Copyright 2010: Moral rights and open licensing; graduated responses and the rule of law

Over the last two days, I have been at the Copyright 2010 Conference hosted by the CIPL at ANU and organised by Dr Matthew Rimmer.

I presented two papers at this conference, one on moral rights and open licensing and another on graduated response schemes and the rule of law.

You can grab my slides for these here:

Abstracts below the fold:

Integrity, attribution, and exploitation: contractual and normative moral rights protection in open licensing

Over the last twenty years, the use of open content licenses has become increasingly and surprisingly popular. The use of such licences challenges the traditional incentive-based model of exclusive rights under copyright. Instead of providing a means to charge for the use of particular works, what seems important is mitigating against potential personal harm to the author and, in some cases, preventing non-consensual commercial exploitation. It is interesting in this context to observe the primacy of what are essentially moral rights over the exclusionary economic rights.

The core elements of common open content licences map somewhat closely to continental conceptions of the moral rights of authorship. Most obviously, almost all free software and free culture licences require attribution of authorship. More interestingly, there is a tension between social norms developed in free software communities and those that have emerged in the creative arts over integrity and commercial exploitation. For programmers interested in free software, licence terms that prohibit commercial use or modification are almost completely inconsistent with the ideological and utilitarian values that underpin the movement. For those in the creative industries, on the other hand, non-commercial terms and, to a lesser extent, terms that prohibit all but verbatim distribution continue to play an extremely important role in the sharing of copyright material. While prohibitions on commercial use often serve an economic imperative, there is also a certain personal interest for many creators in avoiding harmful exploitation of their expression – an interest that has sometimes been recognised as forming a component of the moral right of integrity.

One particular continental moral right – the right of withdrawal – is present neither in Australian law or in any of the common open content licences. Despite some marked differences, both free software and free culture participants are using contractual methods to articulate the norms of permissible sharing. Legal enforcement is rare and often prohibitively expensive, and the various communities accordingly rely upon shared understandings of acceptable behaviour. The licences that are commonly used represent a formalised expression of these community norms and provide the theoretically enforceable legal baseline that lends them legitimacy. The core terms of these licences are designed primarily to alleviate risk in sharing and minimise transaction costs in sharing and using copyright expression.

Importantly, however, the range of available licences reflect different optional balances in the norms of creating and sharing material. Generally, it is possible to see that, stemming particularly from the US, open content licences are fundamentally important in providing a set of normatively accepted copyright balances that reflect the interests sought to be protected through moral rights regimes.

As the cost of creation, distribution, storage, and processing of expression continues to fall towards zero, there are increasing incentives to adopt open content licences to facilitate wide distribution and reuse of creative expression. Thinking of these protocols not only as reducing transaction costs but of setting normative principles of participation assists in conceptualising the role of open content licences and the continuing tensions that permeate modern copyright law.

Tensions Between the Rule of Law and Graduated Response Schemes

The recent iiNet decision highlights an important tension in copyright law over the role of intermediaries in responding to what is seen as a crisis in rates of online infringement. Recent legislative developments in the UK, New Zealand, and France seek to require ISPs to terminate the accounts of subscribers suspected of infringing copyright on a number of occasions. The iiNet decision at first instance suggests that such a scheme cannot easily be implied as part of Australian authorisation liability and that a legislative scheme will likely be required if one is to be introduced.

The recent decision of the French Constitutional Council on the first iteration of a French graduated response scheme highlights fundamental rule of law concerns with the creation of an extra-judicial punitive regime designed to curb rates of copyright infringement. The desire to reduce the costs of copyright enforcement is problematic when considered against the requirements of due process, predictability, and transparency expected in liberal democratic theory. The crisis-management based goals of such schemes can also be difficult to reconcile with requirements of proportionality in the enforcement of legal rights. These problems compound with the increasing recognition that internet access is fundamentally important to all aspects of participation in society.

This paper examines these tensions and seeks to identify whether a scheme based upon the termination of internet access of households or individuals found to have infringed copyright can be compatible with rule of law theory. At a minimum, such a scheme is likely to require significantly more judicial oversight than has been proposed by the applicant-appellants in the iiNet litigation. Whether it is possible to decrease enforcement costs without unduly sacrificing due process is likely to be an ongoing debate over the immediate future.

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