As a small child living in a country town I’d often wander off ‘up the creek’. It was invariably dry except in the middle of winter and it was a delightful way to escape into that other world ‘the bush’. It never occurred to me that someone might own the bush, it was just there. I was, however, already aware of the difference between going up the creek and going into someone else’s yard uninvited.

I didn’t at that stage link the ideas ‘crown land’ and ‘the bush’ at all, much less realize that while crown land was, to me, simply the bush what it really meant was that it was owned by the government.

Later, as a young woman hitch-hiking into the bush in the Kimberley, I got a lift in a ute from a group of aboriginal roo-shooters. As we bumped along the track in companionable silence, the elder, in pride of place with his back to the window of the cab, looked around, breathed a sigh of contentment and said “This my land – you like it?”

On hearing my reply – “I love it” – he beamed and said ‘You welcome.’

Ironically I was ‘moved on’ three days later by a white man, a government ranger.

What has all this to do with intellectual property you might ask?

It seems to me that the idea of ‘property’, as distinct from that of ‘territory’ is nowhere inherent in nature. Nobody really owns anything and then you die.

Property rather, is a construction that exists to varying extents in different cultures; and comes into existence by a series of agreements, either imposed, or negotiated, and modified as needs and priorities change.

In his recent book The Most Powerful Idea in the World William Rosen points out that:

“Throughout most of human history, successful inventors, unless wealthy enough to retain their amateur status, have depended on patronage, which they secured either by entertaining their betters or glorifying them (sometimes both)”.

Rosen maintains that it is the emphasis in 17th century Britain on ideas as a form of property that  is the most cogent explanation of the fact that the industrial revolution took place in England, rather than elsewhere.

At that time in Britain the length of a patent term was fourteen years, which was considered enough time for a person to reap sufficient benefits from an invention to make it worth the effort. This difference between ‘intellectual’ property rights and other property rights which don’t have a time limit is recognition of what is known as the Public Domain. Something akin to ‘the bush’ as I saw it as a child.

Why the limits?

The concept of the public domain is probably best interpreted as an expression of the fact that any new idea or invention depends on the existing pool of knowledge within a culture. The power of steam, for example, was first discovered by the Greek scientist Heron in the first century AD. Various other experiments with steam were made over time until a certain necessary congruence of circumstances occurred, and there we were going for a slightly sooty ride in a train.

Heron’s Aeolipile

Thomas Edison once said “I have not failed. I’ve just found 10,000 ways that won’t work”: a reflection of the fact that eliminating what doesn’t work or ‘failure’ can be the greater part of the creative process. In many cases of success this elimination process has already been done by someone else, someone other than the one who reaps the financial benefit.

The History.

Although Intellectual Property discussion has usually been couched in terms of balancing the right of authors and inventors to a fair return, against the right of public interest; the history of IP Policy shows that, from the very beginning other interests have shaped the debate.

The origins of copyright go back to the reign of Queen Mary, the Bloody Mary of fond memory. In 1557, between bouts of Protestant-roasting, she took time to grant a royal charter legally incorporating the London Guild of Stationers into the Company of Stationers, giving them exclusive control over printing within England and giving rise to what is generally referred to as stationers’ copyright.

The opening paragraph of the charter makes it abundantly clear that her purpose has nothing whatever to do with protection of authors’ and creators’ rights and that copyright was actually, surprise, surprise, an instrument of censorship:

The king and queen to all to whom etc. [sic] greeting. Know ye that we, considering and manifestly perceiving that certain seditious and heretical books rhymes and treatises are daily published and printed by divers scandalous malicious schismatical and heretical persons, not only moving our subjects and lieges to sedition and disobedience against us our crown and dignity…

(How about that little ‘etc.’ in the first line? Mistress of the subtle put-down was our Mary.)

In 1689 – after not one, but two revolutions – the Stationer’s Charter was allowed to lapse; and in 1710 The Statute of Anne was passed, transferring copyright ownership to authors for a renewable 14 years during their lifetime, and reducing copyright on existing works to 21 years.

Whereas Printers, Booksellers, and other Persons, have of late frequently taken the Liberty of Printing, Reprinting and Publishing, or causing to be Printed, Reprinted and Published Books, and other Writings, Without the Consent of the Authors or Proprietors of such Books and Writings, to their very great Detriment, and too often to the Ruin of them and their Families …

Fine words, if rather too many, but even at the time the Act was viewed mainly as a way of breaking the monopoly of the Company of Stationers. Printing and distribution of books required capital and authors still inevitably ended up selling copyright to a publisher.

The Company of Stationers being understandably peeved by this attack on their monopoly continued to insist on their own perpetual property rights over copy. It wasn’t until the 1750s after they had engaged in some serious bully-boy tactics towards the nation’s booksellers, to stop what they called ‘piracy’, that there was a backlash resulting in Alexander Donaldson, a Scottish publisher, taking the matter as far as the House of Lords and succeeding in having The Statute of Anne upheld.

Since that time the development of IP law can be viewed, to a large extent, as a product of the struggle for market dominance in which authors’ rights and the public interest are often a mere pretext. This can be clearly seen in the changing emphasis on these rights as it suits governments and vested interests.

Developed nations with a large export market for their intellectual property emphasize copy and patent rights, while developing nations emphasize the public interest or otherwise ignore the entire issue. In other words China is now doing to developed nations what America did to Britain in the 19^th Century. Don’t you love it?

Developed countries, particularly the United States have witnessed the almost complete destruction of their manufacturing base, because of a longstanding process of transferring these operations to developing countries in order to take advantage of relatively low wages and lack of labor market organization.

The idea being for developed countries to export intellectual property to developing nations in order to balance their imports of manufactured goods; an increasing dependence on the exploitation of intellectual property means an increasing fear of IP ‘piracy’. As a result, recent developments in technology which make this theft possible at the push of a button, or the click of a mouse, have created panic in governments and corporations alike.

Ruth Okediji, a leading authority on international trade law and IP policy suggests that the weaknesses in the free trade model are exacerbated by weaknesses in the IP policy model and that this hits developing nations particularly hard.

A bloated apparatus of intellectual protection

In 1994 in his dissenting judgment in a ‘fair use’ dispute involving photocopying, Judge Dennis G Jacobs stressed that Copyright Law is supposed to uphold a balance between a fair return for the author while permitting creative uses of that work; and expressed fear of a future where a ‘transactional’ scheme would bring about a ‘bloated apparatus of intellectual protection”, stultifying rather than encouraging research.

So has this ‘bloated apparatus of intellectual protection’ come about? Let’s take a look.

Davis Guggenheim, Academy Award Winning Director of “An Inconvenient Truth” and “The First Year”, a documentary that follows the journey of five teachers through their first year of teaching in the public school system, describes a scene containing material he would have been able to use, without question ten years ago under fair use terms. The material had to be cut from his recent film because it was impossible to find who owned the copyright and the film’s distributors refused to accept even the very slight possibility of litigation.

“In the climactic scene one of the teachers, who is taking his kids on a field trip for the first time hears the song “Stairway to Heaven” by Led Zeppelin. It is both funny and tragic when he announces to his kids, “This is the greatest song ever written,” as he cranks the volume in his rental van. He is possessed with joy, expressing himself for the first time to his students. They are simply bored. Everything in the movie leads up to this moment and when the audience sees this scene they laugh and cry at the same time, because it is touching and tragic”.

Another disturbing aspect of the current situation is, according to Guggenheim:

 “…the uncertainty of it all. Even most legal experts … have to roll the dice trying to interpret where the current line of fair use is drawn. The truth is that most of us don’t know. And that not knowing means that the most stringent interpretation wins”.

While making a documentary about the stage hands view of Wagner’s Ring Cycle, Jon Else was filming them playing checkers backstage while an episode of The Simpson’s was playing on a small telly in the background. Although this should, and probably would in a court of law, fall fairly and squarely into the fair use category Matt Groening demanded $10,000 for the 4.5 seconds caught on camera and the director was informed that Fox would make litigating the issue difficult and costly.

And then there’s the Rocky theme ring tone that went off during filming of another documentary. Cost $10,000 thank you very much. And the footy player that spontaneously yelled “Everybody dance now”, a line from a song, during filming of the same documentary. Cost $5,000 for three words.

Jim Frazier is a well known Australian wildlife photographer and inventor who, David Attenborough claims, changed the world of nature filming forever through his invention of a truly ingenious lens The design for this lens was ripped off by an American company and the fact that the company had six million dollar litigation insurance meant Frazier had to take it on the chin, almost losing his family home in the process.

These stories illustrate the eternal truth that power and wealth are a great advantage when it comes to getting your own way but as Charles I and Louis XIV discovered, you can’t push it too far without creating a reaction. The rights to privacy and freedom of speech have always proved more important to society than intellectual property rights and there is a long history of over-zealous policing followed by reaction and reform. Such a reaction in 19^th Century Britain led to a movement to abolish patents altogether with a subsequent rationalization of policy. In the Netherlands a similar backlash meant that patents were abolished altogether for a time.

In January 2010 it was reported that a British law firm had tried to drum up business by sending threatening letters to thousands of alleged digital down loaders, causing an uproar in the press and the British Phonograph Industry to distance themselves from the action.

In 2012 The Australian Federation against Copyright Theft a group consisting almost entirely of big American movie producers claimed that Australian ISP, iiNet was ‘authorizing’ illegal downloads of movies. (A bit like holding Telstra responsible for a bank job planned over the phone.) iiNet declared its lack of interest in out-sourcing the protection of other people’s copyright, while the movie houses accused iiNet of endangering the livelihood of the 50,000 Australians in the film industry.

While the protection of Australian jobs was cited as the reason for the lawsuit, the fact is that Australian movies form a very small part of the copyright matter involved; films involved going back as far as 1923. This David and Goliath confrontation was decided in favor of iiNet. Salutations Mr. Justice Cowdroy.

In this context it is hard not to be cynical about the current push in Australia to filter all internet content. The pretext for this being the need to protect children from internet porn. As there are obviously simpler ways of doing this, some of them already in use, it would seem that this is a mere pretext for a law that would otherwise be seen as an invasion of privacy and an unjustifiable infringement of civil liberties. Whatever the motive, censorship or over-zealous policing of IP rights, it is nothing new. What remains to be seen is whether, this time, we take it lying down.

Alternatives to all this fear and silliness

The attitude of many large corporations to piracy is governed by a scarcity model which assumes that if someone pinches something of yours it will make you worse off than before. But in view of the infinitely replicable nature of information brought about by the new technologies this is no longer an appropriate model.

Internet, and other copy based piracy, actually costs a company nix, niente, nothing, a resounding zilch, in real terms. Reports of how many millions of dollars are lost through piracy, and how it threatens the survival of certain industries, may make it sound otherwise, but not so.  The figure is merely an estimate of how much extra could have been made if everyone who nicked a copy could afford to, and did in fact, actually buy one.

James Boyle puts it very nicely in an op-ed article entitled Text is free: we make our money on volume(s) in the US Financial Times of January 22 2007:

The internet makes copying cheap. Businesses that see their livelihood as dependent on the restriction of copying – concentrated in the recording, film, publishing and software industries – are understandably upset. Their goal is to have the same ability to control their content as they had in an analog world but to keep all the benefits of pervasiveness, cost saving, and viral marketing that a global digital network brings. To that end, they have moved aggressively to change laws worldwide, to introduce stiffer penalties, expand rights, mandate technological locks, forbid reverse engineering, and increase enforcement. It is not so much a case of wanting to have their cake and eat it, as to have their cake and make your cake illegal. Yet there are hints in each of these industries of a different business model, one that aims to encourage, rather than to forbid copying.

A November 2009 report by two Global Online Market Research Panels found that illegal downloading of content is actually in rapid decline in the U.S. because of streaming content. It also found that most illegal down loaders were motivated not by the desire for a freebie but by the need for instant gratification.

Speaking of instant gratification: I recently needed a couple of books for research but couldn’t find them in bookshops or in my local or university libraries. This meant a trip to the State Library or a wait of several days – “possibly longer” – for the books to arrive via inter-library loan. Having a dead lion to feed I opted for the trip to the state library, which included much block circling and a parking fine. (I know, I know, there’s no such thing as just popping into the CBC, I just keep forgetting.)

On arriving home, I did a more thorough Google search and found that one of the books was available in pdf format as a free legal download and that the other could be searched extensively online. As you may well imagine, I was totally and instantly gratified beyond belief. Imagine the benefits of being able to download digital copies of books from your state and local libraries. They could even have a renewable time limit programmed into their use if necessary. That idea’s free, as far as I’m concerned, if anyone wants to use it. (They did)

I downloaded that pdf free but will probably buy it: it costs less nicely bound than it would for me to laser print it and I am a sucker for a nicely bound volume.

In 1999 Brazilian Author Paul Coelho, was dumped by his Russian publisher due to falling sales; only a thousand of his books sold in Russia, that year. After finding a new publisher Coelho posted a free downloadable copy of his novel The Alchemist on his website. As a result, even without any other extra promotion, sales of his books increased ten-fold the following year and by 2008 had reached ten million.

In 2008 the band OkGo set up their own recording company and withdrew from working with EMI and Capitol. Rumor had it that it was because the record company disenabled embedding of the band’s Youtube videos. This meant that third parties couldn’t use the videos on their sites, thus preventing viral distribution.The record companies had failed to realize the patently obvious fact (no pun intended) that they were knocking back free publicity.

The Copyleft movement and the Creative Commons

Copyleft is the basis of new IP licensing concept that has evolved over the last decade or so. It can see as copyrighting a work on behalf of that often neglected party ‘all of us” or in other words the public domain. The movement grew out of the free, share and open source software movements. Copyleft allows royalty-free redistribution and modification of derived works with the obligation of reciprocal licensing. What this means is that any third party use or transformation of the work can’t be offered under a more restrictive license than the original. This ensures that new works can be placed safely in the public domain without fear of their being hijacked into private ownership.

The Creative Commons is a non-profit organization; since its inception in 2001, with support of the Center for the Public Domain at DukeUniversity, an estimated 170 million works have taken up Creative Commons Licenses. Copyright law itself provides the means for insuring compliance.

Terms of these licenses vary according to the copy rights an owner wishes to relinquish to the public domain and it is these licenses that allow authors such as Paul Coelho to share his works as he does at the same time enabling him to protect, for example, his film rights.

If the possibility of free downloads is viewed as a challenge rather than a threat it can be used as a highly effective marketing tool. Those who can rise to the occasion will reap the enormous benefits inherent in the internet and those who don’t may well go under screaming ‘foul’.

The internet is a chance for an explosion of creativity and positive change on a global level; whether we will take full advantage of it or not remains to be seen.