[A2k] Taking T.B.M. in vain

Peter Jaszi pjaszi at wcl.american.edu
Tue Feb 18 07:20:12 PST 2014

The Macauly references are interesting.  The most famous passage from
the scholar/author/statesman's 1841 House of Commons speech on term
extension goes like this:

"We have, then, only one resource left. We must betake ourselves to
copyright, be the inconveniences of copyright what they may. Those
inconveniences, in truth, are neither few nor small. Copyright is
monopoly, and produces all the effects which the general voice of
mankind attributes to monopoly. My honorable and learned friend talks
very contemptuously of those who are led away by the theory that
monopoly makes things dear. That monopoly makes things dear is certainly
a theory, as all the great truths which have been established by the
experience of all ages and nations, and which are taken for granted in
all reasonings, may be said to be theories. It is a theory in the same
sense in which it is a theory, that day and night follow each other,
that lead is heavier than water, that bread nourishes, that arsenic
poisons, that alcohol intoxicates. If, as my honorable and learned
friend seems to think, the whole world is in the wrong on this point, if
the real effect of monopoly is to make articles good and cheap, why does
he stop short in his career of change? Why does he limit the operation
of so salutary a principle to sixty years? Why does he consent to
anything short of a perpetuity? He told us that in consenting to
anything short of a perpetuity he was making a compromise between
extreme right and expediency. But if his opinion about monopoly be
correct, extreme right and expediency would coincide. Or rather why
should we not restore the monopoly of the East India trade to the East
India Company? Why should we no revive all those old monopolies which,
in Elizabeth's reign, galled our fathers so severely that, maddened by
intolerable wrong, they opposed to their sovereign a resistance before
which her haughty spirit quailed for the first and for the last time?
Was it the cheapness and excellence of commodities that then so
violently stirred the indignation of the English people? I believe, Sir,
that I may safely take it for granted that the effect of monopoly
generally is to make articles scarce, to make them dear, and to make
them bad. And I may with equal safety challenge my honorable friend to
find out any distinction between copyright and other privileges of the
same kind; any reason why a monopoly of books should produce an effect
directly the reverse of that which was produced by the East India
Companys monopoly of tea, or by Lord Essexs monopoly of sweet wines.
Thus, then, stands the case. It is good that authors should be
remunerated; and the least exceptionable way of remunerating them is by
a monopoly. Yet monopoly is an evil. For the sake of the good we must
submit to the evil but the evil ought not to last a day longer than is
necessary for the purpose of securing the good."

The tone is rather difference from what the Attorney-General suggests.

More striking still is the claim that Macauly (1800-1859) had something
to do with the 1709 Statute of Anne.  


-----Original Message-----
From: A2k [mailto:a2k-bounces at lists.keionline.org] On Behalf Of Manon
Sent: Tuesday, February 18, 2014 9:53 AM
To: a2k discuss list
Subject: [A2k] Et Tu Australia: Attorney-General commits to major
overhaul of the Copyright Act


Attorney-General commits to major overhaul of the Copyright Act
Submitted by Trish on 17 February 2014 Copyright Act needs reform: must
balance benefits for creators against a range of public interests

It has been a big week for Australian Copyright.  On Thursday the
Attorney-General, the Hon George Brandis QC, tabled the long-anticipated
final report from the Australian Law Reform Commission's (ALRC)
Copyright and the Digital Economy inquiry.  This inquiry was charged
with determining if copyright exceptions and limitations were working in
the digital age.
 The conclusion was that reform was needed.  The ALRC recommended:

Replacing most specific copyright exceptions with a broad, flexible
'fair use' exception Retaining and simplifying some specific exceptions,
such as preservation copying and document supply for libraries and
archives, and exceptions for some government and judicial uses.
Reforming the statutory licences for government and education Limiting
remedies for use of orphan works where a reasonable diligent search has
been carried out prior to use Preserving the library exceptions (and the
fall-back recommendation of extended fair dealing) from contracting out.
Recommendations about broadcasting for the government to consider when
setting media and communications policy On Friday the Attorney-General
delivered a crucial speech at the Australian Digital Alliance Forum,
which sets out the Government's priorities and approaches to copyright.
Reflecting on the history and development of copyright, the
Attorney-General referred to Thomas Macaulay:

His central insight is to remind us that copyright is a monopoly - a
necessary monopoly - but a monopoly nonetheless.

Moving to the present, the Attorney-General noted the world had changed
much from the 1800s, we now expect much more than a good supply of
books, and our cultural industries are a central part of our economic
and societal wellbeing.  In this modern world, the Attorney-General
firmly recommitted to preserving fundamental principles of copyright

It is true that we now consume, create and distribute content in ways
that would have been beyond imagining when Macaulay introduced the first
copyright law.  It does not follow, I think, that the principles that
underpin copyright are incapable of adapting.

They have adapted to cinema, radio, television and personal computers,
why not to technologies of which we are still to dream.

However, the Copyright Act has not adapted well to new technologies.
 Noting the many issues facing cultural institutions, consumers,
education and industries the Attorney-General described the Act as:

overly long, unnecessarily complex, often comically outdated and all too
often, in its administration, pointlessly bureaucratic.

The Attorney-General committed to a major overhaul of the Act being
'convinced that we can do much to improve how copyright works in this
country.'  This is a point few would disagree with, many of the over 800
submissions to the ALRC inquiry detailed the many instances where
copyright law either inhibited public interest and innovative uses, or
increased organisations' regulatory uncertainty.  From libraries unable
to make cultural heritage available to the lack of support for cloud
computing, the issues with the current Act and its narrow exceptions are
well documented.
 For the process of reform, the Attorney-General committed to the

First, when this process is finished, and it will be a through and
exhaustive exercise in law reform, the Copyright Act, will be shorter,
simpler and easier to use and understand.

Secondly, the Act will be technology neutral - no more amusing
references to videotapes as we find in current section 110AA.

Thirdly, we will pay careful regard to the broader international legal
and economic context, we all know that Australia's laws cannot exist in
a vacuum, they must operate efficiently within a global copyright
 That is particularly important as the Abbott Government continues, to
number among its signature achievements, the negotiation of free trade
agreements with our major trading partners, which, as you all know,
contain important provisions concerning copyright and other intellectual
property issues.

On the major ALRC recommendation of fair use, the Attorney-General
remains 'to be persuaded that this is the best direction' but
nevertheless he will 'bring an open and inquiring mind to the debate.'
He also noted his concerns about online piracy, and suggested some of
the actions he would consider in response, including ISPs issuing
graduated warnings or taking down sites containing infringeing material.

In closing, in the words of the Attorney-General:

The challenge for us today is how to balance the benefits for creators
against a range of other public interests including the interests of
users, educators and other important public goods... I wish you well in
your deliberations and look forward to constructive engagement with you
as we develop our law reforms in this very important area.

The full text of the Attorney-General's speech can be found here

Manon Ress, Ph.D.
Knowledge Ecology International, KEI
manon.ress at keionline.org, tel.: +1 202 332 2670 www.keionline.org
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