Harvey on copyright

March 26th, 2013 at 2:00 pm by David Farrar

Judge has blogged a keynote speech he gave to the Australian Digital Alliance Forum on law in the modern era. It’s a fascinating essay on the history of , the changes over time, the balancing of rights etc.

He summarises his own proposal for copyright going forward:

 1. Copyright should not be seen as a property right – 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.

 I like the idea of the major right being the right to receive and impart information, and copyright restrictions must fall within this right as justifiable limitations or exceptions. I think that is superior to having copyright as the “major right” and then having to justify exceptions to copyright for purposes of quoting, parody, satire, academic scrutiny etc.

Tags: ,

22 Responses to “Harvey on copyright”

  1. Weihana (4,496 comments) says:

    a) necessary to meet the copyright owners interests and justification

    I agree with Harvey generally. However, the copyright owners interests are to maximize their own profitability so this remedy seems somewhat similar to the present regime.

    In my view the fundamental basis for copyright restrictions is the utility these creations represent to society. The content creator has the absolute ability to restrict their works to the public: do not distribute it in the first place. But once you do distribute it and expect society to police your “rights” then it is the public interest which should determine appropriate restrictions not the personal interests of the content creator.

    Realistically there is little public interest in protecting copyright beyond the length of time it takes to generate the majority of revenue from a work. For a movie, for instance, this generally occurs at the box office. Obviously this could conceivably be affected if people know that in 3-6 months they can get the movie for free, but certainly it is unlikely that one would avoid the movies because they could get it for free in 5 years, much less 50 or 75.

    Furthermore, declining revenues in the industry should not automatically be viewed as being against the public interest because it assumes that whatever revenue they are generating is an optimal amount and that any reduction necessarily discourages further content to be created. In reality the industry generates far in excess of what is necessary. There is no shortage of people dreaming of being music superstars and talent is as abundant now as it ever has been.

    Vote: Thumb up 0 Thumb down 0 You need to be logged in to vote
  2. UglyTruth (4,551 comments) says:

    There can be no doubt that there must be some protection for intellectual property rights.

    Same old bullshit from the NZ protection racket. Anyone outside of the judge’s personal jurisdiction can use “intellectual property” with impunity from a civil suit.

    One of the essential characteristics of property is exclusive possession. As soon as a unique intellectual work is shared it ceases to be intellectual property.

    Vote: Thumb up 1 Thumb down 2 You need to be logged in to vote
  3. Redbaiter (8,528 comments) says:

    Should Madonna make money from recordings, or from concerts?

    If she chooses the former, then she should not demand that the general public’s rights be suffocated by legislation so that her business model will be a success.

    Vote: Thumb up 4 Thumb down 2 You need to be logged in to vote
  4. RRM (9,826 comments) says:

    …Madonna…

    :-) That explains a great deal.

    Vote: Thumb up 1 Thumb down 1 You need to be logged in to vote
  5. hamish_nzl (21 comments) says:

    > One of the essential characteristics of property is exclusive possession.

    Composition fallacy. Just because it’s commonly called “Intellectual Property” doesn’t mean it’s actually “property” (by *your* definition) or that other rights can’t or shouldn’t be applied.

    Vote: Thumb up 1 Thumb down 0 You need to be logged in to vote
  6. UglyTruth (4,551 comments) says:

    Composition fallacy.

    Wrong. Intellectual property is property in the same way that personal property and real property are both property. You don’t have any justification for special pleading.

    Using your logic, blue cars are not actually cars.

    You should read this:
    http://www.nizkor.org/features/fallacies/composition.html

    The racket depends on the use misleading language to confuse people into obedience. Equating people with persons is the most significant example of this.

    Vote: Thumb up 0 Thumb down 0 You need to be logged in to vote
  7. Fentex (936 comments) says:

    It’s a misnomer rather than a Composition Fallacy.

    Intellectual ‘Property’ is only property where it involves owning the piece of paper that says you have a legal claim.

    It isn’t in any way property of the same nature as discrete things that can be possessed and dispossessed.

    Vote: Thumb up 1 Thumb down 0 You need to be logged in to vote
  8. UglyTruth (4,551 comments) says:

    It’s a misnomer rather than a Composition Fallacy.

    Nope. Its not a misnomer when intellectual property has all of the essential qualities of property, which occurs when nobody else has a copy of it.

    Intellectual ‘Property’ is only property where it involves owning the piece of paper that says you have a legal claim.

    Your “property” is a legal fiction, and the employment of fictions is fraudulent when it injures fair use of the intellectual work. For a legal claim to be valid a right must exist, but all you’ve got for your commercial paper is a fiction.

    Vote: Thumb up 0 Thumb down 0 You need to be logged in to vote
  9. Nigel Kearney (979 comments) says:

    >Should Madonna make money from recordings, or from concerts?

    >If she chooses the former, then she should not demand that the general public’s rights be
    >suffocated by legislation so that her business model will be a success.

    Should JK Rowling make money by selling printed copies of her books, or by giving public readings? Surely it is reasonable for her to choose the former and expect that if I try to flog off photocopies of her books on a street corner, my claim to be exercising my freedom of expression will be laughed out of court.

    Vote: Thumb up 1 Thumb down 1 You need to be logged in to vote
  10. UglyTruth (4,551 comments) says:

    I try to flog off photocopies of her books on a street corner, my claim to be exercising my freedom of expression will be laughed out of court.

    Because you are gaining an unfair advantage by selling them. Your example is different to fair use of an intellectual work.

    Vote: Thumb up 0 Thumb down 1 You need to be logged in to vote
  11. Weihana (4,496 comments) says:

    Nigel Kearney,

    Should JK Rowling make money by selling printed copies of her books, or by giving public readings?

    I really couldn’t care less whether or not JK Rowling makes money. The rational interest of society at large is in having access to creative works, not in the artist making money per se. From the perspective of society the ability of individuals to profit from creative works is simply a *means to an end* not an end in and of itself.

    There are two extremes. At one extreme the artist has no rights and gets no reward. This discourages the creation of creative works in the first instance. The other extreme is that the content creator receives rewards that have no function in providing incentive for further creation and thus such restrictions reduce the utility to society of such creative works. Somewhere in between there is a balance where content creators are rewarded whilst maximizing the utility of those works to society.

    It is fitting that determining where this balance is achieved is an art in and of itself. Whilst performance is a reasonable means of generating revenue for musicians it is not so with regards to the author of a book. There shouldn’t be a one-size-fits-all approach and so your analogy doesn’t really diminish the validity of Redbaiter’s argument in my view.

    Vote: Thumb up 1 Thumb down 1 You need to be logged in to vote
  12. Redbaiter (8,528 comments) says:

    “Surely it is reasonable for her to choose the former and expect that if I try to flog off photocopies of her books on a street corner, my claim to be exercising my freedom of expression will be laughed out of court.”

    In a laughable libertarian court maybe so.

    It is not really the book that is copyrighted, it is the publishing rights.

    So Weihana has a good point- Should we impose all kinds of restrictions on people’s personal freedom merely to protect the money making opportunites of those who still see book publishing as a viable business.

    When it is only viable today if it is covered by a wide ranging arc of anti-freedom legislation?

    I do not think we should. Times change, and that is an argument progressives such as yourself use to justify all kinds of assaults on other staples of our society.

    Writers and other artists just have to accept that the opportunities that made them money in the past no longer exist today.

    EOS.

    Vote: Thumb up 4 Thumb down 1 You need to be logged in to vote
  13. OneTrack (3,020 comments) says:

    Weihana @2:40 – “There is no shortage of people dreaming of being music superstars and talent is as abundant now as it ever has been”

    But when you throw away all copyright protection, they will quickly find that the earning potential they are currently dreaming of will not be achievable, and music and video stores will become a thing of the past. Then there will be plaintive cries of “why don’t they make movies like Titanic or The Hobbit any more” Maybe because they won’t be able to afford to.

    Vote: Thumb up 0 Thumb down 1 You need to be logged in to vote
  14. Redbaiter (8,528 comments) says:

    “music and video stores will become a thing of the past.”

    How sad for all of those Obama loving commies in the “entertainment” business.

    Vote: Thumb up 2 Thumb down 1 You need to be logged in to vote
  15. OneTrack (3,020 comments) says:

    “How sad for all of those Obama loving commies in the “entertainment” business.” :-)

    Vote: Thumb up 1 Thumb down 0 You need to be logged in to vote
  16. Alan Wilkinson (1,871 comments) says:

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

    I don’t understand this statement. Only the owner can own copyright just like any other property. All property is owned subject to law.

    [DPF: Words are not property]

    Vote: Thumb up 0 Thumb down 0 You need to be logged in to vote
  17. Reid (16,290 comments) says:

    Such a shame the best qualified judge in NZ to hear the Dotcom extradition case “had” to recuse himself after “accidentally” making a few injudicious comments.

    I’m not saying he shouldn’t have recused himself. I’m saying it was extremely curious that such an experienced judge, with his qualifications, should have made such a clearly compromising remark in the first place. Especially given the forum he made it at, an interweb conference.

    Almost as if someone had a quiet word to him.

    But of course, that would never happen. Heaven forfend.

    Vote: Thumb up 0 Thumb down 1 You need to be logged in to vote
  18. bhudson (4,738 comments) says:

    Almost as if someone had a quiet word to him.

    How illuminati[ng]

    Vote: Thumb up 1 Thumb down 0 You need to be logged in to vote
  19. Weihana (4,496 comments) says:

    OneTrack (274) Says:
    March 26th, 2013 at 5:01 pm

    But when you throw away all copyright protection, they will quickly find that the earning potential they are currently dreaming of will not be achievable

    There isn’t really much push for removing all copyright protection. The trend is to push for much stronger and more draconian legislation to uphold copyright.

    I’m certainly not suggesting getting rid of all copyright protection, I’m simply saying that the status quo is fine and that we could even reduce the term of copyright considerably. There is no utility to society in having a 50-75 year copyright term. No one writes a song or produces a movie or creates a computer game because of the promise of revenue in 50 years. They do it for the promise of revenue in the near term.

    …and music and video stores will become a thing of the past.

    As they should. Technology has made them redundant. The point of copyright is to reward the artist, not the person working at United Video.

    Then there will be plaintive cries of “why don’t they make movies like Titanic or The Hobbit any more” Maybe because they won’t be able to afford to.

    And yet despite over ten years of rampant piracy these things are still being made.

    Vote: Thumb up 1 Thumb down 0 You need to be logged in to vote
  20. UglyTruth (4,551 comments) says:

    Only the owner can own copyright just like any other property.

    Copyright isn’t property.

    All property is owned subject to law.

    Different types of property are subject to different types of law. Real property is not subject to the same law as personal property. Real property is subject to the law of the land, personal property is subject to municipal law.

    Vote: Thumb up 0 Thumb down 0 You need to be logged in to vote
  21. Ancient Dan (46 comments) says:

    I’m with weihana, cut the protection period to 10 years for music and 20 for books. The creator and their publishers in technically changing world have been well rewarded (or not) by then.

    Vote: Thumb up 0 Thumb down 0 You need to be logged in to vote
  22. Nigel Kearney (979 comments) says:

    >There is no utility to society in having a 50-75 year copyright term. No one writes a song or produces
    >a movie or creates a computer game because of the promise of revenue in 50 years. They do it for
    >the promise of revenue in the near term.

    I agree with decreasing the term but it won’t deal with the main problem. This time next week people will be downloading Game of Thrones not I Claudius.

    Vote: Thumb up 0 Thumb down 0 You need to be logged in to vote

Leave a Reply

You must be logged in to post a comment.