporate infrastructures surrounding
the copyright industries continue to grow
ever larger and more prosperous, while
creators, such as visual artists and writers
(the source of the raw material of the
copyright industries), struggle as ever.
Certainly, those at the top of their creative
fields have never been remunerated as
well as they are today, but the gap between
privilege and disad-vantage amongst creators
remains as conspicuous as ever.
Despite the many advances in the manner
of exploitation of copyright over the
last quarter of a century, it is remarkable
to consider that studies on the welfare
of creators show consistently that artists
and writers are, relatively speaking,
as poorly paid as ever. The consideration
of why this is the case, and how this
anomaly might be remedied, focuses attention
directly on the negotiating skills and
wherewithal of individual creators in
dealing with users of their works.
Writers provide the raw materials for
the publishing industry and all too often
trade too cheaply with their rights. Publishers,
while no doubt meaning to do the right
thing by their authors, are not usually
famous for being overly benevolent to
their suppliers. Writers, particularly
in the early stages of their careers,
are invariably fearful about negotiating
over the use of their rights because they
do not want to lose the contract they
have been offered. This undervaluing of
writers’ efforts is a central issue
in the failure of status and influence
of writers, with the author’s passion
for his or her work stopping at the keyboard.
The concern is not simply one of maximising
financial returns. Effective contracting
raises issues of the protection of authorial
and even cultural integrity. Putting aside
financial considerations, what of the
pressures to maintain cultural integrity
in the age of corporate copyright?
From an author’s point of view, the
publishing contract provides a chance
to manage the integrity of the text. This
is often not a disputed issue. Publishers
and authors share a common objective in
this regard, in most cases, but there
can be substantial differences about the
alteration of text that raise real questions
of authorial integrity. The issue here
is the protection of the voice of the
individual author. There can also be relevant
issues of uses of subsidiary rights, such
as merchandising, or even obligations
to exploit rights granted under the agreement.
Cultural
Significance of Copyright
Can it be said that corporate perspectives
on copyright have impeded the growth and
development of culture? Taking a literary
perspective, with the possibilities for
the exploitation of copyright rights being
so extensive, does it influence a publisher’s
judgment in preferring to publish one
book over another that rights exploitation
opportunities will favour the publication
of one over the other? Has the rich marketplace
for copyright returns made publishers
focus more than ever on financial rather
than cultural returns? The role of marketing
in the business of book publishing is
as dominant as ever, such that agents
are familiar with the sales and marketing
departments of publishing houses becoming
involved with key publishing decisions,
including most particularly the decision
to publish a work in the first place.
To put the issue in an unsettling context,
does the business of publishing first-time
novels by promising Australian writers
or works of poetry (and the cultural wellspring
tapped by giving emphasis to such publishing
— as seen in the heyday of Australian
publishing during the 1970s and 1980s,
particularly led by Penguin) seem all
the more marginal for the fact that there
are greater financial returns than ever
to be had in publishing ‘popular’
writing (and pressure from shareholders
to chase those available returns)?
A small number of best-selling writers
can be enough to sustain worthwhile publishing
businesses. They make more money than
has ever been the case from such writing.
Their success puts the paltry returns
from new writing into perspective and
may have served to bury it. Much of this
success, as it happens, derives from the
shrewd and sophisticated management of
rights in a ‘rights-aware’ age.
More than ever, large publishing businesses
are gearing themselves to focus on the
management of rights. Some of them are
part of media conglomerations with associated
companies engaged in film and television
production, and the publication of newspapers
and magazines. Films of books sell books;
books sell film tickets — and so
on.
The publishing market is a highly competitive
international market. This is well demonstrated
by the international book fairs that dominate
world publishing calendars. The Frankfurt,
London, Bologna and US Book Fairs are
vast events, which set the eyes glazing
with the sheer amount of work being published
at any one time. The journey of the book
from one of thousands of stalls at Frankfurt
to the bedside table of the reader is
one of the truly remarkable journeys in
modern copyright.
While works in English are at a conspicuous
advan-tage, they have to compete with
one another in the main publishing markets
of the world, as well as with works in
translation (the sheer scale of the German,
French and Spanish language publishing
provides one of the more extraordinary
experiences of a visit to the Frankfurt
Book Fair), and then with the vast array
of other products that make calls on the
recreation time of consumers. Marketing
is unquestionably the key ingredient in
the business of making certain books stand
out from the massive pack.
Creators
Retain Responsibility for Cultural Integrity
For all of the concentration of effort
on the market for the exploitation of
copyright and the sale of works themselves,
it is the lonely and unremunerated creator
who unquestionably retains primary responsibility
for the protection of cultural integrity.
Creators and their patrons can destroy
their own markets by paying insufficient
attention to the integrity of their work.
The excesses of marketing can drain the
consumer’s sense of wonderment at
the creator’s ingenuity. The instantaneousness
of access to newly released works and
the expectation of rapid loss of interest
after a period of intense exploitation
contribute to a shortening of the attention
span. Films, music and books come and
go in a flash. Books occupy shorter shelf
time in bookshops than has ever been the
case. Films are released into cinemas
for just a few weeks, then are backlisted
into video shops and cable release. The
sheer haste and relentlessness of the
contemporary marketplace for the expression
of ideas must surely be having a major
impact on the attention span of the ever-challenged
consumer. We unquestionably need to slow
down.
Copyright owners have a fundamental obligation
to be attentive to the responsible exploitation
and management of their rights. They need
to give careful attention to their copyright,
for financial reasons certainly, but also
for reasons of artistic and even cultural
survival. Abandoning the cultural controls
made possible through copyright is tantamount
to abandoning the very sense of integrity
that inspires the creative spirit.
Creators often have one contract to get
it right, with the initial passage of
rights to a publisher, music company,
or television or film producer. Once control
over the integrity of a copyright work
is lost, the creator has parted company
with the impetus that has inspired the
work and possibly the impetus to inspire
works in the future. An improperly or
thoughtlessly exploited work is a millstone
around the author’s neck, an embarrassment
that sometimes may only be redressed by
turning one’s back on the mismanaged
work or attempting to revive the creative
spirit in the next work.
The importance of this first contract
for the exploitation of a carefully honed
copyright work cannot be over-emphasised.
Enormous prosperity, wealth and power
passes to the acquirers and users of copyright.
The licensing or assignment contract provides
what may be the only opportunity for the
creator to get the most out of a work
in financial terms as well as having some
say over the future exploitation of the
work. In the case of authors, there are
the particular issues of management of
text and appropriate attribution, as well
as participation in approaches to exploitation
(including the giving of full effect to
the author’s enthusiasm for full
exploitation, rather than the banking
of rights, as can occur in a busy publishing
house).
Moral rights, which protect rights of
attribution and integrity, offer some
chance of extending the creator’s
negotiating muscle after that first contract,
but the moral rights recently introduced
into Australia’s Copyright Act have
an important rider of the capacity for
consent to waiver, which can be —
and is — easily extracted by powerful
publishers and other users of copyright
flexing their negotiating muscle. The
introduction of moral rights has at least
drawn attention to issues of integrity
and attribution as matters of substance
when dealing with rights.
Creators have the task of getting the
best out of their assignment or licensing
contract. In most cases, it is a stumbling
exercise overwhelmed by self-doubt and
ignorance. Lawyers have their own special
role to play here (as do literary and
artists’ agents), reinforcing the
creator’s confidence in his or her
own work. Loss of control is often an
underestimated consideration in the checklist
of things that can go wrong for the artist.
The responsible management of copyright
works dictates that more than ever —
in a world tending towards centralised
markets for ideas, knowledge, entertainment
and recreation — artists need to
exercise particular care to manage the
individuality of their expression (as
protected by copyright). As I have tried
to emphasise, I believe that it is very
much the creator’s responsibility.
Badly managed art is bad art. This point
is well made in the Aboriginal context.
The central issues raised by this essay,
being the right to possess forms of knowledge
and the obligations flowing from this
right, are exemplified well by the Aboriginal
art conundrum, as an ancient art form
meets a dynamic marketplace.
Aboriginal art is part of the corpus of
knowledge of age-old communities. The
notion of individual ownership, while
widely practised at a market level, is
not consistent with tribal or clan notions
of communal ownership. The community ‘owns’
all the productive output of its members,
and artists and others who deal in community
rights do so as custodians or trustees
on behalf of their people. This point
was emphasised by Justice von Doussa of
the Federal Court in the 1998 case of
Bulun Bulun v. R & T Textiles, which
recognised a fiduciary relationship between
tribal artists and their clan groups —
to properly manage their important works
in the interests of these clan groups
(which the judge identified as beneficiaries).
When copyright comes to bear on the situation,
the proposition of individual ownership
is imposed as a veneer on more complex
relationships of ownership and management.
Such is the expedient nature of our copyright
law as applied in the Aboriginal setting.
However, the concept of copyright, or
the right to restrict the use of forms
of expression of knowledge, is a fundamental
part of the organisation of human society.
Aboriginal customary law incorporates
ideas of ceremonies, stories and dance
belonging to particular communities, and
with no use to be made of them without
appropriate tribal permission (under sanction
of spearing — something like the
tribal equivalent of what is referred
to in the Copyright Act as conversion
damages). The sense of ‘caring for
culture’ has undoubtedly added to
the regard in which Aboriginal art is
held.
Ancient Hebrew societies have required
that rabbinical authority sanctions the
form and content of the recounting of
the Five Books of Moses for use in prayer.
Every torah scroll (containing the Five
Books) is prepared to an exacting and
age-old formula, with highly trained scribes
hand drafting every word in the most painstaking
exercise in cultural preservation. Strict
rules also apply to the recounting of
the Koran and the liturgy of the orthodox
churches. The main belief systems of many
cultures are based on the ‘rule of
the book’. There is, by contrast,
no more potent imagery of the passing
of orderly society, or of the end of belief
and values, than that of the Nazis burning
books in the courtyard of Humboldt University
in Berlin (the academic home of Albert
Einstein no less).
Respect for the ‘form of expression’
is at the very heart of religious belief
and practice. The essence of the Creator
is captured by the speaking of a word
or by the uttering of a phrase. Respect
for properly managed copyright is a hallmark
for civilised society. It is getting the
balance right that is so demanding, and
this raises many challenges for the creators
and users of literary, artistic and musical
works.
Jerry
Lewis in Wonderland
A parting tale from my contact with traditional
Aboriginal people about fragile social
structures and copyright.
Almost my very first brief as a barrister
required me to travel to Garmedi outstation
in central Arnhem Land to take instructions
from the artist Bulun Bulun for the copyright
infringement action involving T-shirts,
the case I mentioned at the outset. I
arrived in Garmedi after a long day flying
from Melbourne to Darwin, and then Darwin
to Maningrida, and then travelling by
road from Maningrida to Garmedi. It was
about seven p.m. when we arrived. Bulun
Bulun asked if my entourage had brought
any tucker. We had prepared for the trip
(involving an overnight stay at Garmedi),
and had bought some tins of baked beans
and spaghetti. Bulun Bulun said we should
throw that rubbish away. Almost on cue,
a flock of magpie geese flew overhead,
and Bulun Bulun shot a bird from the sky,
which dutifully came thudding down within
inches of the camp barbeque. As night
fell, the bird was broiled. I was given
the best bits to eat, as the guest of
honour — the giblets and other bits
I was glad I could not see properly by
the flickering light of the hot coals.
It was a magical night. The Aboriginal
people talked about their land. All was
in harmony. I felt a deep sense of calm
and timelessness, until, with dinner over,
the power generator was turned on and
we watched old American sitcoms using
a beat-up television and VCR. There was
no escaping the clutches of Jerry Lewis’s
copyright, or should I say the copyright
of Paramount or Warner Brothers. It was
a reminder of the pervasiveness of copyright
exploitation, with no corner of God’s
earth left untouched.
The message is: guard the creative spirit
well, with authority and conviction. Authors
should enter into contracts with as much
thought and conviction as their work warrants.
Reserve stupid contracts for stupid art.
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