SCHOLARSHIP, INTELLECTUAL OWNERSHIP AND THE LAW
Canberra, 15–16 July 1999

Summaries of all papers

The aims of the symposium were:

• to identify common issues across the humanities, social sciences, natural sciences and technological sciences relating to intellectual ownership and the law,
   
• to review proposed government legislation and develop cooperative strategies for influencing legislators, and
   
• to promote greater public awareness of intellectual ownership and the ramifications of existing and proposed laws.

Professor Malcolm Gillies is President of the National Academies Forum and of the Australian Academy of the Humanities. He is a Professor of Music at the University of Queensland, with research interests in 20th century arts and culture.

In his ‘Song of Myself’, the 19th century American poet, Walt Whitman, looked at the animals, ‘so placid and self-contain’d’, and surmised: ‘not one is demented with the mania of owning things’.

The Bible blames the snake for this mania. In the Garden of Eden, the snake tempted the woman to eat from the tree of knowledge of good and evil. Sharing that intellectual property of the gods, the knowledge of good and evil, led to Man’s fall and banishment from the Garden of Eden.

Much of human history has been concerned with the ownership of physical things, most notably, land. Colonisation, based upon the legal concept of terra nullius, has given rise to the most intense quandaries of 1990s Australia.

The mass of inventions of the late 19th and early 20th centuries has pushed issues of ownership from the physical to the intellectual domain, into the realms of patents, trade marks, circuit layout rights and copyright. Here are several current flashpoints of intellectual ownership.

Iceland is compiling a health database, containing medical records, genealogies and genetic information, for most of its population. Study of Iceland’s shallow gene pool could help show the cause of various diseases. But who will play God to God’s codes? Who will ensure that this knowledge is used for good and not for evil? Who will decide what is good and evil amid such complexity? Many Icelanders, fearing commercial abuse, have refused to give permission for their data to go into the national health database.

Millions of people daily engage in the legally questionable downloading of music or audiovisual files from the World Wide Web. Can this be contained? Or will copyright not survive long into the 21st century?

Indigenous people seek to gain or regain control of their cultural heritage. How can indigenous communities continue to own and manage their materials? What do we do, for instance, when indigenous law does not recognise an end date to copyright?

Many gatherings have been held to ponder the legal intricacies of intellectual property laws or their ramifications particularly for business sectors or scholarly activities. For this symposium, the National Academies Forum wanted to capitalise on its reach across all the disciplines to examine the broader trends in intellectual ownership, then to see how these trends might relate to current or proposed laws. In particular, these include the Copyright Amendment (Digital Agenda) Bill to be introduced into the Federal Parliament later in 1999, and World Intellectual Property Organisation treaty proposals in areas of copyright, databases, performances and phonograms, and indigenous cultural rights. These laws and treaties are extending concepts of intellectual property into new and often contentious areas, such as industrial awards and international trade obligations.

Some of the dialectics to be raised by the symposium are:

• strong protection versus equitable access
• commercial competition versus cultural protection
• public versus private interests
• international versus national obligations
• collective versus individual rights
• the immediate versus the long term in policy
• artists and creators versus the rest.

Associate Professor Henrietta Fourmile teaches in the Centre for Indigenous History and the Arts at the University of Western Australia. Before that, she worked in Montreal with the United Nations Secretariat for the Convention on Biological Diversity. She comes from Yarrabah, near Cairns.

At least 600 million people identify as indigenous peoples and constitute much of the planet’s cultural diversity. If we include communities who have resisted the adoption of Western-derived practices of agriculture, forestry, animal husbandry and fishing, we are referring to the large majority of the world’s rural and coastal non-urban populations in Africa, Asia and Central America – between 1.5 and 2 billion people. These communities are the principal custodians and users of the world’s biodiversity, particularly that associated with our food and medicines.

The value of indigenous knowledge of traditionally used species has long been known. It has been used to increase the efficiency of screening plants for medicinal properties. The drugs atropine, codeine, morphine and quinine owe their origins to indigenous usage. Over 30 000 species of medicinal plants provide health care to an estimated 80 per cent of the world’s inhabitants.

The biological diversity on which the world’s food and medicines depend cannot be conserved without cultural diversity. Yet cultural diversity is threatened on an unprecedented scale. If language extinction is a measure of the loss of cultural diversity, half the world’s languages will disappear within a century.

Commercial interests seek free access to the knowledge of indigenous communities, which they consider to be in the public domain, and then modify the knowledge superficially and transfer it to the private domain of intellectual property rights. This is particularly the case in regard to the patenting of life forms and the recognition of plant breeders’ rights. This knowledge is communally owned by indigenous people but it cannot be protected by Western patent laws.

The Convention on Biological Diversity acknowledges traditional ecological knowledge and the customary use of resources. Acknowledgment is needed through the existing intellectual property regime or by setting up a new regime.

A number of options for the protection of indigenous knowledge are being considered. One is to require the prior informed consent of indigenous communities before bioprospecting contracts are issued. Another is to require the disclosure of the country or community of origin of knowledge or biological samples in patent applications; this could stop the issue of a patent.

Other options include:

• national governments that implement laws to protect indigenous intellectual property
• legal systems that recognise traditional resource rights
• industry codes of ethical conduct
• biodiversity agreements sharing benefits between bioprospectors and indigenous communities
• the use of existing laws dealing with cultural heritage, land tenure, nature conservation, economic development or community governance
• the accommodation of customary law within national legal frameworks and its use to govern access to traditional knowledge and resources.
• Indigenous communities may also use the common law as a source of remedy for unconscionable behaviour, unjust enrichment, breach of confidentiality, passing off and unfair competition.

International treaties, such as the Convention on the Elimination of All Forms of Racial Discrimination and the World Trade Organisation’s TRIPs Agreement, could also be used to protect traditional knowledge.

The myths of creation

Ian David is a screenwriter, known for his works Blue Murder and Joh’s Jury. He is an advocate for the rights of artists and creators and a board member of the copyright society, Screenrights.

As I get older I find I am persistently compelled to see myself as an economic unit, a cog in the machine of commerce. Marx didn’t get it all wrong. Two maxims increasingly ring out with each passing financial year. Capitalism turns everything into a commodity; and the ultimate goal of all capital is to achieve monopoly.

Those qualities of humanness (art, religion, language and kinship) eventually all fall to their knees and drop their heads to the sword of commerce, the balance sheet. The law of the jungle is, after all, the ultimate human environment.

My university days were joyfully naive, free of grubby considerations like fees and user pays. Thinking was free. The very strings and building blocks of life were sacrosanct, out of reach of advertising and marketing managers. Unfortunately, that’s all proving to be myth now. The gap between having an idea and using it is occupied by an accountant.

Two developments in the last decade of the last century of the millennium have conspired to turn up the heat on copyright creators. They are the final triumphant lunge at the tape by the forces of capitalism and the information access explosion of the Internet.

The free market economy has seen off its ideological competition and left us with a monopoly. ‘Competition’ and ‘productivity’ are words we now hear every day in relation to schools, universities and public utilities, as well as companies.

Conceived as a vast network for disseminating knowledge and ideas, millions now see the Internet as a shopping mall in cyberspace for bargain hunters and bored yuppies and stockbrokers with an itch for the latest toy. Good ideas make money and the Internet is becoming the equivalent of the information fast food franchise.

Recently The New York Times revealed that 83 per cent of the World Wide Web is reserved for commercial activity, while only 6 per cent contains scientific or educational material.

The commingling of these two regimes, free enterprise and the Internet, pose a serious threat to the creative community. The Federal Government’s proposed Copyright Amendment (Digital Agenda) Bill abandons the principles of free enterprise to regulate relationships and exchange in the digital age. The re-alignment of rights is disadvantageous to copyright creators and owners. It elevates end users and copyright holders above the creators of intellectual property.

The Digital Agenda Bill will, in effect, disallow copyright owners to protect their intellectual property due to the provision of fair dealing. The Copyright Law Reform Committee reported that ‘fair dealing provisions are needed to ensure the free use of copyright material in the digital environment for purposes that are socially desirable’. Is this a gift to the people? It would seem that one of the great planks of the modern economy, the user-pays rule, doesn’t apply here.

The legislation will allow the wholesale copying by libraries and educational institutions without payment to authors or publishers of the works. This may be called fair dealing; others might call it theft or welshing or freeloading.

Ideas are cheap, so cheap in fact, they don’t have to be paid for. Why is it acceptable to purchase a book, the price of which includes the writer’s royalty, and not expect to pay for usage because the book has been rendered in digital form? Such usage is a denial of the copyright creators’ ability to earn a living from their intellectual property.

The underlying suggestion is that authors aren’t part of commercial reality; they do it for the love of it, and should pay consumers for the privilege of being exploited.

The kind of copyright collecting regime that operates in Europe acknowledges the relationship between the author and his or her work. This scheme rewards merit in the true spirit of free enterprise.

This fast and furious journey into the digital future may force creators to become Luddites in order to protect their work, ideas and reputations. They may be forced to disseminate their work in the more secure forms that predate the digital age.

Government policy

Dr Kay Daniels is General Manager of the Intellectual Property Branch of the Department of Communications, Information Technology and the Arts. Before joining the public service, she taught history at the University of Tasmania.

This is a very active period of copyright reform. A number of amendments to the Copyright Act 1968 are under way. This year two copyright amendment bills – on decompiling computer software and on sound recordings – have been introduced into Federal Parliament. Two more – on the digital agenda and on moral rights – will be introduced soon.

With this legislation the government is trying to create a balanced, workable, up-to-date regime, one that encourages creators and investors while ensuring that users gain appropriate access. The intention is also to acknowledge the fundamental impact that changes in technology are having on the creation and transmission of copyright material.

In the Digital Agenda Bill the exceptions given to libraries, museums, galleries and educational institutions allow reproduction for purposes such as study and research. Copyright holders argue that there is too much latitude in the proposed law. The libraries have also put their views forcefully. The dominant issue is the need to balance the interests of users on the one hand and creators and investors on the other.

Another issue is the intellectual property of indigenous people: issues of traditional knowledge, community ownership and authenticity arise. Indigenous creators require more effective protection for their work. The government is encouraging the development of protocols and model contracts and a national authenticity label.

To provide an incentive for creativity, the new regime requires mechanisms that distribute payments back to legitimate copyright holders in an efficient, equitable and transparent way. They need to be paid a fair price, not a price that is so high that it stifles the market.

Copyright is not well understood. Lack of awareness leads to copyright infringement and a failure to manage intellectual property effectively. The government is developing guidelines on the use of intellectual property associated with information technology projects to improve Commonwealth management of its intellectual property and, where appropriate, allow its commercialisation by the private sector.

Universities are major creators and users of intellectual property. The government discussion paper, New knowledge, new opportunities, makes it clear that universities will have to become much more efficient managers of intellectual property.

Universities must ask whether it is wise to relinquish without payment control of their intellectual property (as in some journals), and then have to pay a third party for its use.

Issues in the humanities

Professor Tony Coady is the Founding Director, Centre for Philosophy and Public Issues, at the University of Melbourne. He is a popular commentator on social issues.

In the intellectual arena tension exists between the demands of ownership and the values of free communication and the open exchange of ideas.

‘Intellectual property’ is something of a misnomer since both legal and moral traditions hold that ideas cannot be owned. And yet, copyright and patents clearly give some entitlement to what has been intellectually produced. The usual resolution of the puzzle is that the ownership so conferred is to very particular expressions or practical applications of an idea. This is important ethically because any system of property rights which threatens our human potentiality for learning from each other and operating within a tradition of criticism and creativity is dangerous.

It is clear that an awful lot about property rights is social, not ‘natural’. There may nonetheless be intrinsic property rights or important considerations about human beings that back up social property rights.

One of these is the idea that we have a natural right to own our own thoughts. But this idea seems too weak to support the edifice of intellectual property rights, as does the idea of desert, that someone who has put in the effort involved in producing a new idea and its application should be rewarded.

A second notion is that of contract. When I have thought up something, I am entitled to contract for the terms under which it will be revealed. This is inadequate because it begs the question whether the revealing of my idea is something that should be a matter of restrictive contract or not.

Another defence often made for the granting of legal intellectual property rights is that they will act as an incentive for the production of new ideas, inventions and books. But there is not much evidence that this is true. Nonetheless, perhaps a utilitarian justification makes more sense than the alternatives.

One interesting issue about authorship in humanities disciplines is the ownership of course materials. It is increasingly common for universities to assert their rights to such materials, but the moral case for their increasingly expansionist claims is thin. A general feature of all such proposals is a removal of teaching material from the realm of personal authorship and the marketing of it as neutral packaged knowledge.

This is a particularly threatening process in the humanities. The provision of packaged information denies the perspectival reality of authorship and the contested, critical nature of knowledge. The progress of knowledge and its transmission is dialogical and conversational. Hence the personal voice is an essential element. I worry that the commercialisation and commodification of knowledge that is now dominating higher education may eventually destroy it.

Issues in the sciences: scientists’ economic potential

Professor Sue Serjeantson is President-elect of the Federation of Australian Scientific and Technological Societies and a Visiting Fellow at the Australian National University. As the former Director of the Institute of Advanced Studies at the ANU, she was closely involved in the protection and commercialisation of the university’s intellectual property.

The main issue confronting Australian scientists with respect to intellectual property and the law is the collapse of business expenditure on research and development in Australia. This fell 4 per cent last year, following a fall of 7.4 per cent in the previous year.

Many experts believe that the greatest hindrance to commercialisation of research is not the low level of tax concessions but, rather, the capital gains tax regime in Australia. Leaks about the Ralph review of business taxation suggest that recommendations may include a reduction in capital gains tax from the current marginal rate to about 15 per cent. Will a capital gains tax of 15 per cent attract foreign venture capital and increase the rate of commercialisation of intellectual property in Australia? This remains to be tested.

A recent survey of scientists by the Federation of Australian Scientific and Technological Societies identified cultural obstacles to the commercialisation of intellectual property, but many consider these obstacles are of lesser import than current taxation law.

The recent green paper on higher education research and research training, New knowledge, new opportunities, proposed that funds for university research should be diverted through various incentive schemes to support industry-oriented rather than basic research. But the problem must be tackled at the structural level of taxation reform, not at the level of using incentives to distort the academic enterprise.

Issues in the social sciences

Professor Peter Spearritt is Foundation Director of the National Centre for Australian Studies at Monash University in Melbourne. He was an author representative on the Public Lending Right Committee.

No paper on social science is complete without a survey. Please raise your hands.

How many people here own copyright in and have received income from text, music, images or voice recordings? I estimate about 25 per cent.

How many people have signed over copyright to the Crown or, by the nature of their employment, produce works owned by the Crown? 25 per cent.

How many people pay royalties or fees to other copyright holders on a regular basis, for text, videos and the like? 45 per cent.

How many people have knowingly abused or otherwise tried to get around copyright, for scholarly or library purposes of course? 55 per cent.

Copyright affects all of us. When I am choosing photographs to illustrate a book, the copyright fees affect my choice.

As indicated above, minor transgressions are occurring all the time. However, with the advent of the World Wide Web, the scale has reached an all-time high. All sorts of people are downloading text, pictures, music and sounds with abandon, and altering these materials without regard for the creator. A whole generation of web manipulators doesn’t even regard this as sinful.

This extraordinary infringement of copyright is happening at the same time as knowledge, especially in the form of databases, is becoming increasingly expensive. I once bought a few volumes of census results for the equivalent of 25 cents each. Census statistics now cost $40 per run or $4000 for the data on CD-ROM. Census data is something we all have to contribute to.

Because of the policies of some journals, publicly funded authors at universities now have to pay to get access to their own research results. Universities and libraries are trying to enter this commercial world, but are not successfully expanding. They and other public organisations are subsidising the rest.

Issues in the technological sciences

Dr Colin Adam is Deputy Chief Executive of CSIRO, from which position he oversees the organisation’s commercial activity. He is also an adjunct professor in the Faculty of Engineering, Physical Sciences and Architecture at the University of Queensland.

Scientists have to understand the way a deal is constructed. Returns from intellectual property rights are negotiable. A company has to do something to set its value for negotiation: make an investment (on its own, with others or in a pool) and calculate the likely returns on that investment. If you don’t understand the potential use of your intellectual property, you are at a disadvantage to someone who does.

New technologies such as biotechnology may have problems during commercialisation. For example, when Sainsburys supermarkets in Britain placed genetically modified food in its stores, the public did not buy it.

For Australian technology to be sold at a profit, markets will look at a number of factors to determine the value of the company that owns the technology:

• the quality of the board and management
• the cost of capital
• a stock market analysis of future earnings
• brand name and reputation
• market access and potential growth
• the availability of new technology.

The technology (and its associated intellectual property) is at the bottom of the list. The potential earning stream – through the marketing of products and the negotiation of deals – may be independent of the original technology.

Knowledge is becoming the most valuable asset of major corporations. But to cut costs, some corporations are closing their research and development departments. Their technologies will increasingly be sourced from competitors, government research bodies, universities or private consultants.

As a result, the bargaining balance over intellectual property between corporations and research providers seems to be shifting. The companies used to dictate terms; now they need research providers. They are more likely to confine their demands to the real requirements of their competitive position.

Global businesses must face global issues. This means Australia has to match international policies and practices. If you have a choice between filing a patent in the USA, Europe or Australia, you should be aware that US patent protection makes international negotiation easier.

One aspect of globalisation is that CSIRO has become more like a high-technology company than a university. The research of many Australian universities is not yet internationally competitive. We have to ask: Is the Australian community getting a reasonable return on its investment in these universities?