fair use: incentives, innovation, users

This page is under development. Earlier pages highlighted the innate tension in intellectual property between the rights of users and the rights of IP owners. The web - and more broadly digital technologies - have fired up debate about the shape of those rights and their rationale.

     innovation and incentives

At the end of September the Canadian Competition Bureau released guidelines on how the bureau will deal with competition issues involving intellectual property. Canadian Intellectual Property: The Politics of Innovating Institutions & Interests (Toronto, Uni of Toronto Press 00) is an incisive study by Bruce Doern & Markus Sharaput, of particular value in considering principles and practice in Australia and overseas.

In December 2000 Australia's Intellectual Property & Competition Review Committee released its final report, endorses Australia's intellectual property regime, in particular copyright law. 

In contrast to past criticisms it argues that IP is not innately anti-competitive or automatically gives owners market power, with competition watchdog Alan Fels commenting that 

it is now accepted that intellectual property laws do not clash with competition laws because they do not create legal or economic monopolies. Intellectual property laws create property rights and the goods and services produced using intellectual property compete in the marketplace with other goods and services. Only in particular cases will intellectual property owners be in a position to exert substantial market power or engage in anti-competitive conduct.

Gordon Gow's 1995 paper on Copyright Reform in Canada: Domestic Cultural Policy Objectives & the Challenge of Technological Convergence remains a model for thinking about national impacts.

David Johnson's paper Rewarding Authorship in Cyberspace: Is Intellectual Property the Answer or the Problem? offers another perspective. 

We noted James Boyle's outstanding Shamans, Software & Spleen earlier in this guide. His 1997 paper A Politics of Intellectual Property: Environmentalism for the Net is characteristically thoughtful. Eric Schlachter countered with a paper on The Intellectual Property Renaissance in Cyberspace: Why Copyright Law Could Be Unimportant on the Internet.

Anne Fujita's 1996 paper The Great Internet Panic: How Digitization is Deforming Copyright Law is overstated but may encourage thought. More cogently, Jessica Litman's 1994 paper The Exclusive Right To Read was an impassioned plea during the lead-up to the US Digital Millennium Act. Her 1996 paper on Innovation and the Information Environment: Revising Copyright Law for the Information Age also explores conceptual challenges, as does the 1997 paper on Copyright Noncompliance (or why we can't "just say yes" to licensing).

For other perspectives on US developments we recommend Leon Seltzer's Exemptions & Fair Use in Copyright: The Exclusive Rights Tensions in the 1976 Copyright Act (Cambridge, Harvard Uni Press 78), Growing Pains: Adapting Copyright for Libraries, Education & Society (New York, Rothman 97) edited by Laura Gasaway and Kenneth Crews' Copyright, Fair Use & the Challenge for Universities (Chicago, Uni of Chicago Press 93). William Patry's The Fair Use Privilege in Copyright Laws (Toronto, BNA 95) compares US thinking with practice and statutes in other jurisdictions. 

     registration and accessibility 

Copyright protection in Australia for print and electronic publications does not involve registration with IP Australia (in contrast to patents, trademarks and designs) or a copyright office. 

The Copyright Act (and some state legislation) requires publishers to deposit copies of print material in specified libraries; the National Library has a useful guide to those requirements. The NLA is exploring long term access to websites through its PANDORA harvesting and storage initiative, which aims to enable use many years hence of such essential publications as Grilled Pterodactyl ezine.

     IP and the dot edu

On the academic front the major news is the release in December 1999 by the US National Academies of a 340 page report on The Digital Dilemma: Intellectual Property in the Information Age. A print version is now available (Washington, National Academies Press 00). It's a considered and well-informed document. 

Another perspective is provided by UK guru Charles Oppenheim in his paper on how universities should seize the day: if you can't beat them, it seems, you should join them. Intellectual Property In The Age of Universal Access (99) is a delicious collection of papers - featuring Samuelson, Schneier, Neumann and others - from the Association for Computing Machinery (ACM).

Last year the Australian National Academies Forum (NAF) held a two-day symposium on Scholarship, Intellectual Ownership & The Law In The Digital Environment. The event was marked by divergent opinions, ranging from laments for the decline of patronage and the rise of digital bugaboos through to hardheaded advice about self-help in the humanities and commercialisation of scientific discoveries.

The Performing Arts Multimedia Library (PAML) was a Commonwealth-State project that explored legal and production aspects of copyright in online performing arts.  A Five Step Guide to Contracting and Copyright Management of Digital Recordings for the Live Performing Arts is now available on the PAML website.


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