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Queensland University of Technology Law and Justice Journal |
I am very pleased to welcome Professor Lawrence Lessig to speak to us
tonight on the subject Does Copyright Have Limits: Eldred v Ashcroft and its
Aftermath?
As I am sure most of you know he is now a professor at
Stanford Law School and founder of the School’s Centre for Internet and
Society. Previously he was the Berkman Professor at Harvard Law School. My
American friends tell me that Stanford is now the best
American university for
intellectual property law. Perhaps there is some connection.
Before his
academic career Larry Lessig clerked for Justice Scalia of the US Supreme Court
and Justice Posner of the US Federal Court’s
7th Circuit Court
of Appeals. Judge Posner is a leading judge, scholar and theorist who has
written much about economics and the
law. Appropriately Professor Lessig has
degrees in economics, management, philosophy and law from several of the
world’s best
universities, the Wharton School of Business at the
University of Pennsylania, Trinity College, Cambridge (that is the original
Cambridge),
and Yale Law School. He is the author of several influential books,
including The Future of Ideas: The Fate of the Commons in a Connected
World, and Code and Other Laws of Cyberspace, and numerous articles.
He writes not just for lawyers but for intelligent members of the public and has
a talent for making the complex
lucid.
His interests lie in ideas and
their future in a wired world. His work as a legal scholar concentrates on
constitutional law, contracts,
comparative constitutional law and the law of
cyberspace. His rapid rise to fame comes from the force and timeliness of his
ideas
and the skill and energy with which he propounds them. His book, The
Future of Ideas should be required reading for anybody with a serious
interest in the proper and free dissemination of ideas and information and
the
structure of the Internet as affecting those issues.
His arguments are
well illustrated. The freedom he espouses is that of free speech, not free beer.
Resources are ‘free’
he argues if they can be used without the
permission of others or the permission one needs is granted neutrally. In that
context
he argues that the question for our generation will be not whether the
market or the state should control a resource but whether
that resource should
remain ‘free’.
Three organizations with which he is
associated, the Creative Commons Project which he chairs, the Electronic
Frontier Foundation
and the Center for the Public Domain, are leaders in the
attempt to diminish the extent of the monopolies created by intellectual
property law. But he is not opposed to private property or the need to reward
the creative. To paraphrase him in a recent response
to Bill Gates of Microsoft,
he is not a creative communist but a creative ‘commonist’. His
concern is that the monopolisation
of intellectual property has gone too far and
that it is infringing on our ability to draw on what most of us see as the
commonly
owned resources of society, in the formation and expression of
ideas.
What does he mean by the ‘commons’? Let me use my own
analogy with a local flavour, particularly appropriate in the middle
of a hot
Queensland summer and dear to the heart of Professor Brian Fitzgerald, the
organiser of this conference. Australian beaches
are publicly owned and freely
accessible to all. How different would our coastal society be if that resource
were locked up in private
hands, only accessible to the proprietors of the land
bordering our oceans or to those whom they licensed? It is not an idle
comparison.
Many European countries and American States do just that –
lock up much of what we perceive as a free, public resource.
When the
decision is made to place such a resource in private rather than public hands
the consequences are difficult to reverse.
Those who have lived in Brisbane as
long as I have will recognise how public access to our river banks has slowly
increased over
the last few decades and how much the city has benefited. The
river’s development as a public resource has required imagination
and
significant expense because its banks were traditionally held in private hands.
The floating walkway at New Farm is one example
both of the imagination and the
expense. It shows why it is important to make the correct decisions, now needed
to keep ‘free’
access to the still relatively new resource created
by the Internet.
Professor Lessig first attracted broad public attention
when he was engaged as an expert to assist Judge Thomas Penfield Jackson of
the
US Federal Court with the monopolization issues in what has been described as
‘the mother of all tech litigation: Department of Justice v
Microsof't’ in 1997.
His contribution to this conference will
deal with the decision in the US Supreme Court, Eldred v Ashcroft, where
he was one of the counsel who unsuccessfully argued that the US Congress’
Sonny Bono Act, extending the copyright period for most existing works to
95 years after the author’s death and for new works to 70 years,
was
unconstitutional. For his efforts he was named one of Scientific
American's ‘Top 50 Visionaries’, for arguing ‘against
interpretations of copyright that could stifle innovation and discourse
online’.
The constitutional arguments were that the Act infringed the
free speech guarantee in the first amendment and the copyright clause.
The
copyright clause gives Congress the power to promote the progress of science by
securing to authors for limited times the exclusive
right to their writings.
When I first read of the impending case about two and a half years ago the
argument that interested me was
that the retrospective extension of copyright
was not for a ‘limited time’ when added to the earlier statutory
limitation
and understood in the context of the power’s focus on the
progress of science.
The argument did not succeed but, if we had a
similar provision in our Constitution, it may have had a rather better run in
our High Court. It is not as deferential to Parliament as the US Supreme Court
is to Congress
in respect of what we would think of as jurisdictional facts. I
suspect we have not heard the last of the argument, given the demanding
appetites of American copyright holders and the powerful dissenting judgments.
With the Free Trade Agreement between Australia and
the USA the issue will
remain important for us as well.
Congratulations to QUT, Professor
Coaldrake its Vice-Chancellor, and Professor Brian Fitzgerald, the Head of the
Law School, for organising
this conference and for securing such an outstanding
speaker as Professor Lawrence Lessig. The Chief Justice Paul de Jersey is on
leave but it was with his encouragement and cooperation that the Court’s
facilities have been made available. I would like
to thank him also.
It
is appropriate that the Court provide its facilities to allow the public free
access to this speech and we embrace the chance to
be associated with the QUT in
advancing the progress of science.
[*] Justice of the Supreme Court of Queensland. This keynote introduction was delivered at the Banco Court of the Supreme Court of Queensland on 19 January 2005 as part of the Open Content Licensing (OCL): Cultivating the Creative Commons Conference, presented by the Faculty of Law, Queensland University of Technology.
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URL: http://www.austlii.edu.au/au/journals/QUTLawJJl/2005/14.html