Cultivating the Creative Commons

A conference on “Cultivating the Creative Commons” particularly one sponsored by the modestly, if not tautologically, named Creative Industries Faculty is not a place where you expect to find old-fashioned people. But for those of us that are old-fashioned, even Luddite, there is a special benefit in the opportunity to engage in face to face discussions on the proper role of and boundaries to intellectual property rights.

For better or for worse, I bring in to this area of discourse the perspective of a Judge who is occasionally and more or less randomly exposed the complexities and challenges of intellectual property law. Even from this limited perspective, it is impossible to avoid being struck by how rapidly (to use the words of Peter Drahos and John Braithwaite in their book Information Feudalism) there has been a transfer of knowledge assets from the intellectual commons into private interests.

This point was driven home most recently in Australia by the debate concerning the ratification of the Australia-United States Free Trade Agreement. For a brief time, patent and copyright law was at the forefront of public debate in this country. Intellectual property lawyers, or at least a smattering of them, enjoyed a fleeting moment of public exposure, if not fame. The word “evergreening” temporarily entered the Australian vernacular as commentators debated the extent to which holders of drug patents use dubious claims to extend their monopoly at the expense of generic drug manufactures and ultimately the public.

One of the most fascinating sections of Professor Lessig’s recent book, catchily entitled Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity, is his account in Chapter 13 of Eldred v Ashcroft, in which he acted as counsel for Mr Eldred. Despite Professor Lessig’s best efforts, for which he modestly offers a mea culpa, the Supreme Court of the US upheld the validity of the so-called Sonny Bono Copyright Extension Act 1998, which retrospectively extended the term of copyright by 20 years, to a period of the life of the author plus 70 years. It is no coincidence that the FTA obliges Australia to enact similar legislation. The Commonwealth Parliament has now done so in the implementing legislation, the US Free Trade Agreement Implementation Act 2004 (Cth).

Despite the Supreme Court’s ruling and the willingness of Australian negotiators to accept the position of the US, it is extremely difficult to understand the policy justification for a further extension of the term of copyright, let alone the application of the extension to subsisting copyright. Interestingly enough, one of the dissenters in Eldred v Ashcroft was Justice Breyer, who 30 years earlier as a young law professor had written a famous article in the Harvard Law Review arguing that the supposed non-economic benefits of copyright did not justify the grant of monopoly rights to authors and that the economic benefits of copyright had been greatly overstated. In his opinion in Eldred v Ashcroft, Justice Breyer ridiculed the suggestion that a 20-year extension of copyright will act as an economic spur to authors to create new works:

What monetarily motivated Melville (he asked alliteratively) will not realise that he could do better for his grandchildren by putting a few dollars in an interest-bearing account?

In his dissenting opinion in Eldred v Ashcroft, Justice Stevens, in words that echo the famous speech given by Lord Macaulay in 1841, pointed out that:

Ex post facto extensions of copyright result in a gratuitous transfer of wealth from the public to authors, publishers and their successors and interests.

The real sting in the tail of this comment is that for the most part, beneficiaries of the extension will not be authors or even the original publishers, but commercial entities which acquired the rights long before the extension.

Another significant feature of the FTA is its insistence that the parties provide for criminal penalties to be applied where a person is found to “have engaged wilfully and for the purpose of commercial advantage” in certain conduct infringing intellectual property rights. These provisions reflect an established policy of criminalising deliberate commercial conduct which infringes intellectual property rights, especially copyright.

There is nothing particularly remarkable in this policy, until one looks at how it has been implemented in Australia. The Copyright Act provides that a person who distributes an article for commercial purposes, which that person knows is an infringing copy, is guilty of an offence punishable on summary conviction by a term of imprisonment of up to five years.

This means, for example, that a Local Court in New South Wales, acting under federal law, can impose a sentence of imprisonment of up to five years for a deliberate infringement of copyright, when the same Court, under State law, can impose a sentence of no more than two years imprisonment in respect of any summary offence. The most plausible explanation for these extremely unusual arrangements, about which I have had occasion to comment judicially, is that they are designed to accommodate the contention of copyright owners that not only severe criminal penalties, but special procedures are needed, to curtail the activities of copyright pirates.