Information wars

Dr. Terry Cutler

Originally published: Business Review WeeklyJune 2002

Recently I was asked to address the biennial conference of the Australian Libraries and Information Association - a gathering of key knowledge brokers in the Information Economy. Musing about the impacts of the digital revolution on the role of libraries quickly led me into the middle of the wars raging over intellectual property protection under its various guises of copyright, patents, trade secrets, and anti-piracy laws.

Interestingly, the term "Intellectual Property" - or IP for short - is quite a recent invention. This new focus on building fences around ideas and knowledge is not surprising as we move into an Information Economy. Intellectual property law is to our 21st century economy what mining rights and Torrens Title were to a past resource-based Industrial Economy. Copyright-based industries are now big business. Indeed, they represent the United States' biggest single category of exports. (Australia is a net importer).

We currently find ourselves in the middle of a really odd debate. One group (publishers, media proprietors, and software developers) say stronger IP protection (more of it and for longer) is essential to promote and reward innovation.

Another group (comprising some content creators, and users) argue for less protection in the interests of innovation, creativity and a free trade in ideas - an "information commons" as a public good.

Surely both sides can't be right. Both sides hold a gun to the head of innovation.

To add to the confusion, the protagonists on this battlefield have broken off into separate skirmishes. In one corner Goliath Microsoft is teasing the Davids of Linux - the feisty contingent from the open source software movement. A current cause celebre in this particular skirmish is the jousting between Microsoft and the sovereign state of Peru over the rival merits of open source versus proprietary software. Congressman Dr Edgar Villaneuva's Open Letter of April 2002 has rendered Peru a virtual destination of choice for nerds.

Elsewhere there is a noisy skirmish between media magnates and upstarts like Napster over the perceived information anarchy of the Internet. Content owners (usually not the original creators) are demanding not only greater cyberspace protection of their digital property - tunes, verse, writings, pictures and software code - but also now call for additional safeguards by means of enforceable technology locks on digital devices such as DVDs.

Other groups fight over the rights and wrongs of intellectual property rights over DNA discoveries, food technology, and medicines

All these skirmishes are basically part of the same battle. At issue is who owns - and therefore controls - ideas, artistic and creative product, and inventions? What is the balance between public rights and private interests? Who benefits from the creative act: the creator, the middleman, or the user? Who decides how the balance should be struck? These are tough questions, but ones that we cannot ignore because they are the matter of current debates about parallel importation of software and books, droit de suite, moral rights, and the copyright management of digital materials. The stakes here are high, as the economic importance of the trade in ideas and content grows.

Let's put this issue into some historical perspective. Copyright has come a long way from its origins - and its original premise of a "public domain" of information. The US Constitution broke new ground by enshrining exclusive rights "for a limited time" in order to "promote progress". Their first copyright law protected authors for a term of 14 years. Initially copyright was not automatic but required registration or opting into the system, as patent law still does. Lawrence Lessig, a Harvard law professor specialising in this area, recounts how, in the first decade of US copyright law from 1790 to 1799, only 5% of published works were registered for copyright. In other words, 95% of this creative work was immediately in the public domain. Today, owners of works have automatic protection, which extends for the life of the author plus 70 years. (Some industry insiders joke that the US Congress will keep extending the term of copyright for as long as it takes to keep Mickey Mouse under Disney's legal custody).

There is no black and white solution to the battle of competing interests over intellectual property. Until recently the owners of ideas seemed to be winning. Two recent developments in the United States could change the terms of this debate.

Last month seventeen eminent economists, including no fewer than five Nobel Prize winners, submitted a seminal economic critique of the US Copyright Term Extension Act of 1988 to an Appeals Court. In their statement these economists argue compellingly that the continuing expansion of copyright protection:

(The full statement is available from the website of the Brookings Institution. It is a "must read" for anyone who is in the business of ideas and innovation).

The second important development has been the emergence of new public interest and advocacy groups. The most innovative of these is a not-for-profit venture, Creative Commons, chaired by Lawrence Lessig (who spoke at the World IT Congress in Adelaide earlier this year). The business of Creative Commons is to develop legal frameworks for people to transfer copyright work into the public domain. This is an innovative extension of the open software model of a General Public Licence.

Any volunteers for setting up an Australian arm of Creative Commons?