[LINK] leaked treaty, no policing role for ISPs in copyright breaches

Steven Clark steven.clark at internode.on.net
Fri Sep 10 12:15:53 EST 2010

  On 9/09/2010 2:30 PM, Roger Clarke wrote:
>  At 12:51 +0930 9/9/10, Steven Clark wrote: [Lots of good stuff, but
>  ...]
> > Copyright is a personal ***property*** right, much like owning a
> > car or a set of keys. ....
>  Copyight-owning corporations have very tried hard to get the 'IP'
>  notion accepted, in order to achieve a false parallel with real
>  estate and chattel laws. (That's the genesis of the abuse of the
>  word 'theft').

A significant problem with the 'theft' of copyright, is that copyright 
itself is intangible - and thus hard to grasp: how can i 'steal' nothing?

What is 'stolen' when a movie is copied? The opportunity to *sell* a 
licence to the movie to you. Again, intangible. People are used to 
property as being substantial - when in fact - property rights are 
*always* intangible. The rights over your car subsist in the 
*relationship* between you and your car at law. Problem is, most people 
(even many lawyers) confuse the *thing* with the rights to the thing.

Possession is a state of fact. But it is also intangible. You don't have 
to be holding your car to possess it. Possession of the configuration of 
electrons that comprise a copy of a movie within a device capable of 
doing so does not mean you can touch the movie, but you can possess it 
at law nonetheless.

The desire to increase the rights and powers of legal ownership is not 
restricted to intellectual property - that has been a game played across 
law for as long there has been law. More of anything for nothing is 
desirable to many. Problem is, it also comes with the burden of 
ownership - protecting and maintaining. And that has costs.

>  Their attempt should always be denied. We should never sucker for
>  the 'property' notion. Copyright is a bundle of specific rights (sui
>  generis), not a property right.

Copyright Act 1968 (Cth)
s196 Assignments and licences in respect of copyright
    (1) Copyright is *personal property* and, subject to this section, is
         transmissible by assignment, by will and by devolution by
         operation of law.

The problem, perhaps, is more that certain corporate entities want 
*others* to carry the burden of enforcing the corporate entities legal 
interests: they've been pretty successful with other responsibilities, 
so why wouldn't they pursue that course with intangible property?

Copyright is a form of property - statutory legal rights that amount to 
intangible property. These can be dealt with like any other property. 
Though unlike physical property, they have a built-in use-by date 
(another thing that corporations want to change).

Underlying the whole regime of intellectual property is a set of 
assumptions - largely economic assumptions - some of which struggle to 
survive close scrutiny. But with so much of 'the economy' (another 
assumption) founded upon intangible property (the 'information society' 
or the 'knowledge age' or whatever the buzz word is today), dismantling 
or shifting intellectual property is not a simple 'revoke the statute' 

> > ...
>  [Lots more good stuff, including on closely-related points.]
>  [Declaration: I support **an appropriate form of** copyright law,
>  which balances the interests of producers, consumers and society as a
>  whole.]

The kicker is in 'appropriate' - everyone has their own idea what that 
is and ought to be :D Legislatures included. The fun, as a lawyer, is 
the game played in the scrum where everyone is trying to get an 
advantage over the ball ...

Steven R Clark, BSc(Hons) LLB/LP(Hons) /Flinders/, MACS, Barrister & 

PhD Scholar
School of Commerce, Division of Business
City West Campus, University of South Australia (UniSA)

Deputy Director, Community Engagement Board (CEB)
Chair, Economic, Legal and Social Issues Committee (ELSIC)
Australian Computer Society (ACS)

*Disclaimer:* This is email is not legal advice. Comments and statements 
above are based on my understanding of the issues at hand, and my 
attempts to understand them. They are intended to add to, and elicit 
discussion. Unless explicitly stated otherwise, opinions and statements 
are mine, not those of UniSA or the ACS.

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