THE HON MICHAEL KIRBY

Could I say that I left hanging in the air the second point that Lawrence taught in a very different lecture that he gave in London, but it is relevant, and I would like to ask him about it, and that was the lesson you taught about the difficulty of securing change because of the corruption of our political system by reason of the intermeshing of politics with reform.

In a week’s time, I go to New York for a meeting with the Council on Foreign Relations,1 and the UNAIDS Global Reference Panel,2 which is relating to how, in the new Obama world, we adjust our response to the AIDS epidemic, given that President George W. Bush tripled the funding of AIDS assistance, which was a very good thing, but [in a way] designed to exclude the United Nations and the UN AIDS machinery – as some have sometimes unkindly said, because of the very large resources that were paid into his electoral funds by the pharmaceutical industry.

And I think it would be helpful, you have given us as it were, if I dare use this expression, the road map, but we really have got to know, does the road map lead anywhere given the intermeshing of industry and politics and the funding of politics in all of our countries?

PROFESSOR LESSIG

Yes, it’s a great question, because in fact as some of you know, about a year ago I said that I was shifting my academic work away from these questions of free culture and balance in copyright to focus on what I call this problem of institutional corruption

125which is not the problem, of say, Rod Blagojevich, who was the Governor who tried to sell a Senate seat for money, or Randy Duke Cunningham, who would sell defence contracts in exchange for kick-backs to himself.

Not that kind of corruption, but instead the kind of corruption which is endemic in the American political system, where politicians spend between 30% and 70% of their time raising money to get back to Congress, and therefore become enormously sensitive to the wishes of those who provide the greatest amount of funding. I think this is a central part of the problem, fixing that problem.

And it’s not, as you said, just an American problem. Take for example, the situation of the democracy gap that exists in Europe right now. The EU recently has been considering the question of whether to extend the term of copyrights for recordings. The recording term was 50 years. This of course was an issue at the centre of my work, because we began our organising around the Sonny Bono Copyright Term Extension Act, which extended the term of existing copyrights by 20 years in the United States. The EU wanted to extend the recording term from 50 years to 95 years.

And when that was being considered in the United States, we brought a challenge, when it was being considered as legislation, and then we brought a legal challenge to it once it was enacted, challenging the constitutionality of this extension. The extension challenge was supported by a brief that was signed by about 17 economists including five Nobel Prize winners including such lefty liberals as Milton Friedman, oh I’m sorry, wait, he’s a right wing Nobel Prize-winning economist.

Milton Friedman said he would only sign this brief if it argued that there could be no public good that would come from extending an existing copyright, and if the term “no-brainer” was in the brief somewhere, so clear was it, that this could serve no public interest. When Europe was considering the same issue, a whole bunch of respected institutions around Europe considered the question.

Gowers ran a Commission in Britain about intellectual property generally, and concluded that it could “never make sense to extend the term of an existing copyright”. In Holland, there was an equivalent study by a very respected intellectual property centre that made a similar conclusion about how this could not serve the public interest at all. Yet just last month, the EU voted to extend the term of existing copyrights for recordings, again, solely because the industry has such an enormous influence on policy makers. They acted independently of what makes good sense from a public policy perspective.

Now, you know, when I changed my work, there was this moment, this ah-ha moment, that kind of showed me that I wasn’t as smart as I thought I was, because I should have figured this out a long time ago. But the ah-ha moment was watching Al Gore give his speech about global warming, and one of my closest friends was the director of his film, An Inconvenient Truth, so I got to follow him around and watch 126him give this speech a bunch of times. But one of the points that Gore makes, less so in the film, more in his actual speech, is that the very same dynamic that I am complaining about in the context of intellectual property, has lead the United States to make it impossible for them to address the question of global warming.

Even today, with Barack Obama as President, and the Democrats controlling both Houses of Congress, I would predict there is a 57% to 60% chance that this Congress will not be able to enact global warming legislation because 12 Democrats could not afford to vote against the oil or coal industries, and continue to raise the money they need to get back to Congress.3

The ah-ha moment was recognising, wait a minute, it’s not just esoteric questions like copyright where this corrupting influence is driving bad policy. Absolutely every single fundamental public policy question America faces, including the most important questions, global warming, health care, the financing systems, are stopped because of exactly this corruption.

My view was that unless we find a way to deal with that, we won’t be able to deal with copyright, or global warming, or any of these other issues either, and so, yes of course, I am sceptical that we can address these issues before we address the others. But what we can do is at least make it obvious to people who have the principles of copyright in their heart, that really are genuine scholars, or lawyers, focused on what copyright should be about. It is at least possible for us to get those people to recognise what is good policy and if we can’t get policy makers to implement it, at least we can get the profession to recognise it. And that, I think, is an enormously important first step, that at least gets us towards the place where policy makers can be shamed into doing what we all recognise is the right thing.

THE HON MICHAEL KIRBY

Some of those comments would have caused ah-ha moments to us in Australia because we have certain similar issues as in the United States. Now Brian can we have five minutes for a few questions? Oh, we’ve got eight minutes.

Ok, short questions or comments. Yes – and if you wish to identify where you are from.

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BRIANNA LAW FROM WIKIMEDIA AUSTRALIA

In your talk about how copyright law might be reformed, you make a distinction between amateurs and professionals, and I wonder if with digital reproduction lowering the cost of producing and disseminating works, is that still meaningful and how can we define that?

PROFESSOR LESSIG

Yes, it’s absolutely true that the line between amateurs and professionals is going to be a hard one to draw. But just because we lawyers are very good at turning any black and white distinction into grey, indeed that is how we are trained, that is why we are paid so much money, we can turn black and white into grey, we should recognise that there are radically different reasons that people create.

Some people create for the money and they should be respected because they are great creators, they are trying to be a professional, they are trying to make their creativity, make it so they are free to create.

But there are other people, the original meaning of the word amateur, who create for the love of their creating, not for the money. And when they engage in that act, what they are doing has nothing to do with money, and indeed, if you introduced money into the mix, it would change the kind of creativity. You from Wikimedia know this very well. Wikipedians are people who create access to knowledge because they want to share that knowledge. If Jimmy Wales4 were to institute a system of paying editors for editing Wikipedia entries, I think the quality of the editing would go down because people participate in that economy of creativity for the love of what they are doing. And we need to respect that there are those economies that we want to continue. Indeed, everybody wants to continue. Think about the sharing economy of two lovers, right. Introduce money into that economy, you have radically changed the nature of the interaction there, in ways that even conservatives who love the market would say no, no, no, we don’t want the market to be functioning there.

The point is to see that we have these different motivations for creativity, and we need to respect them, and have a system that can respect them, even though there are going to be places where it’s hard to tell the difference. We need to work hard to figure out how the law needs to negotiate the differences, but still not lose sight of the fact that there are important kinds of creativities on both sides of that line.

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THE HON MICHAEL KIRBY

Adrian Sterling, I’ve got to give you a fair go now. I think it might be a chance for you to ask a question.

PROFESSOR ADRIAN STERLING

Thank you very much. I’m one of those persons that Professor Lessig referred to as a person with copyright in his heart, and a little while ago, I heard lots of discussion about what Professor Lessig said and how bad for copyright it was, and how terrible it was. So I thought, well perhaps one should look to see what he actually says. So I got a copy of his book, Remix, published in October last year by Penguin and read it through and came to the conclusion that I agreed with everything that he said. This afternoon, I’ve heard him repeat some of that and also bring us up to date, and I still feel the same way.

And I want to make just one or two very quick remarks of how I would suggest one takes into consideration reaching that objective that Professor Lessig has brought before us. No abolition, but compensation for right-owners, and recognition of the rights of the amateur in Remix, and so forth.

The first thing is, I would say, I don’t think that we need, or should have, a revolution. Revolutions sometimes don’t end up where they want to be directed. What we need is an evolution, and I don’t believe that evolution can be achieved, which we would all want to, by trying to get international changes to the conventions, which we would need, if we were going to change radically the conditions on exclusive rights of copying, reproduction and communication to the public that are granted by the conventions. We have to remember that in the Berne Convention diplomatic conferences, there must be unanimity of voting to change the Convention. We will not get unanimity on changes of that nature.

Therefore, my suggestion is that the road we follow is to consider what rights are in existence now, and how they should be administered. It’s the administration of those rights, rather than changing the rights and I believe firmly that those who administer the rights of authors and others, have it within their power to evolve licensing systems and to evolve ways of administering rights, which will fully meet that matrix which Professor Lessig has showed us. That is, as it were, the free area, the regulated area for payment, and those where there’s a cross-over.

I do believe, though, that we need to have everything specified in the sense that it is legitimated. I would like to see the situation reached, where my use of somebody else’s work is legitimated either by a licence or by legal provision. But I want to know where I stand and I believe this can be achieved. 129

There is one area that I think Professor Lessig and all of us need to think about in order to achieve this great objective, which is moral rights. When my work is subject to remix in that unregulated area, what about my moral rights.

Now, we have to recognise that moral rights are under the Convention, so we have to see how we are going to meet that. Thank you.

THE HONOURABLE MICHAEL KIRBY

Ok, moral rights or licensing.

PROFESSOR LESSIG

First, I am grateful to you for doing what I have always thought too few of my opponents have done, which is to actually read what I have said, and to engage in that act of understanding. There has been too little of that, and I take responsibility for inflaming the passions of this, I understand. But my hope is to make peace by understanding, exactly the way that you have done.

Number two, I also agree that evolution is what’s important here. As you will remember in my book, I talked about my colleague, Terry Fisher’s, proposal for radically changing the way copyright law functions, through basically eliminating the property right character of copyright, and replacing it with a whole system of basically sampling use and compensating on the basis of that. And I say that I don’t support that because it is too radical a change. But the German Green Party’s proposal for the culture of flat rate is actually backed up with a very careful analysis of how that is consistent with the international conventions, and I think that’s the kind of evolution that is needed here.

Finally, I’ll confess with respect to moral rights, it might be here that there’s the greatest potential for conflict. If there’s a point of agreement, I would say it’s this. My view is not that we should give up moral rights. Indeed we should encourage respect for moral rights in just the sense that people should identify and criticise people who misuse other people’s work. So moral rights, in the sense not just of attribution, but in the sense of maintaining the integrity. The only difference we might have is whether that criticism should be engaged in a court as opposed to in the public sphere.

The principles of free speech from America would tend to say that, if you have an argument about how I’m respecting you, that is an appropriate argument to engage in contexts other than legal jurisdictions. It’s kind of an engagement to have in the context of open public discourse. So, I should say, this person has misused that person’s work, and we should say, shame on you for doing that, and we should punish 130you in all of the ways that we punish people without using courts. But the burden of legal jurisdiction here is too great.

Now I understand there is room for disagreement here, and the European traditions are much stronger, and as they have been grafted into Japan and many parts of Asia, much stronger than in the American tradition, but I think this is a source of disagreement where we can genuinely understand each other, and try to make progress.

THE HONOURABLE MICHAEL KIRBY

Can we have one more question? Yes very well, I think this gentleman here.

MARK CALLAGHAN – AMPAL (AUSTRALASIAN MUSIC PUBLISHERS’ ASSOCIATION LIMITED)

I was just going to make a couple of comments and like Professor Sterling, I was enthralled with today’s presentation. I thought it was a breath of fresh air frankly. I also echo his concerns about moral rights and I think ironically, it could be an area that could be agreed upon perhaps more readily than many others yet it is the most complex. I mean, take your reference to the use of Lionel Richie’s song to parody George Bush, I mean, he may genuinely have thought it wasn’t funny. I mean, he may be a Bush supporter and, you know, we need to respect that.

I think one point that I would like to make, that I think is relevant to this debate, that doesn’t get raised a lot, is that there’s an additional difference I think in the context of comparing our modern re-write experience with a historical one, in that much of what goes on in that space in You Tube, and on the net and MySpace is commercialised activity. And I think that’s a very different overlay to what has happened in the past. And I think I just wanted to make that comment and say that pirate sites, for example, are commercial activities, whereas they are portrayed as being about sharing, although the people that run the sites are making money.

PROFESSOR LESSIG

Yes, so I mean it is a weird inversion. I can only speak about the law in America here. But if you think about a kid taking some videos, and remixing them, he could be engaging in that activity for purely non-commercial reasons. He uploads it to You Tube and You Tube’s use of it, in some sense, is deeply commercial. They are in the business of trying to make money. Yet the law says that what the kid does is illegal. But if You Tube takes the thing down within a certain number of days after having notice 131of the copyright violation, YouTube is immune from any responsibility. And I think that is exactly backwards.

I think what the kid does, should be completely privileged, a free type of creativity. If it’s uploaded to You Tube or the equivalent, then I think it’s totally appropriate to say that there should be some, you know, flat rate license or some blanket license that is covering the music that’s inside that, that has to be paid for by the commercial service, so that it compensates the artist for the commercial use of their work. Just like a public theatre has a blanket license for songs that are performed in the public theatre, so too in the context of what You Tube is doing. Yet we haven’t got to that position at all yet and I think, you know, we certainly need to find a way to get there.

THE HON MICHAEL KIRBY

Brett Cottle – one last question or comment.

BRETT COTTLE CEO AUSTRALASIAN PERFORMING RIGHT ASSOCIATION

Professor, I just wanted to take you back to the map of Europe where you contrasted the French approach to the German approach, and the cultural flat rate being proposed by the Greens in Germany. I don’t think you will be surprised to know that the authors’ societies are in violent agreement with you about that approach. The problem, of course, is how to get to that solution. It is a very difficult legislative path, and, of course, the people who would be paying the cultural flat rate, would inevitably by the ISPs. My question to you really is, how do you think we can get, by regulation, to that path, to that position.

PROFESSOR LESSIG

Well, it’s good to see you again. We had the pleasure of debating in Europe about these questions about a year ago. I think that there are two steps to getting us there. First, we need to have a debate which isn’t the debate between three strikes and the culture of flat rate, but a debate that brings more traditional rights’ holders into the space that says exactly what you have just said. That we support a move towards this, and lets figure out how to implement it.

Number two, we need some experimentation between jurisdictions. I don’t think any of us has a clear sense of what’s going to create the right balance between artists and the public, and we need to find some – we need to see something about how it’s actually being implemented in different jurisdictions. Now, as you know, as was commented before, that turns out to be pretty hard, because of the uniformity of IP 132rules enforced by agreements internationally. But I think that if we had a genuine and good faith conversation between the rights’ holders, and the community, about this, and allow some diversity in the implementation, we could move towards a system that we begin to recognise as actually achieving those objectives.

One important thing, though, is to bring the whole of the artistic community into this discussion. And I’m sure you are aware there’s this extraordinary Heidelberg manifesto that has been created in Germany by a bunch of authors who are absolutely against the internet, they are against anybody having access to their work on the internet, and they have created this huge public outcry against a lot of these changes, because they happen to be the most popular writers. They all happen to all be over the age of 60 too, but the most popular writers in Germany.

And I think there’s a great amount of misunderstanding here about what exactly we should be achieving. I think if we found more ways for people like you, and people like me, to stand on a common platform, and point to the kind of answer that would be the right answer, then we can have lots more progress in getting to it than we’ve had in the last 10 years, I think.

Thank you very much for your attention.

THE HONOURABLE MICHAEL KIRBY

We’ve already thanked Professor Lessig, but I want to make two little comments in closing.

First, I tried to keep, out of the corner of my eye, an eye on you all, and I noticed you all looking at the text that was coming up, instead of looking at the man who was presenting, and doing it so eloquently. I’ve learned from having watched Professor Lessig before, it’s a whole experience just watching him, instead of watching all the text, though he makes the text very watchable because he puts pictures and other things in there, and you’re waiting to see what comes next.

The second thing is, and it won’t go away, the issue of a democratic politic and how it copes with this issue. I mean we can have dreams of how one would have radical change, but Adrian put a little bit of a real issue into the mix there. And it’s appropriate we should think about that in this House, because when I was young, when I was first the Chairman of the Law Reform Commission, this was the Parliament of Australia. It was a temporary or provisional Parliament House. It was opened in 1927, the Parliament having from the beginning of Federation been in Melbourne, in the Melbourne parliamentary building in Spring Street in Melbourne, and then they moved up here and King George VI as he later became, the Duke of York and his wife, the Duchess of York, later the Queen Mother, came here. 133

There’s a wonderful portrait of it actually in the King’s Hall, which shows them arriving, and the troops lined up, most of whom would have fought in Gallipoli and on the Somme, and it is important for us to remember, though we are a small country, we are very very mature democracy. We have the fifth oldest still working constitution in the world and this is the chamber of the fifth oldest continuous constitutional nation in the world. And therefore, when Professor Lessig throws out a challenge to us from his vantage point, and from his tremendous ability to see things conceptually, which is what we wanted him to come and do for us, and what he’s done for us, then we’ve got to take that seriously.

Our Parliament has moved up the hill, but ours is still the fifth oldest Constitution in the world, and the fifth oldest continuous democracy, and this is its House, and we are privileged to sit in this House and to reflect on all of the battles and the democracy that were fought out here. And if you have time, just wander, just cast a glance into the old House of Representatives, green carpet as in the Congress, as in the House of Commons, and into the Senate, where there’s red carpet.

And that is the heart of democracy in this nation. So we’ve really got to think about what we’ve said, and I think that on top of a magnificent morning of a great cake – what a cake we’ve had today. A terrific morning of history and of interest and of personalities. We’ve had this most insightful session and I’d ask you once again to thank Professor Lessig.

PROFESSOR BRIAN FITZGERALD

Well thank you both, I’m not sure which one of you travels more, or which one of you was more passionate about your topic, but all I know is I’m thankful that both of you are here. Tremendous presentation Larry. I know it’s a very difficult time, you’re moving from Stanford back to Harvard, and you’re in the process of doing it, and it’s a horrible time to have to travel across the world to a far-flung place like Australia. Thank you very much.

And Michael Kirby, the Honourable Michael Kirby, thank you for coming down in between all of the engagements that you’ve had yesterday, and today, for what has been truly a memorable session. Thank you.