Baidu’s perfect paradox: free speech and the right to censor

Originally posted on The Conversation, by Suzannah Wood and Nic Suzor.

According to a US court, ‘free speech’ means internet search engines can choose what they allow to show up and filter out. Brian J. Matis/Flickr, CC BY-NC-SA

China’s biggest search engine has a constitutional right to filter its search results, a US court found last month. But that’s just the start of the story.

Eight New York-based pro-democracy activists sued Baidu Inc in 2011, seeking damages because Baidu prevents their work from showing up in search results. Baidu follows Chinese law that requires it to censor politically sensitive results.

But in what the plaintiffs’ lawyer has dubbed a “perfect paradox”, US District Judge Jesse Furman has dismissed the challenge, explaining that to hold Baidu liable for its decisions to censor pro-democracy content would itself infringe the right to free speech.

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Some assorted thoughts on the ALRC fair use report

The ALRC Report on Copyright and the Digital Economy was released earlier this month. It’s an extremely thorough and well-reasoned analysis of exceptions in Australian copyright law. The main thrust of the report is to recommend that Australia introduces fair use; in the alternative, the ALRC recommends consolidating the fair dealing defences and expanding the category of uses to which they can apply.

Overall approach

The ALRC adopts a conservative approach here. The suggestions it makes are by no means radical – usually, the ALRC suggests that existing Australian copyright jurisprudence will inform any new law, and the report steers well clear of making any suggestion that fair use would reverse some of the more controversial decisions.

This is the report’s greatest strength. The reasoning is unassailable, and the reforms suggested by the ALRC are mostly in the relatively minor form of clarifications, simplification, and fixes to issues that are commonly understood to be problematic in the current law. The ALRC seeks to build consensus on this limited approach – in such a way that pragmatic law reform might be politically feasible. Where there is real disagreement, the ALRC punts to the courts (in terms of identifying whether existing cases would have different outcomes under fair use) or to future law reform processes.

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The only way to fix copyright is to make it fair

Originally posted in The Conversation

Everyone knows there’s a problem with copyright. Artists get paid very little for their work, and legitimate consumers aren’t getting a very fair deal either. Unfortunately, nobody agrees about how we should fix it.

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Fairness in copyright – or why rates of infringement are so high

Here’s a paragraph from an article I’m writing about free-riding. It distils my argument about the role of fairness in copyright, and why the industry is only harming itself when it does things like make Game of Thrones only available on Foxtel:

In recent decades, the copyright industries have been losing the normative high ground. The rational economic model of the user that underpins consumer markets for creative works captures only the self-interested motivations of audiences, and discussions of ‘fixes’ for copyright law generally focus on deterring infringement through legal penalties. Because legal penalties are rare, most recent law reform attention has focused on increasing the severity of punishments and the regularity of enforcement by pushing responsibility for monitoring and enforcement to private entities. This move towards private enforcement typically entails a significant trade-off to due process, as courts lose oversight of increasingly punitive measures. To make things worse, the increasing strength of copyright tends to disconnect the law from practice and the exploitative way the music industry treats artists has greatly reduced the perceived fairness of copyright business models. The copyright industries have attempted to shift social norms back in their favor, but their attempts have been somewhat clumsy to date (“you would’t steal a car!”).

No wonder, then, that users infringe copyright – as the fairness norm around paying for access weakens, people will more often act as rational actors. Since the likelihood of getting caught is still minuscule, free-riding is often the rational choice.

Michael Geist: Taking user rights seriously — two weeks that changed copyright

At the Global Congress in Cape Town, Michael Geist reflects on the two weeks that changed copyright in Canada in 2012. Canada went from a maximalist copyright trajectory in 2005 to the global champion of user rights in 2012. Canada’s new legislation includes the most favourable provisions for users across a huge range of issues; Canada’s Supreme Court cemented users rights as a practical tool in five decisions delivered on a single day in 2012.

Geist reflects on the lessons from Canadian reform. Why did it happen?

  1. Politics.

  2. Personalities. Chief Justice McLachlin & Justice Abdella provided a vision about what copyright was for. Politicans: Ministers Clement & Moore came with a vision for reform; MPs Bulte & Angus were able to argue for the interests of their constituents. Copyright scholars were active in shaping the discourse.

  3. Most important was the public. 90,000 that joined facebook group; 8,000 that participated in the consultation. Two letters from a constituency are enough for an MP to take notice and pay attention.

Geist seems optimistic about grassroots reform, if the public can become organised. Of course, this probably oversimplifies and underestimates the massive amount of work the Geist and others put in to organise the opposition to Canada’s maximalist proposals.

Ruth Okediji: IP rights and the African innovation paradox (Global Congress 2013, Cape Town)

Ruth Okediji makes an argument that we need to resist and avoid consenting and legitimising a system of command and control in IP. Okediji’s starting point is that the essence of the fourth wave of IP geopolitical change is not about harmonisation: it’s about fundamentally de-anchoring IP from the public interest. It’s about a unilateral effort to supra-design an IP system that works for some interests and regions and not others.

The justifications for IP are based on a series of paradoxes and assumptions that IP is directly linked to development. Most strikingly, the assumption that incentives are required to generate creativity and innovation:

“What we see, in many ways, is that the market has come to define the public interest. This is a paradox. Not only is it a paradox, it is inherently contradictory.”

Okediji argues that the key question about IP in Africa is not whether there is innovation and creativity on the African continent, but whether the IP system counts the innovation that exists. These IP categories are not static — they are political and social. Okediji argues that the inability of IP to deal with African innovation and creativity is not an issue of methodology, but one of systematic manipulation.

Ultimately, Okediji’s argument is that we need to directly challenge the regulatory capture of IP. The most pressing issues to challenge are not the gap between theory and practice, or the gap between politics and public interest. Fundamentally,

“we need to address the gap between where we are today and where we want to be tomorrow.”

The key actors for change that Okediji identifies are institutions. Okediji argues that while IP norms are relatively static, institutions are versatile. Most useful innovations that we have seen have not come from the texts, but from local institutions looking at a set of facts and circumstances and effecting change. Building and empowering these institutions is the key challenge for Africa.

We need to focus on the consequences of the IP regime on innovation welfare. IP rights are just one of many tools to serve the goals of access to knowledge, encouraging innovation, and development. Okediji points to four main implications:

  1. We need transnational systems of innovation. This means seamless knowledge flows: limitations and exceptions are critical, but so is openness.

  2. The terms of participation are fundamentally important – a move from property to contracts.

  3. We need to understand the role of IP in ways that allow communities to share, participate, and benefit from the returns.

  4. The public interest is about ensuring that the African peoples get to participate — and at a price that they can afford to pay.

Ahmed Abdel-Latif: Change – Global Congress liveblog

Ahmed Abdel-Latif talks about change in IP. We’re interested in IP because we’re interested in change, but we need to think much more strategically about how change comes about. Abdel-Latif argues that change happens when three factors come together:

1 A compelling narrative;

2 The right moment; and

3 Strong networks.

Success stories, where we have had all three factors, include Doha Development Round (2001), WHO Global Strategy and Plan of Action on Public Health, Innovation and Intellectual Property (GSPOA) (2008), SOPA/PIPA & ACTA (2010-2012), Marrakesh VIP Treaty (2013).

Conversely, we have not had a confluence of these factors in the debates around the protection of traditional knowledge or access to clean technologies. The narrative hasn’t been well-formed, and coordination has been lacking. The result has been stalemate.

Abdel-Latif’s message is that we need to be more strategic about how we attempt to influence policy, on a global and a regional level. He argues that activists need to maintain a sense of urgency about the current pressing issues, but also think a bit more ambitiously about the positive reform agenda, in order to create a persuasive narrative and identify the right time to act. Most importantly, we need to link these debates over IP with broader social issues – show how IP reform is linked to development, jobs, social justice, etc.

Dr Kelly Purser on Legal capacity: the legal and medical interface

Today at QUT Law research seminars, Dr Kelly Purser talks about legal capacity, focusing on the big problems: wills, advance health directives, and powers of attorney.

Australia is an aging population, which means there will be lots of people without capacity. Incidences of dementia are likely to increase 6-fold by 2050. It’s already the single largest cause of disability in people aged 65 or older.

Currently, there are no guidelines for assessing capacity. It’s all left to the individual solicitor and sometimes a doctor. “It just comes down to dumb luck.”

Purser’s evidence shows that doctors are really hesitant to make an assessment of capacity. They don’t want to get it wrong and get dragged into court.

Purser took a mixed methods approach: surveyed 150 lawyers and doctors, then 30 interviews. Research was done within the framework of therapeutic jurisprudence, which highlights three issues: incompetency labeling (making a determination that someone lacks capacity is often a self-fulfilling prophecy); the role of the neutral fact finder; and autonomy and control.

The big outcome of Purser’s research is that there’s not enough discussion between legal and medical professions. Lawyers often do not explain what the processes are and what is expected; Doctors are then hesitant to get involved and don’t know how the system works.

Purser argues that we need national guidelines on assessing capacity. This is going to be a much bigger issue as we start to move towards supported decision making (e.g. under the CRPD). We need education, information, and training for both doctors and lawyers. Lawyers need to understand the standards of capacity, so that they can explain what doctors need to do.

Finally, we need to encourage people to get these arrangements sorted out in advance of losing capacity.

You can see Dr Purser’s research here.

Google books is fair use, but Australian law restricts innovation

Originally published in The Conversation.

Australia wants to foster innovation in a digital economy, but our copyright laws discourage businesses from investing in new technologies and make it harder for individuals to access the knowledge upon which innovation is based. Yesterday’s US decision in the Google Books case shows why US copyright law is much more supportive of innovation than ours.

The long, drawn out litigation between the Authors Guild and Google has reached a conclusion: Google’s ambitious mass-digitisation project, to scan the world’s books and make them discoverable online, is “fair use”.

Normally, scanning books counts as an infringement of copyright – the law prohibits people from making copies of books without permission. “Fair use” is the safety valve in this system: it enables people to do things with copyright works that are in the public interest.

Without fair use, many socially valuable reuses of copyright material would require the explicit permission of the copyright owner in advance. Seeking permission is a real problem; often, it is impossible to track the owner down, because copyright is automatic and lasts for 70-plus years after the author’s death.

Even when the owners can be found, sometimes they refuse to give a licence, or charge a price that is unaffordable. Fair use enables a balance of sorts: it allows people to reuse copyright material in ways that are valuable to society and not too harmful to the copyright owner.

This Google Books decision means a massive digitisation project, with huge social benefits for access to knowledge, is legal under US law.

Unfortunately, this would never be possible in Australia. Australia doesn’t have “fair use”; instead, we have a set of “fair dealing” defences, which allow people to make a very limited range of uses.

These include research and study, criticism and review, parody and satire, and news reporting. We also have a few very technology specific exceptions – it’s permissible to make a digital copy of a VHS tape but not a book. You’re allowed to copy the music on a CD to a MP3 player but not a movie from a DVD to a tablet.

Google couldn’t digitise books in Australia; without fair use, it’s not possible to fit innovative new technologies into old, inflexible categories.

Google probably couldn’t even make a search engine in Australia: without fair use, there’s no exception for indexing and searching web pages. YouTube certainly couldn’t have started in Australia: in the US, there are “safe harbours” that protect organisations from copyright infringement claims when their users infringe copyright, as long as there is a notice and take down scheme in place.

Australia’s equivalent is drafted so narrowly that it excludes almost everyone who would want to rely on it.

Enhancing the market

Ten years ago, Google had an ambitious plan to bring the world’s paper books into the digital age. Many books are only available in libraries. Others are obscure and difficult to track down.

Google wanted to do for books what it had already done for the web: make the unruly mess of existing information searchable, available at our fingertips. It set out to digitise more than 20 million books, at a fairly heavy cost which it was prepared to bear.

Google knew that it could never get permission in advance from every author and publisher, so it used the same logic that applies to its search engine: making a digital copy of a book, just like a web page, that serves mainly to help readers and potential customers to find the books they are looking for, must be fair use.

The Court found Google’s use was not likely to hurt copyright owners. While Google’s use is commercial, it doesn’t sell the books. It doesn’t allow people to view more than a snippet of the book (unless the publisher explicitly allows it), so it doesn’t provide a way for consumers to avoid paying for books. It doesn’t run ads on the webpages that include snippets of the book.

If anything, the Court found, it might enhance the market by providing authors with an opportunity to have older books noticed and searchable, rather than languishing on bookstore and library shelves. On top of helping discovery, Google helps channel money to publishers and authors by providing links to online retailers where each book can be purchased.

The decision is an important win for Google. But it’s also important for society because it helps people get access to the world’s knowledge and culture. In an information economy, such access is crucial for learning, personal growth, creative play and innovation.

The project also has other valuable uses: it allows new forms of research into our culture through data mining, and it allows unprecedented access to blind people, who for many years have been facing a book famine, where only 1-5% of books have been available in any accessible form.

Digitising heritage

Given the great social benefits of the project, we might wish that our public institutions had played a greater role in digitising our shared heritage, but governments have been slow to invest in these types of projects.

It took a giant company like Google to take a risk and see whether it could create a project that would be both profitable for itself and good for society. The decision means progress and social access cannot be halted by the fears of publishers and authors who are not willing to invest to make their works available online but are also not willing to allow others to do it.

It is worth noting many publishers see Google Books as a good deal – it helps drive sales, after all. But the structure of copyright law means Google needed permission from each copyright owner, regardless of whether it could actually find them or not.

This decision means that, where Google is performing a socially valuable function, it’s not harming authors and publishers. The decision will likely be appealed, of course, but it is an important win for our access to our shared cultural heritage.

Australia is currently going through a copyright reform process. It seems probable that the Australian Law Reform Commission will recommend that Australia introduce fair use, in order to increase public access and opportunities for innovation. If the government is serious about encouraging private innovation, this reform is crucially important.

Otherwise, Australia will continue to watch as innovation happens elsewhere, in countries that have more sensible and balanced laws.

Peaceful revolutions: crowdfunding the commons (podcast)

Today I presented an outline of my research at QUT Law School‘s lunchtime research seminars.

This project examines new models for producing knowledge and cultural goods – books, films, and music – through collective action. For a long time, copyright scholars have assumed that apart from some limited public subsidies, a private property right in expression (copyright) is necessary to coordinate the production of new works. Copyright provides a mechanism for investors to recoup their costs in production, but it requires an expensive trade-off with public access: copyright goods are underdistributed and underutilised throughout society. In recent years, the assumptions behind copyright are being challenged by the increasing visibility of commons-based models of production, which do not always require limiting access to knowledge and cultural works. Peer-production (open source software, Wikipedia) and the wealth of amateur content that flourishes on the internet have falsified the assumption that private incentives are necessary to encourage production. Now, the assumption that limiting free-riding is necessary to fund expensive professional cultural production is also being challenged: ‘peaceful revolutions’ in copyright business models are seeing groups of funders pledging to fund the costs of production in advance in a series of recent experiments. At an individual level, crowdfunding enables the large scale, distributed financing of production processes by consumers; at an institutional level, consortia of funding organisations are coming together to develop larger, more sustainable efforts.

By enabling producers to raise their costs in advance from their ultimate funders, rather than relying on sales of the final works creative works to recoup their investment, commons-based models potentially enable much greater access to knowledge and cultural goods. Unfortunately, little is still known about when and how commons-based cultural production models can be successful in the face of potential free-riding. This research seeks to understand the conditions and strategies for successful collective action across a range of creative industries and the implications this might have for copyright theory and policy. Where these peaceful revolutions are successful, they represent significant transformations that could greatly enhance the dissemination and reuse of knowledge and culture, which is in turn crucial for human flourishing and growth in an innovation economy.

Here are the slides and the audio recording for the event.