Bowrey, Kathy --- "Copyright law reform" [1996] ALRCRefJl 1; (1996) 69 Australian Law Reform Commission Reform Journal 6

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ALRC Reform 69

COPYRIGHT LAW REFORM
dealing with the unfamiliar

The familiar - is new really new?

Photography and copyright

Audio CD, digital audio and copyright

Computer works and copyright

Anticipating change

Copyright law has come a long way since it was devised to regulate the printed word. To date, it has accommodated other forms of cultural production by explaining them in terms of the literary model. In this article Kathy Bowrey examines the efforts of copyright law to cope with new technologies. She compares the earlier difficulties with photography and more recent difficulties with computer works, and argues that, technology is now requiring an examination of fundamental principles.

Kathy Bowrey is a Lecturer in Law at Macquarie University.

The familiar - is new really new?

How many people have

• seen a photograph?
• taken a photograph?
• developed a negative?
• printed a photograph from a negative?

Even without the benefit of direct experience, most of us have some practical understanding of these things. What about the working of word processing software? 2D & 3D Modelling packages? CD Rom? Multimedia? World Wide Web? Netscape Navigator?

Much of the difficulty in dealing with new technologies stems from the lack of a common frame of reference for understanding the technology. Technology can change our whole experience of information: the content; the technological knowledge required to access information; the types of environment in which we use the technology; the way products are costed and how we pay for things; the additional equipment required to access, store and use information.

Some new technology, such as the Audio CD, changes the delivery mechanism for a familiar kind of product. However computer technology changes more than this - it changes what it is that you can deliver.

When this happens, law reform involves much more than simply adapting existing law to new technology. Law reform is involved in building a social context for the technology at a time when there is no consensus about what this context involves.

This problem is quite apparent to those trying to come to terms with the current pace of technological change and the confusing opinions about the significance of new technologies. However an exploration of the way copyright law has dealt with earlier technologies, in this case photography, serves to remind us that the problem is not entirely new.

Photography and copyright

Copyright owes its heritage to the world of literature. Whilst its domain was expanded to accommodate other forms of cultural production and mass reproduction - eg engravings, textile designs, artistic works, maps - throughout the nineteenth century these 'new works' had to be explained in terms of the literary model.

The basic requirement was an original expression fixed in material form from which the reproductive right ensued. In order to award protection, copyright selects an actor and privileges his or her contribution to the creation of an original work above that of other actors. The reproductive technique had to be explained using a distinction between an 'original work' and 'copies'.

With photography divisions of labour undermine the identification of the work's originator. The material forms of the 'original' - the negative and prints - only come into existence after processes separate to the taking of the shot. The actual technology, chemical and mechanical processes become as central to production as the photographer's effort.

This gives rise to some significant problems: At what point does copyright arise? Is it at the taking of the shot, at the production of the negative, or at the making of the prints?

Who owns copyright when the process of generating an 'original work' involves numerous, differently skilled efforts? Can one effort be deemed as primarily creative and other contributions be rendered merely technical? If so, what is the creative quality that copyright recognises and protects?

At first the photographer was seen as a mere technician with no special claim to a copyright. In an English judgment in 1883 it was argued that the picture was really made by the sun rather than the 'author', and that photography was so mechanical that copyright should not apply at all.

It was not until the experience of photography had became commonplace that it was understood that photographs are of variable quality reflecting both aesthetic and mechanical judgment. Even then, courts looked variously to the photographer, the person who superintended the shot, and the party who commissioned the shot as owning the copyright. Some judges treated owing the tangible property in the negatives as necessarily leading to ownership of the copyright in the image as well.

The situation was re-addressed when Australian copyright laws were revised in 1968 with the Copyright Act 1968 (Cth) awarding copyright to the 'taker' of the photograph. This decision treats the production of the negative and printing of the photograph as less significant creative processes than the framing of the shot. It may make sense to overlook the production of the negative and the prints in the case of the amateur photographer who gets their photographs 'mass' processed. However such works are not really the stuff of infringement actions. When it comes to professional photography, the processes of developing, editing, cropping and printing photographs can be just as crucial as actually taking the shot.

Copyright law overlooks this reality. The emphasis on the 'taker' flows from copyright's desire to translate the work into a discourse that separates the 'original' and the 'copy'. Copyright law has dealt with photography by translating its production techniques into terms of the literary model. Rather than reappraise the utility of concepts such as the 'original author' and the 'fixed expression', the law has stretched their meaning to fit the new situations.

Audio CD, digital audio and copyright

In the mid to late 1980s there was a flurry of writing decrying the danger of digital audio technology such as digital audio tape [DAT] and compact disc digital audio [CD-DA]. Writers warned that musicians were soon to be superseded by computer samples, artlessly strung together by 'digital pirates', out to make a quick dollar. It seemed that the difficulties described in the case of photography would reappear.

Within less than a decade these cries now seem overwrought and exaggerated. Why is it that such a major technological change as digital audio could be so easily and quickly accommodated?

Remastering and mixing music raised new issues of authenticity in recordings. Sampling raised questions about how small a part of a song could be taken, reused and still represent a whole, other recording. Both remastering and sampling led to new ways of costing and recirculating old musical works. However whilst digital audio involved a significant change in the treatment, recording and storage of sound, the technology failed to fundamentally disrupt existing understandings of music and of copyright.

In music, there was a long established history of dealing with new instruments and methods of producing music; new music styles or genres; collaborative works; reducing music to component efforts (lyrics, score, performance, recording, broadcasting rights). Compared to photography, there was a clear understanding of the issues and interests at stake.

In law, there was little question as to whether copyright should apply to digital audio and to whom copyright payments were owed where the sample was easily recognisable.

Digital technology also brought with it new ways of masking the original source of a sample and obscuring the interest of the original copyright owner. However it is only when discrete contributions can be discerned and ascribed an owner that copyright has much of a role to play, whatever the media form.

In photography there were never clearly defined contributions or segmentation of the creative processes involved. Despite the early attempts to reduce photography to a matter of technique, unlike music, the photograph resisted capture or forms of notation. The negative, even though being a key to a photograph, has never been seen as equivalent to a musical score or lyrics.

Computer works and copyright

The difficulty with computer works is the lack of consensus in approaches to the technology. How you define a computer work very much depends upon what interests you have as: consumers of computer works, educators, generalist or specialist application writers, system operation packagers, hardware suppliers, component manufacturers, service providers, distributors or resellers. Points of view are unlikely to coincide. Without an accepted hierarchy of efforts or interests, attempts to capture the essence of the technology in a legal definition will prove difficult.

Computer works are expressed in digital format, but only accessed by the public through interaction with an interpretative device - a computer. The problem this creates for copyright is that the expression - the stored information - is unintelligible until it is processed through another apparatus.

With computer works we cannot but acknowledge that the medium is the message. We only experience the media in a virtual landscape, that landscape being activated by the 'reader'. The arrangement of this 'landscape' is affected by individual configurations of hardware, by other software accessed by that machine, and by further individual decisions made on the spot by the user.

Because reader interaction on a number of levels is required to make any computer work accessible, individual experiences of it are inevitably different. Further, beyond different individual experiences, the material form of a work accessed by any one individual is fleeting. This means that even on an individual level, the work is experienced as endless, multiple variations rather than as a fixed enduring form.

This does not make the experience of computer works inherently different to that of other media. It is a fiction that other literary and artistic works exist in a fixed form, fully inscribed with meanings formulated by a solitary creator. However with computer works it is impossible to even fictionalise a moment at which the work appears complete. Because the computer work cannot be experienced without also experiencing the technology, we have no temporal reference point that allows us to consider this work as currently 'owned' prior to other interactions with it. If a pristine expression cannot be identified outside of the relations of mass circulation how can we define what is to be protected once copies of the work are in circulation? There is no fixed form against which other infringing works can be measured.

At the same time, the computer work can be interpreted as individual works already protected in copyright as works entailing other media, eg. the text is a literary work, the sound is a sound recording, the graphics or photographs are artistic works etc.

This means that when there is an alleged copyright infringement of a computer work, the author's claim to own the entire work cannot be taken for granted, notwithstanding the acceptance that a tremendous amount of skill and judgment has gone into the making of the product. Whereas in other copyright cases, a degree of skill and judgment leads to an assumption that the author owns the entire expression, in computer works it only leads to a questioning of the quality of his or her contribution in order to refer to the boundaries to which he or she may have a claim. It cannot be assumed that the author's expression equates to the work as experienced on the machine. The author always owns something less than that.

When dealing with the copyright protection of computer works in Computer Edge Pty Ltd v Apple Computer Inc (1986) the High Court dealt with this problem by splitting the computer work into two component parts - defined by Justices Mason and Wilson as the 'source code' ('a computer program written in any of several programming languages employed by computer programmers') and an 'object code' (the version of a program in which the source code language is translated into the machine language of the computer with which it is to be used').

This does not accord with reality - the two codes are mutually designed and no work exists until both codes are executed. However, as the source code existed in a tangible literary form before input into the machine it was held to be entitled to copyright protection. That the only point of using such a code is so that it can be read by the machine was no obstacle - copyright protects the expression without needing to judge the work itself.

Under this scheme it was held to be impossible to protect the object code - an expression in the form of electrical impulses. Because the object code had no tangible or visible existence outside the machine it was held to be incapable of protection.

It may be thought that amendments made to the Copyright Act in 1984 removed the need for such an artificial approach. 'Literary work' was defined to specifically include computer programs (source and object code), and 'material form' now included any form of storage, whether visible or not.

In another High Court case Autodesk Inc and Anor v Dyason and Ors (1989) the problem of what it is that is to be protected re-emerged further down the line.

In this case Dyason sold a device that, by imitating its function, effectively disabled the part of the Autodesk program that was designed to prevent unauthorised copies of that program being made. Although there were hardware and operational differences, the High Court determined that the device copied a component part of Autodesk's program. Although the infringed material (essentially a random series of numbers) was not considered substantial enough in itself to constitute a computer work, it was a substantial enough part of the total program that to copy it constituted a reproduction of the total Autodesk program.

Autodesk was deemed to 'own' the experience of the program operating on the machine, but it is the users who are required to operate the 'expression'. To extend copyright so completely belittles the user's contribution. It confronts a common sense understanding of computer works as something less than full, complete and indivisible works. It is also out of step with copyright's desired goal in this area which is not the full protection of computer works per se, but, as stated by the Copyright Law Review Committee, 'the balancing of rights, allowing scope for innovation, while providing security against unfair competition'.

It is not only that because we experience computer works differently to other works that something less than full protection is needed. The commodification of computer works operates differently to that of other works within the established copyright regime. Something less than full protection might actually be required to ensure the viability of these markets or products or serve the interest of consumers.

Alternative approaches

There is already a recognition that a different type of protection is needed in many sectors of the computer industry. A certain level of copyright infringement is often tolerated as a sensible business practice. As US techno-culture writer John Perry Barlow has noted, broadly pirated software such as Lotus 1-2-3 or WordPerfect can become a standard and profits are made as consumers become familiar with a particular package and wish to acquire manuals, upgrades and associated products and services.

As in the Autodesk case, computer programs can be encrypted to prevent copyright infringements. However the benefits of this protection must be weighed up against the extra impediments encryption creates for consumers. If there is a less complicated alternative package to the encrypted software, sales will suffer.

In the multimedia industry, an interesting balance is emerging in the form of intellectual property infringement insurance - an 'Errors and Omissions Policy'. Clearing copyright is one of the most expensive and time consuming parts of multimedia production. The need for protection is balanced against quicker and cheaper consumer access. Insurance helps reconstruct that balance.

Balance can also be seen in the much mooted idea of 'share-right' media, where the maker allows their material to be reproduced free of charge, if the recipients of their work do the same. This development reflects the understanding of those working in software development of the collaborative nature of their work - and thus the inappropriateness of any one party having the right to restrict access to that work.

What seems to have emerged over the past two years is an articulate, loosely organised, 'anti-intellectual property' position. Writers are voicing alarm at the social, economic and political consequences of an information superhighway policed in the interests of a small number of transnational empires. The copyright regime is coming under fire because it is seen to be the chief weapon in a global corporate invasion.

John Perry Barlow explores traditional views about what information is, how it is generated, conveyed and made valuable, highlighting why these views are inappropriate for digital media. He proceeds to suggest that:

Intellectual property law cannot be patched, retrofitted, or expanded to contain digitized expression any more than real estate law might be revised to cover the allocation of broadcasting spectrum ... Digital technology is detaching information from the physical plane, where property law of all sorts has always found definition.

It is interesting to note that even conventional copyright lawyers concede many of the same points about the limitations of copyright law in this field.

Anticipating change

Computer works are produced and circulate differently to any work we have dealt with before. They involve a different nexus between author producer and consumer. It is not a one-way flow from creation to reproduction to consumption. Computer works depend on the continuing collaboration of authors, consumers and producers.

In fashioning copyright protection for various sorts of computer works, what will be required is an unprecedented understanding of the nature of the industry and the diversity of practices and interests involved in it. There will have to be less reliance on conventional computer experts which to date has led to an overstating of the contribution of the programmer and the understating of the input provided by other collaborators, including the consumer. In any case, the broader effects of awarding protection to any particular player must also be considered.

The emerging industry practices which provide alternatives to traditional copyright protection are in sympathy with the idea that 'people who create should receive adequate compensation for what they've done, not every compensation' (C Berry, Wired 1995). Formal legislative support of this principle might offer a way out of the current copyright malaise.

The multiplicity of forms and functions associated with new technology such as computer works makes it difficult to integrate them into an established framework This means that it is difficult to reach a consensus about what interests the new technology involves, as a matter of law. What is appropriate for one kind of computer work may be disastrous for another. Law reform has to create a framework by addressing the broader policy issues at stake, without being too specifically tied to any particular technological process or interest.

Where there is no established framework for understanding a new technology, law reformers have the opportunity to create one. The issues are comprised of complex and contentious moral, political and economic judgments. Further as with the drug law debates, there are many entrenched interests and complications involving international pressures and the requirements to conform.

Anglo Australian copyright law reform is made all the more difficult because of the historic avoidance of elaboration of copyright principles, that started with the uneasy denial of a common law basis to the law. Further, unlike US law, we have no constitutional principle that states that the purpose of intellectual property rights is to offer an inducement to authors and inventors to create and disseminate intellectual works.

Perhaps this is why the identification and discussion of the basic copyright issues always seems to make us a little uneasy and sceptical of the practicality of such an approach. However, copyright has always involved basic issues of principle hidden beneath the Act's fragmented and technical veneer. Without developing a framework for these issues, is there any other way we can progress?

An earlier version of this article appeared in the University of NSW Law Journal (1995) 18 (2).

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