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Published 01 March 2013 12:15, Updated 01 March 2013 16:08
Judge David Harvey presided over the extradition trial of Megaupload founder Kim Dotcom (pictured) before surprising legal circles by excusing himself from proceedings. Photo: Nigel Marple
New Zealand district court judge and technology law expert David Harvey is proposing to turn copyright on its head with a new human rights-based approach at Friday’s Australian Digital Alliance Copyright Forum in Canberra.
Harvey presided over the extradition trial of Megaupload founder Kim Dotcom in New Zealand before surprising the legal world by excusing himself after expressing views on the proposed Trans-Pacific Partnership Agreement at a function.
Negotiations over the agreement centre on free trade but balancing the rights of copyright owners and consumers is also a hot topic, with parties like the United States seeking to strengthen laws and limit exceptions in order help the entertainment industry to combat piracy.
Some have proposed pushing responsibility on to internet service providers for the infringements of users.
Such proposals would dramatically overturn landmark Australian cases such as that involving iiNet, which was found by the High Court not to be liable for the infringements of its users.
Harvey is proposing a radical overhaul of the copyright system in response to the Australian Law Reform Commission’s inquiry into reform. He says the digital paradigm is having a revolutionary impact on law, just as the advent of the printing press radically changed legal thinking and statutory interpretation.
“Copyright claims to be technology neutral,” he says. “But it’s been linked to the development of information technology since its beginning.
“The digital paradigm is undermining the values and principles at the core of traditional copyright thinking. People now have a greater ability to access information and greater ability to copy the content of others.”
He says graduated response regimes only benefit copyright owners, and file-sharing legislation in New Zealand is already out of date.
The first conviction under the New Zealand graduated response system, which gives infringers three warnings before being fined, was made in January.
“It’s just another way of saying that everyone who has a computer or who downloads or has a file locker in the cloud is a pirate,” he says.
“One of the critical parts of the [file-sharing] legislation is a definition of file sharing that ignores technology such as virtual private networks or magnet links.”
He says technological protection measures are being used to “lock up content far beyond the copyright term” and to protect against access, something of an “anomaly in the global world”.
The foundations of copyright should be overhauled and replaced with a rights based approach, he believes.
“Copyright theory needs to recognise and accept that freedom of expression involves not only the imparting of a particular point of view but also the reception of information,” he says. “This should be the starting point to measure the strength and extent of any copyright protection afforded to one who engages in content expression.”
Under Harvey’s proposal, copyright rules that disproportionately limit or interfere with the right to freedom of expression under the International Covenant on Civil and Political Rights (ICCPR) would be invalid.
Any rule must be proportionate and limited “only so far as is reasonable and necessary to fulfil the copyright owners’ interests”, he says.
In other words copyright owners would have to justify their property rights.
“[A] truly balanced approach to information and expression recognises that ideas expressed are building blocks for new ideas.
“Underpinning this must be a recognition on the part of content owners that the properties of new technologies dictate our responses, our behaviours, our values and our ways of thinking. These should not be seen as a threat but an opportunity.
“It cannot be a one-way street with traffic heading only in the direction dictated by content owners.”
But Harvey’s comments have left many in the legal circles scratching their heads, including Gilbert and Tobin partner and chief of its intellectual property team, Michael Williams.
Williams has run numerous precedent-setting cases for rights holders, including representing the recording industry against Kazaa, a file-sharing website found liable of infringement. More recently he represented Roadshow Films against iiNet.
Williams says Harvey appears to be out on his own in expressing a view that copyright infringement could be excused by free speech.
He also accuses Harvey of being “out of step” with his previous judgments in copyright cases.
“No country in the world has a regime where free speech can be used as a defence to infringing or criminal activity,” Williams says.
“Even in the US, where first amendment rights to free speech are as strong as anywhere, attempts to claim online piracy is free speech has universally been rejected.”