Copyright must address modern ways of working, learning and living

Last Friday’s decision of the full bench of the Federal Court must be appealed to the High Court and the High Court should over turn this poor decision.

I established one of the first multimedia development companies in Australia in 1985 and since then I have had to address the many practical problems caused by copyright law in building innovative products using multimedia technologies. It is never good for the wider public good when monopolies use the law to protect their lucrative revenue streams which is what the AFL is trying to do in this case. The law was sensibly changed in 2006 to allow recording of free to air broadcast content for later viewing and as there is no difference between a VCR or mobile phone why should a monopoly be given the special right to raise revenue just because the free to air broadcast can now be watch on a new device?

These multimedia technologies started with analogue laser discs released by Philips in 1982 then Intel demonstrated digital video on CDROM in 1989, Philips CDi in 1991 and by the late 1990’s all this was replaced by DVD which in turn is now being replaced by YouTube and other online ways of inculcating sound and moving images into our lives.

Progressively these multimedia technologies and the connecting power of the Internet have created new ways for working, learning and living. These new ways have expanded what we do in space and time. Activities that once required everyone to be in the same place and engaged at the same time can now be done anywhere around the global and at different times. Copyright law has failed to evolve. That is copyright law is frustrating these highly valuable innovations. Because we have moved the activity from the office or the lounge room to our Facebook page copyright law is being used to create a massive new revenue stream for copyright holders and**because copyright law has been modified to protect revenue streams from traditional products in print, music and film new highly valuable innovations are being throttled.

The core problem that must be addressed is that we now live our lives on a digital canvass and intellectual property is being utilised in human interactions that are taking place in a ubiquitous, globally connected world. Business conversations like social conversations can take place through many devices, simultaneously or asynchronously over extended periods. Innovation and new inventions change the way these conversations are constructed and conducted and copyright laws must not provide for inappropriate controls in how we work, learn and live merely because we choose to use these inventions and innovations to improve the quality of our lives.

The current Australian Law Review Commission enquiry should consider exemptions in the Copyright Act 1968 to the extent that human interactions conducted on a globally connected digital canvas should not be restrained any more than when those human interactions were conducted face to face in a single physical location.

Copyright laws should be strong in protecting intellectual property but they should not be allowed to achieve this at the expense of throttling future innovation. The fair use provisions should permit reference to text, music and video in prior works in online conversations, as those works were used in traditional conversations. If it was permissible to quote a respected authority in a speech, now with the ubiquity of multimedia technology a similar quotation in audio or video, with appropriate attributions, should be permissible as many speeches and presentations are presented or at least archived online.

The use of a purchased book, music track or video should be permitted in an online conversation but only to the same extent, as was previously permitted in conversations conducted face to face in one location. That is sharing the experience of a grandchild dancing to a music track in the home should now be permitted on YouTube so as to enable the experience to be shared with other members of the family not present at the physical location but such an exemption should not allow the creation of a commercial dance video for public release without proper rights clearance of the music tracks utilised.

A digital copy of an eBook or video should be able to be gifted, lent or sold in similar ways as the physical equivalent has been in the past.

Writers and composers have always paid respect to past genius and used clever and sometimes obtuse references in their new works but those works that are given revered status of cultural icon have something special, something unique because they contain innovations that advance their domain. Widely respected innovations and unique works such as James Joyce’s Ulysses using ancient myths from Homer or Greg Ham’s salute to Kookaburra in Men at Work’s now classic Down Under to evoke images of the Australian bush culture are essential to building a dynamic culture for future generations. When the laws of copyright fail to provide appropriate exemptions for four bars of music that vaguely reference an old Australian campfire song, the copyright law is an ass.

The Australian copyright law should not inappropriately reward copyright holders from 1908 to the end of the 20th century for every word, note or image they utilised in their copyrighted works against all future writers, composers and artists because as Newton stated they stood on the shoulders of giants that went before them. Why should this special generation of creators and their heirs be given such protection, such wealth?

To use an analogy the ingredients of Thai cuisine include coriander, galangal and kaffir lime leaves so imagine if this unique combination of spices, an essential part of the Thai culture was centuries ago placed under copyright and the heirs to the owners of those copyrights could now take legal action as Larrikin Music did to extract millions of dollars for 4 bars of music, that required musicologists to identify as being from the song Kookaburra? This would be unjust, absurd and just plain ridiculous. Our copyright law must provide for exemptions to allow the special ingredients of our past works to like spice add flavours to future works and hopefully not carrying the analogy too far the exemption should ensure that the amount of spices taken are not so large as to spoil the meal by rendering it a flagrant copy that is riding on the talent and reputation of the past works referenced.

There should be exemptions to allow such genius to flourish and innovations to happen. Copyright is a right granted, a monopoly given by the society to the creator and that right should be seen as a privilege that demands respect for how it is exploited. In the case of the AFL and mobile rights that I began with it is outrageous that a technology innovation (playing video on a mobile phone) should provide a content owner (AFL) with a new monopoly right to extract additional fees for playing their content on a new special class of devices. Next they will want to be able to extract fees for new technology televisions or whatever invention is around the corner that plays 3D vision!