The chair of the National Library and former Chief Justice, Sir Anthony Mason, has noted some alarming threats to the flow of knowledge in Australia. He has pointed out that what might seem technical proposals to change copyright law have a profound practical effect for those who deal in knowledge and ideas.
The Copyright Law Review Committee has proposed a fee for electronic transfer of material. This has delighted creative producers, like song writers and other artists, but has alarmed libraries. Sir Anthony points out that Australia is likely to lose heavily from any changes to increase copyright protection. We already pay $1.7 billion a year overseas yet receive only $380 million. This imbalance would get worse if copyright protection were increased.
The push for greater copyright protection has come mainly from the United States and Europe, which have most to gain. They have also pushed for greater patent and trade mark protection. Moreover, they have cunningly wrapped up the negotiation of international agreements in intellectual property in the negotiations over general trade through the World Trade Organisation, rather than through the World Intellectual Property Organisation. The irony is that more restrictive rules on intellectual property are being portrayed as part of trade liberalisation.
In the patents area, Australia has foolishly agreed to extending patents from 16 to 20 years and reversing the onus of proof in favour of patent owners in infringement cases. That will cost us dearly, and it will go into the pockets of large US commercial interests.
Often the debate about strengthening copyright and other intellectual-property rights has been coloured by the romantic view that some struggling poet or song-writer in a turret or potty inventor in a garage is being protected against the ravages of large unscrupulous copiers out for commercial gain. The other side of the debate gets less of a run. Intellectual property rights only arise because governments grant them, theoretically in the public interest. In return, the owner of the intellectual property allows access for public purposes and, after a reasonable period, commercial exploitation by anyone. Thus 50 years after an author’s death, literary works can bee freely copied. Sixteen or 20 years after an inventor has sold his unique widget to the world, it is open to anyone to produce and sell the widget following the patent specifications which have been lodged at the public register and available for research throughout the life of the patent.
The general principle of a grant of limited monopoly right in return for a public use has been eroded as large commercial interests get possession of the intellectual property and demand greater and greater monopoly rights with less and less public access.
Computer software is a pertinent case. The software producers have managed to con the governments and courts of the world to give them copyright protection. Copyright lasts for 50 years from the author’s death. It is (pardon the pun) a patently absurd length of time to protect a software product. Unlike a literary work which has some residual value after 50 years so the public get a benefit, a software program is useless. They should be protected for, say, five or seven years and then be open for copying and general use without fee.
With the copyright in literary works, the monopoly was granted for commercial copying in return for a general right of access to works for research and literary criticism.
Sir Anthony pointed out last week that the Copyright Law Review Committee’s plan for a fee on electronic transfer could easily extend to a fee for electronic browsing. This would stab at the heart of the public-interest element of copyright law. Browsing electronically should be no different from browsing paper versions. Browsing paper versions is not considered a breach of copyright nor does it attract a fee. Free browsing is essential for research and essential for the free flow of information which is so important for the nation’s intellectual, economic and social life.
The law should continue to recognise that there is no copyright in ideas and there is no copyright in knowledge. Copyright is only to protect a particular way of expressing ideas and knowledge from others copying it for the purpose of commercial exploitation.
Australia should, on one hand, ensure that our libraries have the ability to provide knowledge and ideas to the public without incurring huge fees to overseas and local copyright owners but, on the other hand, ensure that our laws will protect overseas and local copyright owners from illicit commercial copying.