Sackville, Ronald --- "Welcome" [2007] SydUPLawBk 34; in Fitzgerald, Brian; Coates, Jessica and Lewis, Suzanne (eds), "Open Content Licensing: Cultivating the Creative Commons" (Sydney University Press, 2007) 30

Welcome

THE HON JUSTICE RONALD SACKVILLE

Michael Lavarch, Brian Fitzgerald, Professor Lessig, ladies and gentlemen, it is a great delight to be introduced by Michael, who made the serious mistake of appointing me to the Federal Court during his time as Attorney General of the Commonwealth. My own career, such as it is, is a bit odd as far as the order of events is concerned, but Michael’s is even weirder. He is the only person I know who has used the position as the First Law Officer of the Commonwealth as work experience for a real job, that is, being Dean of the Faculty of Law. If you think the Caucus is difficult, wait until you deal with a group of legal academics.

A conference on cultivating the Creative Commons, particularly one that I understand is sponsored by the modestly, if not tautologically, named Creative Industries Faculty, is not a place where you would expect to find old-fashioned people. But for those of us who are old-fashioned, like Richard Neville and myself, 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. In particular, notwithstanding the virtues of blogging, which my associates have attempted unsuccessfully to explain to me, the presence of Professor Lessig gives us all an opportunity to put a real, as opposed to a virtual, face on someone whose work on the Creative Commons and the future of ideas has been enormously influential.

As I am sure Professor Lessig knows, there is a long history of fruitful interchange between Australian and the United States’ legal academics, even if the traffic has tended to be rather heavily in one direction. There are many Australians who have taught and studied at great Law Schools like Yale, Harvard, Stanford and Chicago, all of which Professor Lessig has been associated with at some stage. Given that I am a graduate of one of those institutions, the order in which I mentioned them is not entirely random. While academic exchange is nearly always mutually beneficial, this has not always been the experience of interaction between the leadership of our two countries, even though we seem to be in a phase of extended mutual admiration.

In 1919, the then Australian Prime Minister, Billy Hughes, was making a nuisance of himself at the Versailles Peace Conference. To the intense aggravation of Woodrow Wilson, Hughes insisted on ever more punitive sanctions against a defeated Germany. Hughes’ strident views prompted President Wilson to describe him as a ‘pestiferous varmint’ and I do not think he meant the phrase as a compliment. Having read a number of Professor Lessig’s works, I suspect that there might be quite a few holders of copyright who would regard him as a ‘pestiferous varmint’, but I am sure that they would use that phrase in the nicest possible way.

For better or for worse, I bring to this area of discourse the perspective of a judge who is occasionally, and more or less randomly, exposed to the complexities and challenges of intellectual property law. Even from this limited and sporadic 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^[1], there has been a transfer of knowledge assets from the intellectual commons into private interest, private hands. This point, of course, was driven home recently, and forcefully, in Australia, by the debate concerning ratification of the Australia-United States Free Trade Agreement (FTA).

For a brief time patent and copyright law was actually 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 the holders of drug patents used dubious claims to extend their monopoly at the expense of generic drug manufacturers and, ultimately, the public. One of the most fascinating sections of Professor Lessig’s recent book, which is catchily entitled Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity^[2] (I have known some published articles as long as that) is his account in Chapter 13 of Eldred v Ashcroft^[3], in which he acted as Counsel for Mr Eldred. Despite Professor Lessig’s best efforts, for which he modestly offers a mea culpa – and I must discuss with Professor Lessig how far counsel’s arguments really do influence judges when they decide cases – the Supreme Court of the United States upheld the validity of the so-called Sonny Bono Copyright Extension Act.^[4] This Act retrospectively extended the term of copyright by twenty years in the usual case to a period of the life of the author plus seventy years.

It is no coincidence that the FTA obliges Australia to enact precisely equivalent legislation. The Commonwealth has now done so in the implementing legislation. The US Free Trade Agreement Implementation Act 2004 (Cth) has amended s33 of the Copyright Act 1968 (Cth) to provide for a non-retrospective extension of copyright in exactly the terms upheld by the Supreme Court. Despite the Supreme Court’s ruling, and the willingness of Australian negotiators to accept the position of the United States, it is extremely difficult to understand the policy justification for a further extension for the term of copyright, let alone the application of the extension to existing copyright.

Interestingly enough, one of the dissenters in Eldred v Ashcroft was Justice Breyer. Thirty years earlier as a young law professor he 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, particularly with specific categories of published works, had been greatly over-stated.^[5] In his opinion in Eldred v Ashcroft, Justice Breyer ridiculed the suggestion that a 20 year extension of copyright would 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?”^[6]

In his dissenting opinion in Eldred, Justice Stevens, in words that echoed the famous speech given by Lord Macaulay in 1841 in the House of Commons, 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”.^[7] The real sting in the tail of this comment is, of course, that for the most part the beneficiaries of the extension will not be authors, or even their original publishers, but commercial entities which have acquired the rights long before the statutory extension of copyright.

Another significant feature of the FTA, which has not attracted a great deal of comment, 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.^[8] These provisions in fact reflect a fairly well-established policy of criminalising deliberate commercial conduct which infringes intellectual property rights, particularly copyright.

There is probably nothing remarkable about this policy until you look at how it has actually been implemented in Australia. The Copyright Act provides that the 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.^[9] An offence punishable on summary conviction is one that can be dealt with by a magistrate sitting alone. This means, for example, that a local court in New South Wales, acting under Federal law – and of course in Australia State courts can be invested with Federal jurisdiction – can impose a sentence of imprisonment of up to five years for a deliberate infringement of copyright. The same court, under State law, can impose a sentence of no more than two years imprisonment for any summary offence in respect of which it has jurisdiction. The most plausible explanation for these extremely unusual arrangements about which I have had occasion to comment judicially in a case called Ly v Jenkins^[10], is that they are designed to accommodate the contention of copyright owners that not only severe criminal penalties but special summary procedures are needed to curtail the activities of copyright pirates. There are many commentators who have appreciated, in the words of James Boyle, an American academic, that we are in the middle of “the second enclosure movement”. ^[11] He sees that movement as exemplified by the recognition of patent rights in human genes.

Peter Drahos and John Braithwaite draw a parallel in their book between medieval feudalism and what they describe as ‘information feudalism’. Under the earlier variety, a lord of the manor exercised not only private power by virtue of his ownership of land, but public power through a system of manorial taxes, courts and prisons. In the modern form of feudalism, as Drahos and Braithwaite see it, the transfer of intellectual commons has been to media conglomerates and integrated life sciences corporations, rather than to individual scientists and authors. The effect, they argue, is to raise levels of private monopolistic power to dangerous global heights, at a time when states, which have been weakened by the forces of globalisation, have less capacity to protect their citizens from the consequences of the exercise of this power. William Cornish, a well-known intellectual property scholar, entitled his 2002 Clarendon Law Lectures Intellectual Property: Omnipresent, Distracting, Irrelevant?^[12] in order to highlight the major dilemmas which enmesh intellectual property: omnipresent – to capture the case where intellectual property rights appear to be “spreading like a rash”; distracting – to describe rights which serve few of their intended purposes but which cause persisting itching; irrelevant – to refer to technology which in practice seems to render some forms of intellectual property nugatory.

Why have these developments occurred? From an Australian perspective, three major factors have combined to generate the pressures to which the Creative Commons movement is a response.

The first, obviously enough, is the power of interest groups whose economic well-being depends upon the privatisation of intellectual property resources. In general, the interest groups favouring the extension of intellectual rights are very well resourced, effectively organised and politically powerful, both at a national and an international level. Often they can enlist the support of national governments in multilateral and bilateral negotiations. The United States, in particular, has used trade negotiations to ensure, in the words of § 301 of the Trade Act 1984 “adequate and effective protection” for the intellectual property of United States corporations in other countries. Trade benefits may be (and often are) withdrawn from countries which fail to grant such protection. The United States has played a leading role in the negotiation of multilateral arrangements, such as the Trade Related Aspects of Intellectual Property Rights (TRIPS) Agreement, which have done much to advance the interests of the holders of patents, copyright and other forms of intellectual property.

I do not mean to suggest that there are never powerful interest groups opposing the expansion of intellectual property rights. The history of copyright law, for example, is replete with battles between opposing interest groups, such as music publishers and the manufacturers of tape recorders and other electronic equipment. Even so, the struggle is often unequal.

A second force for extending the boundaries of intellectual property is bilateral and multilateral international arrangements. Like the FTA, these agreements often require the parties to create new species of intellectual property or to enforce existing rights more effectively. The shape of much of Australia’s intellectual property law has been determined by international agreement. Since the Commonwealth Parliament, pursuant to the external affairs power, can legislate to implement international agreements, the effect is that there is virtually no limit on Parliament’s power to privatise intellectual resources.

Technological change is a third powerful force, since technological developments can quickly render obsolete or ineffective existing laws and enforcement mechanisms. As copyright holders, for example, realise that they cannot protect their interest by purely technological means there emerges, in the words of Professor Cornish:

a whole set of distinct demands for higher legal fences as part of the digital agenda, which politicians press at the behest of industry lobbyists and their star writers and performers.

When the new technology and international treaty obligations coincide the pressures for the extension of intellectual property rights become almost irresistible. An illustration is s116A of the Copyright Act, a provision designed to prevent a person from making so-called ‘circumvention devices’ which are capable of circumventing ‘technological protection measures’. The origins of s116A, the construction of which was in issue in the recent case of Sony v Stevens^[13] (now before the High Court)^[14], lies in two World Intellectual Property Organisation treaties which address the problems for copyright owners by changing technology.

The privatisation of intellectual property resources raises issues that transcend the particular concerns of intellectual property lawyers and their clients. They go to the nature of freedom in a society which, in equal measure, creates opportunities for astonishing innovations and severe restrictions on creativity.

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^[1] Peter Drahos and John Braithwaite, Information Feudalism, (2003) W. W. Norton & Company

^[2] Lawrence Lessig, Free Culture.

^[3] Eldred v. Ashcroft, [2003] USSC 722; 537 U.S. 186 (2003)

^[4] Copyright Term Extension Act 1998

^[5] Stephen Breyer (1970). "The Uneasy Case for Copyright: A Study of Copyright in Books, Photocopies, and Computer Programs". Harvard Law Review 84 (2): 281–355.

^[6] Eldred v. Ashcroft, [2003] USSC 722; 537 U.S. 186 (2003) 14

^[7] Eldred v. Ashcroft, [2003] USSC 722; 537 U.S. 186 (2003) 6

^[8] Australia-United States Free Trade Agreement 17.11.26(a)(ii), 17.4.7(a)(ii) and 17.4.8(a)(iii)

^[9] Copyright Act 1968 (Cth) s132(6AA)-(6A) as at 1 January 2005

^[10] Ly v Jenkins [2001] FCA 1640

^[11] James Boyle ‘The Second Enclosure Movement and the Construction of the Public Domain’ 66 Law & Contemp. Probs. 33 (Winter/Spring 2003) 33

^[12] William Cornish, Intellectual Property: Omnipresent, Distracting, Irrelevant? (2006) Oxford University Press

^[13] Kabushiki Kaisha Sony Computer Entertainment v Stevens [2002] FCA 906

^[14] Note: since this paper was presented, the High Court has handed down its decision and this matter - see Stevens v Kabushiki Kaisha Sony Computer Entertainment [2005] HCA 58