Last Rights?

John Potts speaks with Ian Collie, Director of the Arts Law Centre of Australia, about rights in the digital age

JP What have you found to be the most pressing legal ramifications of the new media technologies?

IC With multimedia, the most obvious issue concerns the way art forms can be transposed from a hard copy to a digital format. Whether that’s a CD-ROM or an on-line system, it provides an easier format from which to access, to manipulate and download. The difficulty is in monitoring that situation so that the copyright owner, the creator, is fairly remunerated for the use of that work. I think it’s the monitoring which is the real challenge at the moment.

JP It’s often said that the law covering intellectual property is a cumbersome beast lagging behind technology. Unless the law is amended, technological change makes it obsolete. Has that been your experience?

IC There’s no doubt about that. The Copyright Act, dating to 1968 with amendments in 1989, is basically looking a bit tired. The federal government is now in the process of producing a totally revised copyright. They want to simplify it and bring it up to speed with the age of convergence. The inadequacy of the Act at the moment concerns the transmission right, which in essence is like a cable right. It’s very limited in scope and really not sufficient to ensure copyright owners have some control over transmission of material down the line.

At the recent contemporary music summit in Canberra there was a demonstration where musicians put their work on the Internet. They were saying that people could access it without restriction. In theory they could, because the transmission right as it’s presently defined is so limited as to make it difficult to prevent people downloading music files onto their computers. The government has, through the Copyright Convergence Group, recommended a broad communications right which would be sufficient to restrict the free market downloading of this information. That would be OK in theory, but then how do you monitor people doing this, how do you police it?

The whole copyright Act is based on discrete activities, which are now overlapping so much that it’s very difficult. It was initially the right to copy, where the reproduction right has been the key right, to stop making duplicates, pirating. But in the convergence age, we don’t need to make a hard copy anymore, we can access it through a terminal , and get the same information. Likewise soon we’ll have cable music, CDs transmitted down the line for listening. The tangible items that we’re used to will still be there, but perhaps they’ll be more peripheral. Therefore the communications right, this transmission right, will be the all-important right, more so than the reproductive right.

JP Is that because the nature of information is immaterial? Information is malleable, and can take different forms depending on the information carrier.

IC Yes, because basically you’ll have things whizzing through the ether, from one databank source to your home PC. The main issue will be properly controlling that dissemination and making sure that when you use that information, the copyright owner is properly recompensed for it. It’s not so much the laws that are at fault, as we can amend the laws to fit the new environment, but there’s a technological solution – encryption schemes – by which people can’t download the material until they’ve paid the gatekeeper a certain fee. It may be that you can browse an abstract, for example, for free, but any accessing of information would incur a fee.

The other key issue in the digital age is moral rights. At the moment there is no moral right protection in Australia, although the government has confirmed its intention to introduce moral rights legislation. When artistic material is more readily available in digital format, it can be easily sampled and so on. Moral rights are the rights of owners to protect the integrity of their work.

It’s a difficult issue, because we still want that freedom to create new work based on existing work, and you don’t want moral rights or copyright to be a fetter on artistic freedom of expression. But you want to protect the integrity of the work from perhaps the more insidious commercialisation of it, where it gets re-hashed, as in an old Gaugin being used to sell pizzas. But there are two arguments here, and you have to try for a fine balance.

JP Here perhaps we have an aesthetic approach clashing with the law of copyright. There are many artists working with samplers and scanners who have a post-modern aesthetic of appropriation. There are theorists like John Perry Barlow who wrote in Wired that “everything you know about intellectual property is wrong”, in the information age. One argument is that there should be a greater public domain to allow artists freer access to images and sounds. Are such arguments doomed to founder on the rock of copyright law, or is there some scope for a compromise, in which the law can be relaxed?

IC A lot of people are sympathetic to these postmodern arguments – but then you get it from the other side. Take the example of multimedia. It’s like a hybrid, taking bits and pieces from different art forms. Some say that a multimedia producer could take a piece of a visual artist’s work, a piece of music, and put it altogether, and not have to pay those artists. But then from those artists’ point of view, if that multimedia work makes a lot of money, surely they should get some slice of the pie.
I think there’ll be a move towards collecting societies which allow you to use the work without being restricted as long as you pay fair remuneration. I think that’s probably the way it will go, and perhaps the only way. It provides access to the material, but ensures that the original artist gets a fair remuneration.

JP Is that the most workable compromise?

IC I think so, because it is fair that if you’re an artist by profession, you should be compensated if your work is sampled or scanned. But then I think in the past the pendulum has swung too much towards the owners of copyright and not enough towards allowing access to material.

The Arts Law Centre of Australia gives legal and accounting advice to artists in all art forms. Services include free preliminary phone advice, referral to solicitors or dispute mediators, legal advice nights, publication sheets and seminars.

The next seminar, Tales From The Infobahn, discusses developments in electronic publishing and the challenge presented to the traditional publishing paradigm. Speakers are Oliver Freeman, from Publish Australia, Lynne Spender of the Australian Society of Authors, and Colin Galvin, barrister and lawyer.

The seminar is held on June 14, 6-8 pm, at the Gunnery, Woolloomooloo, Sydney.

RealTime issue #7 June-July 1995 pg. 8

© John Potts; for permission to reproduce apply to

1 June 1995