Introduction
Digital technologies are reshaping the way in which information and creative content is created, transmitted, and consumed. Incidentally, they are posing problems and raising questions with regard to an intellectual property rights systems (copyright) that was developed to deal with very different media.
In July 2001, the Ministry of Economic Development of New Zealand started to address some of these issues and concerns by releasing a discussion paper entitled Digital Technology and the Copyright Act 1994. In October of that year, I responded to the discussion paper, stressing my concerns over several recent trends. The first was based on the rise of digital technology, which is in the process of transforming the fundamental processes of information creation, diffusion and utilization. I argued that this transformation is fundamentally at odds with a current copyright metaphor based on the concept of restricting the making of copies, and that it would be worthwhile to consider a new metaphor for intellectual property rights, perhaps focusing on a metaphor of controlling the conditions of distribution (i.e., control over communication rather than control over copying).
A related trend is the direction that copyright policy has tended to take in response to the changes engendered by digital technology. Copyright policy has tended to react to digital technology by attempting to create enforcement mechanisms that force new technology and uses to fit into older models. One troubling aspect of that trend is the increased emphasis on criminalizing the act of intellectual property piracy, but the potential for it (by seeking to place limits on technology and knowledge that might be used to make unlicensed copies). I find that this is a troubling trend, one that seems to shift from criminalizing an illegal act to potentially criminalizing intent, or even potential, a direction of policy that could have serious, perhaps even devastating, economic and social consequences.
The third major trend was the tendency of recent copyright policy changes to focus on maximizing the potential for commercial exploitation, a shifting of rights from producers and consumers to distributors, and its attendant tendency to ignore other sources of value that comes from the creation, dissemination, and utilization of information, cultural and creative activity, and knowledge. It is vital to the long term interests of society to maintain a proper balance of interests, and in particular, to promote a system of intellectual property rights that recognizes and encourages the production, distribution, and utilization of a wide range of intellectual property, especially creative works and information goods that may not have high commercial value, but make significant scientific, cultural, or social contributions.
With the release of the Digital Technology and the Copyright Act 1994 Position Paper ("position paper"), it seems that the Ministry has taken a positive step in addressing those concerns. I particularly applaud the Ministry for its copyright policy framework; in particular its key guiding principle that goal of intellectual property policy should be the enhancement of the public interest (paragraph 24) through a balancing of creator, distribution, and user interests (paragraph 27). Within that fundamental framework, I feel that the Ministry has also taken a positive approach in trying to achieve a degree of technological neutrality (paragraph 31). As digital technology continues to develop and diffuse, it is certain that new forms of copying, communication, and content will continue to develop, and it will be important to have an intellectual property policy that can be applied to new technologies as they develop.
There is also language in the position paper suggesting that policy should seek to also be impact-neutral. I would urge the Ministry that while that may serve as a starting point, that it would serve the greater social and economic interests of New Zealand to consider whether or not, in some areas, a rebalancing may need to be achieved to correct recent trends, and whether or not particular some particular forms of content or communication may deserve preferential treatment in order to promote socially (rather than commercially) valuable creation, diffusion, and/or utilization (in particular education uses and traditional cultural expressions).
Finally, I recognize that in both my earlier comments and in the remarks that follow, I argue for a more radical reconceptualization of intellectual property rights than may be politically practical. I feel that it is important to make that argument, and I applaud the Ministry for being willing to consider them, and if not adopt them wholeheartedly, to at least to have incorporated the underlying concerns into some of their deliberations and positions. I will continue to make a case for a more radical reconceptualization in my comments on the proposed positions, but I will also attempt to comment on them from a more practical level.
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