Clark, Eugene --- "Book Review - Copyright Limitations and Contracts: An Analysis of the Contractual Overidability of Limitations on Copyright and Intellectual Property in the Digital Age: Challenges for Asia" [2001] JlLawInfoSci 20; (2001) 12(2) Journal of Law, Information and Science 285

• Copyright Limitations and Contracts: An Analysis of the Contractual Overidability of Limitations on Copyright
• Intellectual Property in the Digital Age: Challenges for Asia

Copyright Limitations and Contracts: An Analysis of the Contractual Overidability of Limitations on Copyright

BY LUCIE MCR GUIBAULT

Kluwer Law International ISBN 90-411-9867-9

Price: 110.00 EUR/101.00 USD/69.00 GBP

and

Intellectual Property in the Digital Age: Challenges for Asia

CHRISTOPHER HEATH AND ANSELM KAMPERMAN SANDERS

Kluwer Law International ISBN 90-411-9847-4

Price: 85.00 EUR/78.00 USD/53.00 GBP

Copyright Limitations and Contracts is a detailed investigation of how the combination of copyright protection and contract law principles have been used to tip the balance strongly in favour of copyright holders and against the interests of free speech and the free flow of ideas, information and commerce. The author’s main argument is summarized in these terms:

“In all evidence, the rules on copyright and the general limits on freedom of contract prove insufficient to ensure that the legitimate interests of users of copyrighted material are taken into account in copyright licensing agreements. The inadequacy of the law is particularly acute with respect to the newly developed practice of marketing copyrighted works to end-users subject to the terms of a standard form contract. In fact, none of the legal principles studied in this book provides sufficient means to control that the copyright owner’s right is exercised in conformity with its intended purpose and that the functionality of the copyright regime is respected. The lack of effective control over this form of exercise of copyright may in the long term have dire consequences for the production, dissemination, and access to protected subject matter. Tolerance for restrictive licensing practices may also have a determinative impact on the size and the wealth of the public domain.”( P. 302)

This lack of balance is a major factor in fears that the immense potential of the Internet will be unrealized as copyright owners tie-up everything and usher in a ‘Silent Spring’ on the Internet—an argument made strongly by many academics, most notably by Stanford’s Prof Lawrence Lessig in his book, The Future of Ideas.

When one combines contract rights with powerful encryption technology, it may be possible for the first time in history for copyright owners to exercise virtually absolute control over copyright material and to do so on a global scale.

As I write this review, the Canberra Times today (July 29, p. 13) contains a report on a Bill introduced into the US House of Representatives last week that would give “draconian copyright protection’ to owners. It would allow groups such as the Motion Picture Association of America and Recording Industry Association of America to be immunized from state and federal laws if they disabled, blocked or impaired a “publicly accessible peer-to-peer file trading network.” This proposed legislation provides yet another illustration of just how precarious is the balance between the rights of copyright owners and others (licensees, the public, etc).

Another dimension to copyright protection is the North/South divide--the tension between Asian (southern) countries (mostly IP users) and northern countries (North America, EU), the dominant IP owners and enforcers.

Intellectual Property in the Digital Age: Challenges for Asia highlights the north vs south position in relation to intellectual property rights and explains why Asian countries are so sensitive about this issue. Unfortunately, the western press focuses almost exclusively on the poor record of intellectual property rights enforcement, while often remaining silent about the underlying political, social and historical context of intellectual property rights, especially as seen from an Asian perspective. The Southern position is perhaps put most strongly in the book by Vandana Shiva:

“Western IPR [Intellectual Property Rights] regimes have emerged as major instruments of North-South inequality. Not only do they block technology transfer but also facilitate piracy of the indigenous knowledge and biodiversity of Third World countries. They could, if not revised and reviewed, make northern countries monopoly owners of knowledge, including knowledge that has evolved cumulatively and collectively in indigenous cultures, selling it at high cost to already impoverished and indebted countries of the South, pushing them further into poverty and debt.” (p. 113)

Collectively, these two books demonstrate how important it is regularly to review the underlying values and historical rationale for intellectual property protection in order to understand possible effects, both intentional and unintentional, that policy changes may cause

Dr Eugene Clark, Professor of Law, University of Canberra