Judge David Harvey has blogged a keynote speech he gave to the Australian Digital Alliance Forum on copyright law in the modern era. It’s a fascinating essay on the history of copyright, 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”.
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.