Has WikiLeaks Gone Far Enough?

November 4, 2011

By Jake Goldenfein

Before a full house at Sydney’s Festival of Dangerous Ideas the question was posed to Julian Assange – ‘has WikiLeaks gone far enough?’ His answer, of course, was an emphatic ‘no’. But in justifying that position Assange revealed more about his organisation’s mission and ethical validation than in many previous public appearances.

From Ellingham Hall in Norfolk, Assange’s image beamed into the Opera House theatre where he addressed not only whether WikiLeaks had gone far enough, but also what more WikiLeaks had to do. Questions since rendered more germane by the announcement that WikiLeaks has suspended further publication and may cease operations by the end of the year.

WikiLeaks and conspiracy

A passage cited from Aleksandr Solzhenitsyn’s novel Cancer Ward (in which a mother questions whether or not to burden her son with the rib-breaking weight of the truth) inferred Assange’s continuing mission and what WikiLeaks is yet to achieve – not simply greater transparency, but the revelation of hidden truth. While Assange acknowledges we can never really know ‘truth’, he argues what is false can be determined with enough information. And that negation, according to theory that animates WikiLeaks, exposes how governments strive for domination as well as the conspiracy that enlivens them.

For Assange, the conspiracy is a transnational security complex run amok. No longer a simple ‘patronage’ network or cold war relic but an elite security shadow state organised through confidential networks and agreements between military contractors and intelligence agencies. Assange cited research suggesting the existence of over 900,000 ‘top secret’ security clearances in the US, implicating one in every 300 citizens – including children, as evidence of the secret network. And further proof, for Assange, that the shadow state is gaining power is in the 6% funding increase for the US military complex despite overall tax revenue dropping 20% since the global financial crisis.

These claims reflect an aspect of WikiLeaks’ ideology located outside general government transparency and accountability activism. While Assange agrees that external government accountability is essential, WikiLeaks’ recent action challenges the categorisation of the group as a benign actor lawfully pursuing governmental accountability and participatory democracy. Rather, it seems Assange seeks to expose something more fundamental – to free us from illusion – he wants, as McKenzie Wark describes, ‘the workings of the world untied’ (see ‘Abstraction/Class’ in A Hacker Manifesto (2004)).

Early in the WikiLeaks media frenzy Guy Rundle insightfully wrote about the progressivist, even Marxist/Leninist motifs in WikiLeaks’ mode of action, as extrapolated from Assange’s 2006 essays ‘State and Terrorist Conspiracies’ and ‘Conspiracy as Governance’. Rundle saw a fissure between the networked global anti-capitalist movement and WikiLeaks’ counter-conspiratorial practice. He saw actions challenging the furtive corporate-state nexus rather than a general push for accountability.

For Rundle, these actions include releasing categorically large volumes of information such that the targeted powers cannot manage the process. Massive leaks, not with the anarchic goal of dissolving governance, but intended to ‘uncouple governance and conspiracy’. Leaks large enough to prohibit regimes from restabilising and eventually incorporating leaking as ‘a safety valve, steadily releasing pressure in a version of Marcuse’s “repressive tolerance”.’

WikiLeaks’ data ‘dumps’

It is precisely this scale of leak however, that provokes the greatest ethical problem for WikiLeaks. Early in September WikiLeaks released its entire cache of unredacted US Embassy Cables after discovering they were accessible using a password published in Guardian journalist David Leigh’s book ‘WikiLeaks: Inside Julian Assange’s War on Secrecy’. Assange explained that once the cables were available online publication was the only rational action to preserve the information’s ability ‘to create reform and stoke revolutions’.

WikiLeaks’ former media partners all publically denounced the action, however Assange argued that condemnation was mainstream media abusing its voice to protect its institutional integrity. Instead, Assange claimed the release enables WikiLeaks to be used as a lens into the failures and biases of mainstream media. He argues that by facilitating comparison of the mainstream media stories and the original sources, the release demonstrates the spin and ‘corruption’ in the most powerful English speaking media institutions.

When asked whether ‘it was acceptable’ to publish the names of individuals who may be endangered by the unredacted cables Assange’s response resonated the ideological position of the organisation. He noted that when WikiLeaks began releasing the cables 18 months prior they established rigorous processes, in concert with major media organisations, to ensure names were properly concealed. They even courted the US State Department for assistance to ensure publishing the cables would not potentially harm informants. However, Assange argued the mainstream media’s editorial decisions, including New York Times’ failure to publish a story on ‘Taskforce 373’ (a military unit performing extra-judicial assassinations in Afghanistan), and redacting the cable that described a Reuters correspondent working for US intelligence indicated coercion by the very ‘shadow state’ Assange was trying to illuminate.

As ‘3000 volumes of international political history over the last 6 years’ and ‘the greatest intellectual political treasure put into the historical record in modern times,’ for Assange, the ethical justification for the bulk publication lies in the character of the material itself and its sufficient size to have ramifications for conspiratorial state actors.

WikiLeaks and lawfulness

These actions however, are a blatant non-observance of the framework of media freedoms and responsibility forged by the early press and still governing media today. Assange’s position suggests that the laws governing media, constitutive of where the public interest lies with respect to ‘the right to know’, are no longer relevant. This ideology, clearly necessary to the WikiLeaks theory, prosecutes WikiLeaks dissociation with lawful transparency activism and highlights the radicalism Assange is willing to pursue to achieve his goals. Indeed Assange’s circumventing legal institutions suggests tacit agreement with legal historian A.W.B Simpson’s criticism of ‘judicial passivity’ in failing to exercise control over ‘the vigilant state’ (see ‘The Judges and the Vigilant State’ (1989) 4 Denning Law Journal 145). That is, the state or executive who at the same time as protecting us from espionage, terrorism and subversion, threatens liberty and seems to engage in deceit and illegal activity on an uncertain scale. Therefore, outside the institutional boundaries of what we have ‘the right to know’, WikiLeaks requires a personal choice whether it is dangerous, or rather a force weighty enough to disrupt the status quo. This, of course, remains and will remain difficult until WikiLeaks’ systemic consequences are better known.

Jake Goldenfein is a PhD student at the Melbourne Law School

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WikiLeaks is a force for good?

June 30, 2011

I was recently invited to attend the Intelligence Squared debate asking whether ‘WikiLeaks was a force for good?’ and contribute a small article about the debate for the organiser’s newsletter (the St James Ethics Centre). The article was to be a legal companion to the article contemplating the ethical aspects of WikiLeaks by Dr Simon Longstaff, Executive Director of the St James Ethics Centre and Chair of the Intelligence Squared Australia debates. At the debate, this polemical issue provoked a tempestuous dispute by extremely gifted speakers including: Dr Suelette Dreyfus (author of ‘Underground’), Kristinn Hrafnsson (current spokesman for WikiLeaks), and Professor Stuart Rees (Emeritus Professor at Sydney University and Director of Sydney Peace Foundation) for the positive; and Gareth Evans (former Foreign Minister), Tom Switzer (political writer, editor, adviser and lecturer), and Dr Michael Fullilove (Director of the Global Issues Program at the Lowy Institute) for the negative. Interestingly, the poll results from before and after the debate suggest that while those believing WikiLeaks is a force for good remained undeterred, those undecided before the debate were markedly influenced against the proposition by the end. The precise results, as well as the audio of the debate are available from the IQ2 website.  – Jake Goldenfein

 

WikiLeaks is a Force for Good

By Dr Simon Longstaff

Speaking at the 25th Asia Pacific Roundtable in Kuala Lumpur in June 2011 Rowan Callick (The Australian) quoted Australia’s Ambassador to the United States, Kim Beazley who stated “[WikiLeaks is] like American foreign policy being neutron bombed” – the implication being that while the infrastructure of the US State Department survives, the people within the edifice have been badly damaged. Beazley’s analogy is, at the very least, striking. It is also at the more extreme end of the rhetorical scale employed by WikiLeaks’ critics. The core of Kim Beazley’s argument, however, is shared by many members of the diplomatic community. Their chief complaint is that WikiLeaks has undermined a fundamental precursor for the conduct of diplomacy – the maintenance of confidentiality of communications. The argument goes that, without a guarantee of confidentiality, the otherwise essential exchange of information will be curtailed for fear of exposure. Given that effective diplomacy can prevent or resolve conflicts capable of destroying the lives of innocent people, it is further posited that WikiLeaks is a significant source of harm – and not just a minor inconvenience.

It should be noted that this argument does not rely on the claim that WikiLeaks’ release of cables caused serious harm to those named in the published cables. Appearing before Congress, US Secretary of Defense. Robert Gates, testified that no damage had been done to active operations and that no American life had been put at risk by the activities of WikiLeaks. The fate of those who provided information to US officials, however, may not have been so benign – especially if operating under oppressive regimes in countries where even a modest degree of candour can have dire consequences for the individuals concerned.

At face value the criticism mounted by Beazley and those of like mind would seem to have merit. After all, who would deny that effective diplomacy is an important public good. It is less clear, however, that WikiLeaks acted in a manner to undermine the preconditions for diplomacy. For example, although diplomats require some matters to be kept secret, it does not follow that all matters they claim require secrecy should be accorded this same condition. The scope of the Official Secrets Act in Britain was once so expansive that it included the House of Commons’ dining room menu. No reasonable person would assume secrecy requirements for such details. In fact, much included in the trove of diplomatic cables released by WikiLeaks was mundane. Indeed, the level of American security accorded to the cables was relatively low – with access granted to several million people connected to the Secret Internet Protocol Router Network SIPRNet used to share information in the ‘war on terror’. It is unlikely the United States government would have granted such extensive access if it had considered the cables contained highly sensitive information.

The other point worth noting about the contentious releases is that WikiLeaks subjected itself to external review by agreeing that the editors of mainstream news outlets should vet the material in order to remove any information judged to be genuinely sensitive, This is an important point. In the case of the US cables, at least, WikiLeaks was prepared to accept the judgement of editors who society routinely trusts to be prudent and responsible when determining what should or should not be published. The editors involved in handling the sensitive diplomatic material have been explicit about their determination to exclude material that would have caused risk, rather than mere embarrassment, to others.

As most commentators have noted, the debate about WikiLeaks is about much more than the particular case of how the US diplomatic cables were handled. The larger question concerns the extent to which society should have access to public information that is relevant to its interests. There is a significant difference, however, between what is in the public interest and what the public happens to be interested in – a distinction not always applied by the media. Governments often claim to be guardians of the public interest. They claim a corresponding right to decide what the public should know – and when we should know it. It is also clear, however, that governments will often make decisions in line with personal or political interests – interests that are not always aligned with those of their citizens. Add to this the kind of caution that would include a dining room menu under an official secrets act and it soon becomes evident that it would be unwise to rely exclusively on the judgement of governments.

The vast majority of people recognise the importance of maintaining some measure of secrecy in their own lives. They also know governments must keep some matters secret, for example for reasons of national security. What WikiLeaks has prompted is a public discussion about where the balance should lie. The June 2011 Intelligence Squared debate which is now available at iq2oz.com pondered the proposition WikiLeaks is a force for good. Speakers for: Dr Suelette Dreyfus, Kristinn Hrafnsson, current spokesperson for WikiLeaks, Professor Stuart Rees. Speakers against: Gareth Evans, Dr Michael Fullilove, Tom Switzer.

Dr Simon Longstaff is Executive Director of St James Ethics Centre and Chair of Intelligence Squared Australia debates.

This article will also be published in the St James Ethics Centre Newsletter and at thepunch.com

 

WikiLeaks: legal status and political choices

By Jake Goldenfein

A survey of whether or not WikiLeaks is a force for good does not necessarily consider the legality of its actions. At this stage there is only indirect legal action against WikiLeaks. For example, many consider the accusations against Assange to be politically directed at the WikiLeaks organisation, and the severe incarceration of Bradley Manning, the source of a great deal of WikiLeaks material, surely has a deterrent motivation targeting potential leakers. Beyond that, neither WikiLeaks nor its activities are outlawed. A Grand Jury in the US is attempting to assemble a case against WikiLeaks for crimes under the Espionage Act, Computer Fraud and Abuse Act, and for conspiracy, however most commentators consider constitutional free speech protections to be a significant impediment to prosecution. But WikiLeaks legal status also reflects its ‘organisational status.’ That is to say, whether WikiLeaks is considered a journalistic organisation, a publishing organisation, or simply a source, affects which laws are relevant. The laws applicable to each category vary, and despite often being treated by mainstream media as simply a source of leaks, WikiLeaks is not being prosecuted as such, meaning it need only comply with laws relevant for journalists or publishers. American precedent such as the famous Pentagon Papers case suggests that the messy balance between the administration’s need for secrecy and the public’s right and need to know should enable the administration to function, subject to occasional disclosures to keep it honest. ‘The rare exceptions would require a combination of high likelihood, magnitude, and immediacy of harm to justify suppression,’ meaning there is a very high threshold to WikiLeaks prosecution under that doctrine.

It is difficult to assess whether WikiLeaks legal situation would be different if pursued under Australian law considering we have no express constitutional right to free speech (though we do have an implied right of political communication), and our whistle-blowing laws do not apply to the media at large. Commonwealth v John Fairfax and Sons (1980) 147 CLR 39 (‘Defence Papers Case’) and Attorney-General v Heinemann Publishers (1987) 8 NSWLR 341; (1988) 165 CLR 30 (‘Spycatcher’) are potentially relevant Australian cases indicating that under our law WikiLeaks may be exposed to a breach of confidence action, and the Fairfax case points out that copyright may also be relied upon where documents are copied. But prospects of success are not guaranteed and there are some important limitations and qualifications on liability (for instance the defence of fair dealing for purposes of news reporting vis-à-vis copyright, the need to demonstrate Australian public interests vis-à-vis breach of confidence). Of course assessments here will be very fact specific and we do not necessarily know all the relevant facts at this stage. Katy Barnett wrote a nice piece on ‘Spycatcher and Wikileaks’ in the January issue of the Fortnightly Review.

Despite its relatively stable legal status, WikiLeaks has certainly still come under attack from institutional actors. And those attacks, generally effected through privately owned intermediaries, expose some of the more concerning aspects of the new media environment in relation to freedom of the press. ‘Extra-legal’ actions (including denial of service cyber-attacks) by companies that control crucial aspects of cyber-infrastructure like Visa, Mastercard, Paypal, EveryDNS, and Amazon, betray a private-public partnership with dangerous censorship implications. Scholars like Yochai Benkler suggest these censorship actions would have been practically impossible under legal and constitutional frameworks.

After the original reaction to the ‘CableGate’ leaks, the rhetorical framing of WikiLeaks shifted away from a major threat to the peaceful world order towards a more realistic suggestion that it undermines the checks, balances and accountability established within traditional media organisations. Indeed, no significant harm (apart from embarrassment) to any diplomatic or military institution has yet been claimed as a consequence of the leaks, suggesting the established media and state institutions reacted primarily from a motivation of anxiety than actual danger. However, that anxiety could be valid, as WikiLeaks may have serious implications for traditional media models as well has profound consequences for nation states and democracy. For example, Professor John Keane from University of Sydney places WikiLeaks at the vanguard of the emerging ‘monitory democracy’ in which democracy has shifted away from simple ‘parliamentary democracy’ towards a form of democracy that includes the permanent scrutiny of power wherever it is exercised.

Therefore, if we take the starting position that WikiLeaks’ publication of materials (often in conjunction with mainstream media) is not clearly illegal (although not clearly legal either), and that the releases seem to have caused no real damage to date at least, then deciding whether or not WikiLeaks is a force for good requires the personal determination of whether we approve of WikiLeaks’ fundament and mission, an inherently political decision. On the whole do we consider the outcomes of WikiLeaks’ actions beneficial?

WikiLeaks’ neutron bomb effect described above by Dr Longstaff, may indeed curtail some exchange of information, however that itself is not determinative of whether the outcomes of WikiLeaks actions are positive or negative. Without doubt governments need secrecy for certain actions (for example effective diplomatic practice), however they also need sufficient trust from the citizenry to maintain that secrecy. Raimond Gaita recently said in a lecture at Melbourne Law School that the current political situation (for example the spin and misinformation) has led to an absence of the conditions of sober judgement and ultimately an incapacity for people to consent to their states’ actions. In that sense WikiLeaks is facilitating the information necessary for consensual governance. Another fundamental effect was described by Glenn Greenwald, who recently wrote that the republican ideal requires that governments are transparent and citizens are private, yet the past decade has seen a wholesale reversal of that ideal. WikiLeaks therefore stands as a subversion of that reversal, a goal that goes beyond embarrassing diplomats or bringing political pressure to end a senseless war. Finally, commentator Guy Rundel has argued WikiLeaks gives whistleblowers a new choice, a chance to avoid the decision between life and truth, with the outcome that pursuing honesty can result in a flourishing of life rather than a suicide mission. Perhaps these outcomes are worth diplomats being slightly more cautious in how they communicate, or perhaps not.

Jake Goldenfein is a PhD student at the Melbourne Law School

This article will also be published in the St James Ethics Centre Newsletter.

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Weapons in the Piracy Wars: COICA and Domain Name Seizures

March 17, 2011

By Jake Goldenfein

You may have encountered this image if you recently tried to stream a sporting event online. Domain name seizures in the US occur under civil forfeiture and seizure provisions in the Crimes and Criminal Procedure title of the United States Code. Being territorially restricted, those provisions allow the US Immigration and Customs Enforcement agency (ICE) to distrain websites with a .com, .net or .org suffix.

Recent seizures of websites linking streamed sporting events (conveniently 10 days before the Super Bowl) were the directive of phase 3 of ICE’s Operation ‘In Our Sites,’ which began in June 2010. The mandate of ‘In Our Sites’ goes beyond sporting events however, and has targeted websites connected to counterfeit goods, child pornography and first-run movies. Although the process and propriety of those seizures have been questioned, presently working its way through the US political system is the Combating Online Infringement and Counterfeits Act (COICA) that will provide an expedited process to block domains and extend ICE’s reach to content hosted outside the US.

COICA (S. 3804) would authorise the Attorney General to obtain injunctions in rem against websites ‘dedicated to infringing activities.’ Sites are defined as dedicated to infringing activities if ‘primarily designed’, have ‘no demonstrable commercially significant purpose or use other than,’ or are ‘marketed by its operator,’ as offering copyright infringing goods.

Effectively, COICA creates an internet blacklist with ‘offending’ websites added by Court order. Originally there was a second blacklist controlled by the Attorney General without judicial oversight, however that was jettisoned in the bill’s latest iteration. By obtaining a Federal Court injunction, the Attorney General orders U.S. domain name registrars to stop resolving blacklisted domains, leading users instead to an error message.

For infringing domains outside of the U.S, the bill demands internet service providers block offending foreign addresses. This does not prevent access outside of U.S territory, but rather is aimed at preventing the importation into the US (censoring) of goods and services offered by websites deemed ‘dedicated’ to infringing activities.

Introduced by Democratic Senator Patrick Leahy in September, the bill received unanimous approval by the Senate Judiciary Committee in November 2010 under Leahy’s chair. Not surprisingly three of Leahy’s top five campaign contributors are large media organisations. Yet substantial opposition from various groups including Internet Engineers, Human Rights Groups, the Net Coalition, some Senators, and law professors has been successful in preventing the bill passing a full vote on the Senate floor, leading to another Judiciary Committee hearing on 16 February, which led to discussion of substantial modification, and likely a follow-up hearing.

Arguments against the bill include:

  • Blacklisting of websites by Justice Department officials without sufficient judicial oversight offends due process and threatens legitimate political speech.
  • Definitions within the bill, including ‘facilitating infringement’ and ‘dedicated to infringing activities’ are very broad.
  • Blacklisting for copyright infringement purposes may undermine U.S. secondary liability law as well as existing copyright exceptions, limitations and defences.
  • The censorship process causes entire domains to vanish, not just infringing pages or files.
  • The bill creates precedent for internet censorship, and congress should consider the effect for countries less protective of citizens’ rights of free expression.
  • The extraterritorial reach of the court prevents a full and fair trial with all interested parties present.
  • The bill may affect legitimate digital services such as cyberlockers if the Department of Justice decides that piracy is ‘central’ to their businesses.
  • Blacklisting may apply to sites that discuss and advocate for P2P technology or piracy because they sometimes link tools and information intended for file sharing, despite the otherwise political nature of their speech.
  • Censorship may undermine the stability of the internet by encouraging the use of circumvention measures and rerouting internet traffic away from the U.S.

But perhaps the most compelling arguments are found in the joint letter from 49 legal academics in the U.S. Citing jurisprudence, they contend ‘the bill amounts to a constitutional abridgment of freedom of speech because it directs courts to impose “prior restraints” on speech, which are the most serious and least tolerable infringement of First Amendment rights.’ They argue such cases ‘require a court, before the material is completely removed from circulation to make a final determination that material is unlawful after an adversary hearing.’

Contrary to that requirement, the professors claim ‘the Act permits the issuance of speech-suppressing injunctions without any meaningful opportunity for any party to contest the Attorney General’s allegations of unlawful content’ because of inadequate notice provisions and the capacity to enter injunctions ex parte. Requiring the shut down of entire domains rather than blocking specific content is described in the letter as ‘burning down the house to roast the pig.’

More profound however, is the academics’ claim that the bill’s ‘egregious Constitutional infirmities… will not survive judicial scrutiny’ suggesting its significance ‘is entirely symbolic.’ This would be the first time the US would require internet service providers to block speech because of its content. Enjoining ISPs to police users’ activities is an issue of growing judicial significance, not simply in circumstances like the iiNet case in Australia, but also for a range of future measures, including filtering, censorship and levying, that may require ISP cooperation.

Content industries have sought this law for years, and view the new capabilities as a magic bullet for copyright enforcement, with the MPAA and RIAA extensively lobbying for its passage. Lauding the legislation, the bill’s proponents emphasize the derisory economic consequences affected by infringing rogue sites. Previous MPAA interim boss Bob Pisano defended the bill, claiming targeted sites ‘exist for one purpose only – to make a profit using the internet to distribute the stolen and counterfeited goods and ideas of others,’ and that the ‘economic impact of these activities – millions of lost jobs and dollars – is profound.’ Pisano argues the First Amendment was not intended as a shield for those who steal, irrespective of the means. ‘Theft is theft, whether it occurs in a dark alley or in the ether, and to attempt to distinguish the two is to undermine the most basic tenets of our criminal laws.’

Clearly rhetoric laden, such speech reverts back to the questionable conflation of tangible and intellectual goods, and co-opts morality for its justification without acknowledging the concomitant censorship issues. However, other Hollywood groups have claimed that concerns of unlawful censorship are an ‘absurd misrepresentation of civic rights’.

For organisations like MPAA and RIAA who maintain a controversial program of prosecuting online copyright infringement, the new law would amount to another weapon in the arsenal of content protection. But beyond copyright, the bill highlights emerging issues in digital censorship and jurisdiction by entrenching in U.S law filtering of international content that offends local laws – a dangerous precedent that may expand to other types of speech. Passage of this bill would mark a substantial shift in lawmakers’ willingness to regulate cyberspace and a fortiori against the principle of the Single Global Internet.

Jake Goldenfein is a PhD candidate at the Melbourne Law School

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Collective Management of Copyright: Issues Emerging from the Google Books Program

March 4, 2011

By Jake Goldenfein

February 18th 2011 marks one year since the Amended Google Books Settlement (AGBS) fairness hearing, with Judge Denny Chin yet to issue a ruling. Though the Google Book Search program cannot be implemented without Judge Chin’s approval, both academy and industry are prodigiously analysing its potential ramifications. Establishing a collective management organisation (CMO) called the Book Rights Registry is one of the AGBS’s more provocative features. Very simply, the Book Rights Registry would collect and distribute revenues from the Google Books program to the rightsholders of digitised texts. As the specific issues generated by the AGBS fall to redoubled investigation, so do their corollaries for the institution of copyright. Accordingly, on January 28th 2011, the Kernochan Centre at Columbia University Law School in New York held its annual symposium on CMOs and their role in new licensing regimes. By way of introduction, June Besek, Director of the Kernochan Centre, noted the AGBS was one of the two fundamental reasons why CMOs are receiving more attention (the other being that collective management is a lesser institution in the US than the rest of the world), making the symposium extremely timely.

Google’s inclusion of collective management in the AGBS has reinvigorated the analysis of CMOs, as collective management may play a part in the AGBS’ controversial rights clearing process. To briefly summarise – Google began digitising the collections of major US university libraries, making available snippets of text for search engine enquiries. The US Authors Guild and Association of American Publishers brought a class action lawsuit against Google, claiming copyright infringement on behalf of rightsholders of the texts scanned and digitised. Google originally asserted a fair use defence based on the limited quantity of text displayed as search results, however the parties eventually settled, authorising Google to engage in activities more expansive than those inducing the original action. Google would be permitted to make available full, digitised texts on private and institutional bases, with revenues distributed to rightsholders through the Book Rights Registry. Controversially, the settlement used the ‘opt-out’ mechanism of class-action procedure to subvert the traditional requirement of permission from rightsholders. This clever piece of litigation strategy may enable Google to digitise and commercialise (actions within the rights reserved by copyright) the legacy of western publishing without undergoing the otherwise impossible task of clearing rights. Remarkably, this inversion of the default copyright position for a massive canon of information is achieved through private (settlement) action rather than legislative reform.

Many are familiar with the function of CMOs, such as APRIA in Australia, who license music performance rights from its repertory to users of all kinds. For example, if you operate a bar, you pay a fee to APRIA to lawfully play music to the public. The CMO determines the fee, then distributes revenues to rightsholders based on its usage data. While APRIA has its equivalent in the US, CMOs in other categories of rights are far less prolific. Perhaps this paucity is linked to the poisonous connotations of the term ‘collective’ amidst an American environment of strict economic rationality. Indeed the keynote speaker at the conference, Daniel Gervais, argued a purely economic approach to collective rights management makes those agencies’ role less compelling. He argued, in Europe comparatively, collective management is considered a preferred system rather than a necessary evil.

Gervais highlighted some central features of collective management including the lack of excludability. Any user may access any work within the CMO repertoire provided they pay the licensing fee. This reduces transaction costs, and highlights how, while industry actors often have a program of saying ‘no’, CMOs generally say ‘yes’. In this sense, CMOs may facilitate movement away from the permission culture that accentuates the conflicts of copyright in the internet age.

Schott Hemphill, an anti-trust and IP professor at Columbia Law School, discussed the competition issues regarding collective management – generally, and in reference to the AGBS. He highlighted the fundamental concern emanating from the horizontal relationship amongst rightsholders that enables setting higher licensing prices than if rightsholders were acting individually. The original Google Books settlement entitled the CMO to establish a profit maximising price. Of course, this smacks of cartelisation. However, the amended agreement clarified that the pricing algorithm enables individuals to price their works severally. Orphan works issues also emerge in an anti-trust analysis of the AGBS, with the US Justice Department contending that later entrants to the ‘ebook’ market will struggle to replicate access to orphan texts as those rightsholders (by definition) cannot opt-in. Naturally, within the massive envelope of materials digitised by Google, many rightsholders are not identified or located. By requiring absent authors to ‘opt-out’, the settlement grants Google a de facto monopoly over those works. However, Hemphill remarked Google’s substantial risks in commencing digitisation would increase access to orphan works from effectively zero, thereby obviating anti-trust liability because the cost of the product is not increased. Apart from contending the anti-trust complaint is not made out, Hemphill also declared problematic the inclusion of competition issues in Judge Chin’s fairness determination as Chin’s mandate considers legitimacy for settlement class-members only, not the public at large.

As a CMO, the Book Rights Registry utilises extended collective licensing (ECL) machinery. ECL operates by extending the relationship between rightsholders and CMOs, by virtue of law, to all individuals within that class of rightsholder. Consequently, as pointed out by Alain Strowel from the Facultés Universitaires Saint-Louis in Brussels, this model has vast utility in licensing mass digitisation projects (and orphan works). Extended collective licences are already legislatively prescribed in Europe for cable television transmissions and other communications, while Nordic ECL law has omnibus provisions facilitating application to all categories of rights (including those necessary for the Norwegian National Digital Library). Uniquely to the AGBS, the legal extension to ‘outsiders’ is by virtue of private law, not legislation, and the benefits flow to only one user – Google.

Berkeley Law School professor Pamela Samuelson objected to the AGBS for precisely those reasons, stating her preference that other parties also have access to the mass digitisation. She argued for legislation establishing a CMO with extended collective licensing of orphan works and out of print books only (although she cites preference for the limited liability model of the proposed US orphan works legislation). Rather than vesting this resource in a private company like Google, Samuelson endorses creating a national Digital Public Library along the lines of the Europeana project.

Finally, the last speaker at the Symposium, Séverine Dusollier from the University of Namur succinctly highlighted the spectrum of licensing options from individual management of rights to compulsory licensing, and canvassed the various legislative proposals including levies on internet use and devices, and commandeering ISPs as collection agencies, licensors and enforcers.

The collective licensing options discussed at the conference have been subject to varying amounts of analysis and implementation. Clearly, the importance of developing adequate and appropriate licensing regimes is not escaping academics or policy makers, and the quantity and complexity of those options is only expanding. However, convincing established content industries continues to suffer for their preference of Digital Rights Management technologies over licensing innovation. For that reason, many eagerly await Judge Chin’s determination. Those opposed to the AGBS often cite Google’s ‘end-run’ around copyright law and the danger in privatising of such a phenomenal resource. However, considering US Congress’ inability to even pass necessary orphan works legislation, it is questionable whether the US Government has the political, let alone technical means to bring such a valuable public asset into fruition. In addition, recent US copyright reform focuses predominantly on term extension and fiercer enforcement, leading some to prefer Google’s vision of copyright to that of the US Government. No doubt whether or not the AGBS is approved, the concept will remain a substantial influence on the progress of digital licensing in times to come.

Video of the symposium is available on the Kernochan Centre’s website here.

Jake Goldenfein is a PhD candidate in Law at the University of Melbourne

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New York Law School’s Intellectual Property “Un-conference” 2010

November 1, 2010

By Jake Goldenfein

An unconference is not the opposite of a traditional conference, but rather a platform for greater participant contribution within the traditional conference structure. The agenda is established by the attendees as the as the program progresses, enabling a more reflective discussion on the key themes of the event. On the 24th and 25th of September, the New York Law School’s Institute for Information Law and Policy held the world’s first intellectual property unconference – ‘Innovate/Activate’ – on the theme of activism within the IP community. The unconference platform mirrored the growing focus of much IP research, the emergence and re-conceptualisation of participant created content (or user-generated content), by facilitating IP activists to showcase their projects as well as including panel discussions on IP activism within patent, international development, the arts, and digital culture.

The keynote speakers were Amy Kapczynski from UC Berkeley, Lea Shaver from Hofstra Law School, and Niva Elkin-Koren from the University of Haifa. Kapczynski became an AIDS\HIV activist as a law student and campaigned for international IP laws to more equitably reflect the fact that 90% of AIDS sufferers lived in the developing world. In 2001 her campaign resulted in Yale and Bristol-Myers Squibb pledging not to enforce the patent on the HIV drug d4T, substantially lowering the annual cost of AIDS treatment.

Shaver teaches IP and international law, and also worked on ‘access to knowledge’ while a fellow of the Yale Law School Information Society Project. That work intermingled IP, human rights and international development and focused on broadening the concept of innovation ro include information diffusion.

Elkin-Koren‘s research focuses on the growing disconnect between digital culture, digital development and intellectual property regulation, as well as how legal institutions facilitate private and public control over the production and dissemination of information. She writes extensively on the effects of cyberspace on the economic analysis of law, and is increasingly interested in the open content movement.

Speakers discussed IP activism as a combative reaction to the transnational and collaborative nature of incumbent interests that move IP in the ‘wrong’ direction, as well as a response to the transformative nature of information society in terms of economies. When questioned what could be done farther in IP activism the speakers suggested increasing the output of open source technologies to enhance user control, challenging the ideology that markets are the only mechanism to create and distribute information, and developing civil rights frameworks to contemplate access to information.

Apart from the keynotes, various panel Sessions covered a wide range of topics with diverse presentations on issues related to IP activism including reform of IP regulation and strategies, the interaction of innovation systems, and technological progress facilitating access to knowledge. There were some standout speakers. For example, Derek Slater, a senior policy analyst at Google discussed the difficulties, and need to reconceptualise, licensing in the on-line environment. A powerful example was contrasting the ease of obtaining a compulsory licence to create a phonographic recording of a song written by another artist (cover song), against the requirement to obtain a non-compulsory synchronisation licence to upload a video (on YouTube) of somebody performing that song. He also discussed the YouTube ‘content ID’ system which performs rights management for the 24 hours of footage that is uploaded to the website every minute. The system allows content owners to upload their material to a repository which is compared to footage available on the YouTube website. If uploaded content is matched with footage on the content ID database the owners are given the option of removing the content or monetising it through advertising. Content ID is an excellent example of digital content registries preventing infringement while enabling greater distribution and monetisation of material.

Another standout was Laura DeNardis of the Yale Law School Information Society Project who discussed the embedded values and politics of internet ‘protocols’. Her research examines the political infrastructure associated with the fundamental coding and standards setting of the internet. She eloquently explained the influence of commerce and politics intrinsic to the governance of creating the most fundamental elements of cyberspace. She describes how the production of technical architecture remains entrenched in the private realm and argues for increased transparency and democratisation.

Holding an unconference on IP activism reflects the growing participation of the broader IP community in shaping future IP regulation, and hopefully spawns future projects that re-examine the role of intellectual property in innovation and digital culture.

Jake Goldenfein is an LLB graduate from the University of Melbourne Law School.

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The Privacy Imperative in the Information Age: Keating on the media, and the media on Keating.

August 26, 2010

By Jake Goldenfein and Prof. Megan Richardson

On the 4th of August 2010, former Prime Minister Paul Keating delivered a speech titled ‘The Privacy Imperative in the Information Age “Free for All”’. This was hosted by the Centre for Advanced Journalism at the University of Melbourne. Eight days later the media was invited to respond at another Centre for Advanced Journalism public seminar aptly titled ‘Invasion of Privacy – is it ever justified?’. Below is an outline of the Keating lecture and media response, as well as a brief summary of the legal reforms sought by Keating and others.

The Keating Lecture

Keating’s speech opened with a famous 19th century article by Samuel Warren and Louis Brandeis on ‘the right to privacy’ that admonished the indolent and prurient seeking of gossip, and fundamentally blamed the media for shifting public tastes; stating ‘when real personal gossip attains the dignity of print, and crowds the space available for matters of real personal interest to the community, what wonder that the ignorant and thoughtless mistake its relative importance’. (‘The Right to Privacy’  (1890) 4 Harvard Law Review 193)

In quoting this text, Keating was attempting demonstrate the media’s culpability for the normative degradation of privacy in society. He also used the Warren and Brandeis definition of privacy, being ‘to protect those persons with whose affairs the public has no legitimate concern, from being dragged into undesirable and undesired publicity…’ to preface his speech.

Keating’s speech was a disparaging characterisation of the media today, claiming ‘these organisations proclaim the importance of free speech, in the dissemination of news, but clearly are more at home in the entertainment business’. Although he acknowledged ‘the battle that Warren and Brandeis fought against the evils of gossip has been well and truly lost with the passage of time’, Keating noted the issue of privacy is clearly still in issue, ‘particularly where to draw the line between freedom of expression and any remaining right an individual has to have some control over the gathering and publication of information about personal aspects of their life.’

To emphasise that the issue is still very much alive, Keating endorsed the recommendations relevant to the media in the 2008 Australian Law Reform Commission report including:

  • changes to, but continuation of, the largely self-regulatory arrangements that are a condition for the exemption media organisations enjoy from the Privacy Act;
  • introducing a definition of ‘journalism’ in the exemption and altering the definition ‘media organisation’;
  • permitting media organisations to engage in standard setting only when also committed to independent privacy standards developed in conjunction with the Privacy Commission and the Australian Communications and Media Authority; and
  • the establishment of a general statutory cause of action for breach of privacy.

Why we Need Privacy Protection

Keating attacked the media’s response to a proposed statutory privacy action, particularly the parroted defence of ‘the public’s right to know’.

The exegesis of celebrity media’s position came from the Deputy Editor of Sydney’s Daily Telegraph when questioned over the ‘public interest’ in the publication of supposed nude pictures of Pauline Hanson. Her response was ‘that is for our readers to tell. That will be determined by the number of people that buy the paper’.

Other examples of invasion of privacy provided were the publication of photos of Lara Bingle in the shower, and reporting of then NSW Transport Minister David Campbell leaving gay haunt Ken’s of Kensington.

Statutory Cause of Action

With respect to a statutory cause of action, Keating claimed the common law provides too piecemeal and fragmented an approach for what should be a unified action. He suggests a legislative solution would remove uncertainty, give effect to Australia’s obligations under article 17 of the International Covenant on Civil and Political Rights and bring us in-step with peer jurisdictions such as the UK, New Zealand and Canada.

Media Self-regulation

Keating attacked the broadcast and print media’s self-regulation, especially in light of codes of practice that define and reprove breaches of privacy. He pointed to gaps in the transparency and independence in the investigation of complaints as well as weak enforcement mechanisms, citing that nobody has ever been expelled from the Media Entertainment and Arts Alliance for a breach of standards.

The ‘Right to Know’ coalition’s defence of self-regulation speciously claims that the media regulation framework is effective and working well as evidenced by the low number of complaints, investigations and breach findings. However, Keating opined the self-regulation is ‘more or less a set of home town arrangements for the media companies’ with dodgy funding based on circulation, meaning News Ltd is the major contributor.

Finally, Keating suggested industry leaders and profession should acknowledge that improvements are needed rather than aggressively standing behind the status quo, as well as provide guidance, education and training in defining ‘the public interest’.

For those wanting to read more of Keating a transcript of the lecture can be found on the Centre for Advanced Journalism webpage. A recording of the Keating lecture can be found here.

The Media Response

A week after Keating delivered his speech, the Centre for Advanced Journalism hosted a panel of media representatives to respond, moderated by Michael Gawenda. Invited to talk were: ABC Radio’s Virginia Trioli; Text Media Group founder and CEO Eric Beecher; and the Herald Weekly Times editor-in-chief Phil Gardner.

Virginia Trioli

Trioli spoke first, focusing her submission on explaining the conflict journalists face in relation to ‘the right to know’. She announced her support for Keating’s arguments, citing the nude Pauline Hanson photos as evidence that some publications had lost touch with what activates the public’s right to know. Trioli stated certain media outlets unfortunately struggle to comprehend the distinction between ‘the public interest’ and ‘of interest to the public’.

Trioli argued that personages submitting themselves to the media, such as Julia Gillard appearing in Women’s Weekly, should not open them up to inappropriate personal questions because the media hounds them ex ante into those compromised positions. She claimed this confusion is a ‘bind’ for the media because of its infantile prurience in establishing the distinction between the fascinating and the inappropriate.

For those reasons, Trioli supported Keating’s position on introducing a privacy cause of action. She questioned the accountability of the legal system and the amount of clarity in judicial adjudication of media action, but considered those arguments overborne by the corrosive damage invasion of privacy can inflict on the institution of journalism.

Phil Gardner

Phil Gardner followed, and unsurprisingly responded directly to Keating’s targeting of News Ltd. Gardner prefaced his defence with the fact that Herald Weekly Times produced 1000 news pages and hefty amounts of on-line content weekly, and sometimes mistakes were made. He claimed occasionally standards and ethics lapse when producing so much content, but it is neither deliberate nor related to increasing revenue.

Gardner argued that Keating approached the entire issue with ‘hypocrisy’, claiming if he still wanted to be a public figure he is not entitled to demand the media not interfere with his family. These comments referred to Keating’s privacy tirade in November 2009 when an article in the Sunday Telegraph alleged Keating’s daughter Katherine kicked one of its photographers at a social event, screaming ‘do you want me to throw you down the stairs and kill you?’

Gardner’s comments echoed then News Ltd chairman John Hartigan who stated ‘it is difficult to stomach the hypocrisy of Paul Keating… What we have now is a man calling for a new law so that people like him can use their wealth, power and privileged positions to avoid scrutiny when it suits them, while remaining happy to exploit the media for their own gain at other times’.

In response to Keating’s direct attack on News Ltd, Gardner outlined systems in place at HWT to demonstrate its awareness of the sensitivities of newsgathering. These included: a code of conduct; training for young journalists; and the upcoming appointment of an HWT readers’ ombudsman.

However, Gardner maintained that much of the privacy debate was archaic, as things had changed since the 70s, 80s and 90s. For example, he claimed voters no longer vote exclusively on policy, rather family and image are sufficiently important to allow the media to investigate those aspects of politician’s lives.

Gardner said ‘bollocks’ to Keating’s critique of self-regulation and the insinuation that the media is focused on circumventing effective governance. He claimed the attack on the funding arrangements of the press council were unfounded as industry funding is an acceptable world wide model.

On the proposed cause of action for breach of privacy, Gardner argued there are already numerous (and sufficient) legal privacy protections such as the Surveillance Devices Act, trespass laws, defamation, and breach of confidence. Further, he argued that codified privacy laws such as in the UK only protect the rich and famous. Finally, he argued ‘those who shout the most about privacy are working hardest to be in the media’.

Eric Beecher

Eric Beecher tackled Phil Gardner’s submission directly, stating that if News Ltd was truly about to engage in a brave new ethical world, ‘we can all go home’. On the chance that the situation doesn’t change, he added, he wanted to make a few points.

Beecher criticised the recurring ‘right to know’ trope as a veil on the true motivations of career advancement, profit, and circulation – all of which emanate from the endemic ‘wink and nod’ culture of large media offices. He claimed journalists and editors would not admit it in public or private because they know it’s immoral. As such, when Keating delivers a sound argument in favour of creating a breach of privacy action, the organisations engaging in such breaches defend themselves with political clout to prevent new privacy laws emerging.

While Beecher acknowledged there is an intrinsic challenge for privacy laws to curb sensational abuse while protecting the legitimate investigative role of the media, he believes eventually political frustration and public dismay about media will force governments to legislate.

Finally, Beecher argued against media self-regulation. He claimed because many large media organisations fail to operate within an ethical culture, he lacked confidence they would act in the public interest when performing regulatory functions.

Question Time

Michael Gawenda prologued the debate by noting that while Phil Gardner apparently welcomed privacy debate, unlike Fairfax, not a single News Ltd publication reported Keating’s initial lecture.

There were several interesting audience questions, with one audience member asking what protection a statutory cause of action for breach of privacy could offer beyond the existing privacy protection in other laws. The response from the panel was ‘effectively everything on Today Tonight’, however the issue warrants further explication.

The Centre for Media and Communications Law has offered a number of public seminars on the existing legal position as well as the various proposals for law reform offered by the Australian Law Reform Commission and New South Wales Law Reform Commission. (Details of the seminars can be found on the CMCL website and the latest seminar is written up in the (2010) 15 Media & Arts Law Review 264.) Recently, the Victorian Law Reform Commission joined these efforts with its own proposals for two new statutory causes of action for serious invasions of privacy (among other things): see the Commission’s Report on Surveillance in Public Places on the Victorian Law Reform Commission webpage.

It will be interesting to see what comes of the proposals but there does seem to be a heightened privacy-consciousness these days, especially vis-à-vis actions of the media. Personal experiences can make a difference here. If Keating’s polemic on privacy was possibly triggered (at least in part) by his daughter’s experience with the media at a social event, we note that Warren and Brandeis’ article on ‘the right to privacy’ is said to have been prompted by the disruption of Warren’s daughter’s wedding by the ‘yellow press’. The article has turned out to be one of the most influential pieces of legal writing on the right to privacy to date.

Jake Goldenfein is an LLB graduate and researcher at the CMCL and IPRIA’ at The University of Melbourne

Megan Richardson is a Professor of Law at The University of Melbourne.

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Who Owns the News?

August 12, 2010

By Rebecca Mouy and Jake Goldenfein

News Corporation recently announced that it was about to start charging for online access to its news. It says the future of old media in the digital age is that consumers will pay for online news content in a similar way as for hard copy ‘newspapers’ – and it seems to be far from alone in its plans. But is this a sound approach in legal and business terms?

On 8 July, IPRIA in association with the CMCL and Melbourne Business School (MBS) presented a seminar entitled ‘Who Owns the News’ chaired by Sam Ricketson. Mark Davison and Stephen King (respectively of the Monash Law Faculty and Faculty of Business and Economics) presented on legal and economic perspectives of the future of ‘the news’, and discussant Kwanghui Lim (from the MBS) offered a brief recap of each of the presentations along with some suggested business solutions available to news publishers. Speakers’ slides as well as the podcast for the seminar is now available here so the details will not be canvassed in depth here.

Ownership rights over news

Mark Davison outlined the legal framework for news ‘ownership’ in Australia, concluding there is little copyright protection available for news, especially in the wake of the High Court decision in IceTV Pty Limited v Nine Network Australia Pty Limited [2009] HCA 14 and its application of the Federal Court’s decision in Telstra Corporation Limited v Phone Directories Company Pty Ltd [2010] FCA 44 (see Michael Crawford’s article in an earlier edition of Fortnightly Review for analysis of this case). However, he argued that in the current climate Australia should not follow the US approach of ‘hot-news’ laws or the European database protection in an effort to protect ‘news’.

The ‘hot-news’ doctrine in the US provides a quasi property right in “breaking news” and posits that such news can be misappropriated, eg by other news services. Davison argued that the hot news tort followed in various US States (including New York) relies on vague criteria leading to substantial uncertainty. The European Union database protection laws, on the other hand, have provoked a great deal of discussion on the distinction between ‘collecting’ and ‘creating’ a database. After grappling with this issue for sometime, in 2005 an EC Commission report on database protection stated the net benefit of the law was unproven.

Given the unsuccessful legislative attempts to protect news abroad and the current state of flux in Australia, Davison suggests that the best course of action is not to rush hastily into legislative reform and in the meantime consider whether exclusive rights over information are desirable.

Can the iPad do for news what the iPod did for music?

A vital question facing current news services is how to survive in the age of digital publication and distribution. Economist Stephen King examined the drastic changes the Internet has effected upon the business model for news media organisations.

King discussed the changes digital distribution has brought to news production, mostly in relation to ‘convergence’. He raised the topic of news aggregators such as Google News, which allow users to search by topic and access articles from multiple sources. This gives users an effective tool for sidestepping on-line news providers who limit access to subscribers, and raised the ire of incumbent media outlets such as News Corporation. These aggregators demonstrate the quantity of professional and amateur content produced on-line, and liberate users from relying on established sources of information.

The potential pitfalls of such services are that consumers become more capable of choosing the news sources that support or reinforce individual prejudices. However, once the pretence that official news services provide more ‘objective’ information is jettisoned, it is difficult to maintain that access to more information is not beneficial to consumers. The more raw the source, arguably the less adulterated the information. Personal biases may be more prevalent, but articles can eschew the political or editorial line of an established media outlet. Arguably, numerous amateur sources provide a clearer picture than a single incumbent news service.

The net effect of the Internet upon news production, in King’s view, is thus a benefit to the consumer through increased access. Competition ultimately drives the cost consumers pay for news to nothing. King proposed that in future, consumers might only pay for ancillary services or specialist commentary (perhaps something along the lines of The Economist) rather than factual news.

In this context, he referenced the position of Rupert Murdoch that the ipad will save the newspaper. However he pointed out that this raises the question of whether a specific interaction between a device and content can provide an experience a user is willing to pay for. Arguably, the comparison between the ipad and news with the ipod and music is flawed.

Prior to the ipod and itunes, obtaining music digitally was predominantly illegal, and users knew it. Itunes subsequently provided a service that adequately competed with piracy so that the financial detriment of sating one’s conscience was in-step with user expectations. While the ipad will offer attractive paid news services through specific subscription ‘apps’, there is no moral problem in obtaining free news from other services (also accessible form the ipad). Further, findings demonstrate that paid subscriptions or walls on online news are generally unsuccessful in raising revenue unless very niche. This leaves the difficult conundrum of what kind of business model may succeed for news publishers, and a discussion of the role of public broadcasters.

In discussion, it was suggested that public broadcasters (such as the BBC and ABC) are capable of providing quality journalism with the advantage of government endowment rather than relying on traditional revenue streams such as advertising. However, in response King argued there is little justification for investing taxpayer dollars in a service that is essentially equivalent to services provided by commercial broadcasters. He suggested it also raises questions of editorial independence, especially in reference to investigative journalism. However it was noted the independence of certain commercial publishers is equally questionable, and government endowments continue to produce quality investigative journalism.

Where to from here?

Kwanghui Lim suggested the following business options for news producers.

Close down: Lim suggested that the market is saturated and the only way forward for some newspapers will be to close down. He cited statistics from the Unites States that 42% of people say that they would not miss their newspaper much, and would find it easy to access their news in other ways.

Build complimentary services: This approach requires news producers to further develop current sources of revenue, namely advertising. Lim emphasised that in the current atmosphere, the majority of revenue is made through advertising and not subscriptions.

Fight back: Here news producers would fight against the challenge of the Internet by erecting pay walls or calling for subscriptions. Only a small number of publications have managed to do this successfully, including The Wall Street Journal, The Financial Times and The Economist.

Diversify: News producers could expand to become ‘media supergiants’ following the example of News Corporation. This would allow the substantial benefit of cross-marketing.

Reconfigure: follow example of the radio to create a new market for itself, for example recasting as a local newspaper.

For more from Kwang have a look at his post on the Core Economics website. There is also a good discussion of the issues on ipwars.com.

Concluding thoughts

The seminar provided excellent food for thought. As shifts occur in the market for news production, there is no doubt that legal and economic questions will be raised. What the seminar did not provide is answers – for the simple reason that there are no clear answers yet. Nobody knows which business model might be the most successful or which new technologies will shape the changes to come. If no business model emerges as the prominent or successful way to provide news online we will eventually face the question of whether copyright law is flexible enough to deal with the continuously changing conditions of online media.

Historically the price of news has always shaped the tone of content. When the first cheap newspapers emerged in the early 19th century, the consumer’s predisposition for ideological discussions, commentary on principles, and articles with political flavour were replaced by a developing interest in information and current events. With competition driving the cost to zero, this may equally drive professionally produced content away from in-depth investigation and commentary. As such, business models have been postulated where current events and information are free services, while niche commentary attracts subscription fees. However it is difficult to avoid the trend of competition pushing prices to nil.

Several audience members referenced the maxim that ‘good journalism has to be paid for’. While clearly there is a case for professional journalism, arguably the Internet has also provided a habitat for digital communities dedicated to exposing truths and bringing incumbent powers to account. While the form of content may be changing and the influence of established media dwindling, writers will always write and the modern obsession with sharing information will only grow.

Rebecca Mouy is an LLB candidate at the University of Melbourne.

Jake Goldenfein is an LLB graduate from the University of Melbourne.

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The Digital Economy Act 2010 (UK) and Orphan Works

May 20, 2010

By Jake Goldenfein

Two days after the UK general election was called in April this year, the UK Digital Economy Act 2010 (DEA) became law.  Click here for our earlier review.  As parliament was to dissolve within a week, the DEA, passed in a process called ‘wash-up’ whereby parliamentary scrutiny is truncated for the purpose of pushing bills into assent before dissolution. The result was an extraordinarily far-reaching and controversial Bill being passed less than two months after its first reading speech. One victim of the abbreviated legislative process was Clause 43, whose provisions aimed at establishing an ‘orphan works’ scheme in the UK.

The definition of an ‘orphan work’ is in itself controversial, however it generally signifies an in-copyright work whose copyright owner cannot be located. These orphans are problematic as only copyright holders can authorise activities such as reproduction and communication to the public.

A work’s orphanhood prevents a range of activities, including digitisation for many cultural projects or even preservation. Copyright legislation has thus led to a ‘black-hole’ of cultural content in which it is estimated up to 40% of all cultural products exist.

Institutions wishing to utilise works with unknown copyright holders must engage in an often prohibitively expensive search for that rights holder to seek a license. The UK orphan works legislation would have introduced a compulsory statutory licensing regime, allowing a user to obtain a license for an orphan work after demonstrating a ‘reasonable search’ for the copyright holder, and paying an appropriate fee in escrow in case the rights holder later emerged.

There is quite a strong consensus and economic argument in favour of permitting orphan works to be collectively licensed. Such a scheme would assuage the growing and undesirable consequence of copyright law locking-up content whose entry into the public domain would have substantial public benefit. So why did this legislative attempt, as well as previous attempts in other jurisdictions, fail?

Make your legislative intentions clear

In his 2006 article, commentator Ian McDonald discussed the principles that should guide a legislative solution to the orphan works problem. He stated: ‘One touchstone is to clearly define the purpose for which any solution is devised.’ That criterion was insidiously absent from the UK legislative process. This is because orphan works schemes have applications beyond cultural products. There are innumerous contemporary works, orphaned due to digital distribution and copying on the Internet. Any digital text or image without patronage data or attribution is potentially orphaned (depending on the required rigour of the search for the rights holder). This creates problems for professional creatives (especially photographers) whose works are routinely reproduced without attribution or metadata identifying the copyright holder. These groups are legitimately concerned that an orphan works regime creates a mechanism for ‘big publishing’ to utilise compulsory licences for access to cheap images with the effects of reducing the market for new images, and eroding traditional rights to control many uses of copyrighted works.

Recent UK government reports (The Gowers Review of Intellectual Property 2006, Taking Gowers Forward 2007) recognised the problem of orphan works both culturally and commercially and suggested different regimes for dealing with the different uses. However, the proposed DEA provisions did not differentiate between commercial and non-commercial exploitation and the majority of government spin only focused on the liberation of cultural material. The British Library and BBC’s capacious archives were touted as the reason for implementing the scheme. Given the opposition to previous commercial schemes sought in the US, it appeared the UK was successfully garnering support for its scheme by pushing the ‘big culture’ line while quietly including the commercial applications in the same package.

This technique did not get by the UK lawmakers. Lord Howarth of Newport stated in the House of Lords Debate: ‘I am frankly puzzled as to why the Bill was not constructed and designed to show a clear distinction between the treatments of orphan works with little or no commercial value but important scholarly, educational or cultural value, and commercially produced material that is in copyright. It would have facilitated our analysis of it and made it far easier for us to give fair wind to the part that everybody in practice has agreed should be supported. But the two elements of the Bill have been so inextricably tangled up with each other that we have found ourselves in considerable difficulty.’

In reply, Lord Young of Norwood Green (attempting to pass the clause) stated: ‘On the point made by my noble friend about commercial versus non-commercial, the key point is to ensure fairness to rights holders. It is not an arbitrary distinction between commercial and non-commercial use; it is about ensuring that there is an adequate regulation of organisations running orphan works or extended licensing schemes.’

Of course the distinction between commercial and non-commercial is not abundantly clear, but the political spin employed by the government’s response emphasises the quantity of debate and refinement necessary for any orphan works regime to be considered acceptable to a majority

Leaving things to regulations

Another substantial contribution to Clause 43’s failure was its reliance on regulation. Virtually all substantive aspects of the regime would be left to the Secretary of State to implement through regulation. This included: the definition of orphan works, who could operate the licensing schemes, and how they would operate.

While all crucial elements, the lack of a real definition of orphan works in the primary legislation was especially troubling. Because a work is deemed orphan by the legislation, the rigour of the search required to identify the copyright holder is a critical indicator of where the equilibrium between users and rights holders lies. Leaving this to regulation sat uncomfortably with much of parliament, especially in light of the government’s push for flexibility

Orphans still out in the cold

The speed of the DEA’s legislative passage created a quagmire for Clause 43 that could not be overcome. The opponents of the clause argued that too many categories of orphan works were being dealt with indiscriminately. They sought clarification of how the legislative instrument would deal with different industries and different uses of orphan works. On the other hand, supporters of the clause argued that the number of different industries and uses for orphan works required the primary legislation to be vague, such that there would be sufficient flexibility in the regulations.

This was an impasse that the UK House of Commons could not surmount before the election and there was a general consensus that the DEA was an opportunity wasted. However, the Conservatives repeatedly indicated in the debates that this issue would remain high on their legislative agenda, suggesting it won’t be long before another proposed scheme emerges. Perhaps the failure of Clause 43 will compel the Australian Government to be direct, clear and comprehensive with any similar regime it considers in the future.

Jake Goldenfein (LLB(Hons)) is a graduate of the Melbourne Law School

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