This is the text of a presentation delivered by Emeritus Professor Tom Cochrane at Copyright 20/20: ADA Copyright Forum 2019 in Canberra on Friday 22 March 2019.
Before the Beginning (the 80s and early 90s)
Let me start on this reminiscence of ideas, conception, birth and early development of the ADA, by making a very basic, initial remark. All events in human activities, decisions, have their origin in preceding activity and circumstances. Indeed it is impossible to understand ourselves and our individual and collective histories without acknowledging this essential and central fact. Fundamental to many of the deeper debates about what Copyright actually represents, is also a recognition of this fact – that essentially none of us is a sole inventor de novo of the artefact, that we bring into being, none of our “creators” actually operate in a void, at a level of individual instances of solitary creationism, as it were. A major work such as Handel’s Messiah owed its composition not only to the preceding centuries of the craft of music making and musical imagination, but in many cases, to the composer’s own preceding and more fragmented musical structures and melodies, and those of their contemporaries.
So it is really important to understand that the origin of the ADA is firmly rooted in the events of the 1990s, and in particular the way that the net, and the layers of activity built on the net, came to influence everything, including business behaviour and thinking, and subsequent lawmaking. In its early phases, it heralded the rapid development of small, enterprising communities experiencing their first, stimulating taste of completely new ways of rapidly exchanging and disseminating ideas, views, and expression, with excitement and imagination powering along our new internet citizens, who saw themselves at a New Frontier, epitomised perhaps by Grateful Dead musician and mid-west rancher, John Perry Barlow.
But in others, especially those whose business had been the control of content, and the channels for conveying content in traditional ways, it started a panic. And for those for whom the definition of business success was dependent on maintaining content and channel control with the attendant harvesting of benefit, the moment had arrived to act with both force and hyperbole.
But just to backtrack for a minute to the 1980s – this was a decade of many changes – the rise of Reagan and Thatcher, with the counterpoint of the Glasnost and Perestroika of Gorbachev, capped off, by 1989, by the extraordinary events in Europe – the biggest changes since the end of the Second World War and its immediate aftermath. In Australia it was the time of the Hawke/Keating ascendancy, structural reform but also with a counterpoint of new giant corporate power, of Bond, Packer and so on.
Some here may recall that it was also a decade of Summits. One such, in the bicentenary year, was the Australian Libraries Summit. One of its features was a discussion of shared concerns about the way copyright policy was trending. For by this time it had become clear that libraries which had hitherto been regarded as, (and certainly regarded themselves as) the very essence of orderly and lawful conduct in the carrying out of their missions, were under a strange new attack. Launched by the Copyright Agency this attack took the form of lobbying government to repeal the exceptions in the Copyright Act that provided for libraries to conduct certain services on behalf of users as legally recognised exceptions. I refer particularly here to Interlibrary Loans and copying on behalf of remote users, in the context of Distance Education, both of which provisions had developed in the context of Australia’s distinctive characteristics as a sparsely populated country with real limitations in library provision.
The Libraries Summit was supported by a range of organisations including the main peak bodies, the National Library, and the then Australian Council of Libraries and Information Services, (ACLIS) and its concerns ranged across a number of areas as well as Copyright. As the net grew in the next few years, from about 1991 to 93, (remembering also that this is still pre-Web time), both excitement and apprehension grew. By 1994 it had become evident that more concerted action would be needed to defend the public interest in our collecting institutions; that is more than just the occasional conference discussion or meeting agreement. So it was that the Australian Council of Libraries established definite action on copyright, firstly establishing a national cross sectoral body i.e cross sections of kinds of library in the nation – the Australian Libraries Copyright Committee – and secondly and importantly deciding to commit to the employment of a full-time person to pursue legal advocacy and public policy positions and submissions. The initial thinking about this considered a choice between a library professional specialist or a person with legal training (most likely an early year graduate), as best fit for the role – and when we started a young law graduate from the University of Melbourne, it soon became evident that this indeed, would meet the aspiration to develop a more articulate, dedicated and expert voice in the copyright arena.
The First Twinkles (1996–1997)
This initial occupant of the role was Jamie Wodetzki. Now, at this time, 1995–96 onwards, the Director-General of the National Library, Warren Horton, (which is where the copyright advocacy function was housed within the Australian Council of Libraries), was on the board of the International Federation of Library Associations, IFLA. This corresponded with the period in which planning was occurring for a profoundly important set of meetings in Geneva. They were scheduled to occur during 2nd–20th December 1996, and event was titled “The WIPO Diplomatic Conference on Certain Copyright and Neighbouring Rights Questions” or the WIPO Copyright Treaty, for short.
NLA Director-General Warren Horton was, to his great credit, able to have Jamie Wodetzki present as an observer, and as such at least one important link was made, to which I will return shortly.
There is one very important international context for the WIPO meetings. Many leading innovations in the development of the Internet were occurring in the United States, and this included the rapid development of new and successful business models. But the U.S. as we all know here, was also by then, home to a mature practice and doctrine of fair use in the observance of copyright. Its institutions were and are also home to many leading intellectuals, in law schools and elsewhere, who were becoming increasingly engaged in the issues being thrown up by previously unknown ways of communicating content. This legal academic activism and commentary was an interesting counterpoint to the policy directions sought by the official U.S. delegation to the WIPO conference, including USPTO official Bruce Lehman. It was of course in the international strategic interest of the U.S. (as conventionally defined in terms of economic gain), to seek high levels of protection in international trade negotiations for intellectual property, and it has been ever since. It was completely effective in securing, with allied interests in Europe and others, the fundamentals aligned to this world view. By the time this outcome was clear though, it was also true that the copyright debates within the States were very warm indeed, with a threshold event having been the defeat of the Clinton administration’s intent with its 1995 White Paper, the aims of which had even included the idea of legislating that copyright rules of the road needed to be started at kindergarten level.
Spearheading the criticism of that proposal, and with a broader critique generally of the direction of US copyright lawmaking, were several brilliant thinkers and writers, including Pam Samuelson. One of her many concerns as new issues arose, was with the way that business owners would seek user agreement through increasingly artificial and inauthentic devices (such as shrink wrap agreements), and the way that critics of these new developments could be picked off if they were seen to be defending a particular sectional interest only – for example museums, schools, libraries. At the same time it had become evident that some of the critics of the direction being taken, were also Silicon Valley-based industries. Thus, the emergence of a new legal advocacy coalition, the Digital Futures Coalition or DFC, based in Washington DC, seemed to be an interesting development. By 1996, some of its work was being widely reported.
It so happened that I had the opportunity in January 1997 of a brief stop off in San Francisco on the way to something else, to have a brief meeting with Pam Samuelson at Berkley. When I mentioned that I have been working with lobbying and advocacy from a principally libraries perspective, and was interested in broader cross sectoral models, such as the Digital Futures Coalition, she immediately wanted to know if I had met Peter Choy, at that stage a legal counsel working for Sun Microsystems. While still in town I made contact, to discover that he was one of the links made by Jamie Wodetzki only a few weeks before in Geneva, and was only too willing to discuss the idea of a cross sectoral broad-based coalition representing a viewpoint for more balanced copyright law making.
Peter’s own story, was instructive. In the early 90s his company was interested in developing more user friendly user interfaces, or GUIs, Graphical User Interfaces, to be deployed over UNIX operating systems. At a certain point in pursuing this objective, he was charged with the responsibility of requesting agreement for the use of some simple graphical icons (for example the rubbish bin to represent the deletion of files), now being widely deployed as Microsoft and Apple software products grew rapidly. When he wrote requesting permissions, he was astonished at the vehemence of the heated rejection that he received from first one of these companies, and even more flabbergasted when he got the same treatment from the other. So he had come to a dead end in what he thought would be a simple matter. Mentioning this by the way, in the lunchroom one day with a couple of the tech heads in the firm, one of them said – but wait a minute – we developed that icon back in the day at Xerox Park, before certain players had left there to form new companies. So Peter wrote to Xerox, and secured a royalty free, perpetual non-exclusive license for the use of the relevant icons, which he received.
The lesson, as so often with copyright matters was that the central issue was not so much who did the creating, but who in a position of commercial power had the appropriation of it – or as Humpy Dumpty put it more eloquently to Alice in Through the Looking Glass – “The question is – which is to be Master, that’s all”. The firm for which Peter worked became a supporter of the Digital Futures Coalition.
Back in Australia, the idea that an organisation of some similar kind might be developed was discussed with a range of colleagues through 1997 informally, and by 1998 had the support of enough organisations to attend an initial meeting of interested parties in July of that year.
Now by this time the ALCC had employed a new full-time officer, that is, its second, in Annabelle Herd. She was the main organiser in setting up the public discussion which was hosted by the National Library, and which agreed that something organisational should be done to more adequately represent a range of converging viewpoints on balance in law making. By this time, the US had legislated the Digital Millennium Copyright Act, the DMCA, and the process of ratifying the treaties from Geneva included the notion that signatories would legislate their own forms of complying legislation, emulating to a greater or lesser degree the intent of the DMCA. In Australia the government was moving, and the need for a cross sectoral advocacy of balance, was stronger than ever.
So it was agreed, after this meeting of July 98, to proceed with a small steering group that was charged with taking this further. It’s critical to understand that a foundational idea in the establishment of the ADA was that industry, that is organisations with a commercial focus, would be part of it. Not only was this the DFC model, but it was clear that to be successful it would be better if any coalition of interests could readily establish that it was not just a collection of taxpayer funded public institutions. This was a point pursued often by Pam Samuelson and others – take a whole of law view, don’t just go for your own carve outs for the sectoral body you might represent. It is worth noting that the Australian Consumers Association was quite active in the foundational arrangements, although this did not persist past the first couple of years. It is also worth noting that there was at this stage a lot happening not just in terms of government reviews, but also negotiations between content owners and users. One of these that had significance, and that was highlighted at the ADA’s foundational meeting, was the first offer by CAL on pricing for electronically available content provided in reliance on statutory licence arrangements within our universities – it attracted the interest of the Australian Consumers Association for example that on one calculation, that one way the university sector could afford CAL’s initial asking price would be to shut down three or four smaller institutions to meet the first year’s bill.
I should mention that by the end of 1998, an unrelated but necessarily intersecting development had taken place. This was the winding up of the parent organisation for the Australian Libraries Copyright Committee and the now embryonic ADA, (ACLIS). It is not relevant to this talk to go into why that occurred, but it did lead to an urgent requirement to gain cross sectoral agreement for the continuing funding and hosting of the full-time policy and advocacy role, which as the ADA formed, would be essential in the same way that it had been acting on behalf of the library sector only.
To the credit of the various bodies involved, mainly libraries acting in different sectors, agreement was reached very quickly, and the absolutely minimalist infrastructure and office arrangements needed for the role to continue were ensured.
Following a further brief teleconference in December 98 of the steering group, arrangements were made for a public launch early the following year. This occurred in Parliament House on 26 February with speakers including Dennis Pearce, outgoing chair of the Copyright Law Review Committee. Whether by coincidence or not, the Government announced on that very day the release of its Exposure Draft of the Copyright Amendment (Digital Agenda) Bill, that is, Australia’s response to the WIPO Copyright treaty. This was done under the joint auspices of Attorney General Williams and Communications Minister Alston.
It was however to be some months before there was a first meeting of the interim board, chaired by industry-based Steve Heptonstall with the organisational arrangements made by Annabelle Herd, who coincidentally finished up in the role shortly afterwards. This meeting was held on 16 August 1999 and the interim board included education, library, industry, legal, and consumer organisations.
By now the Intellectual Property and Competition Review process had commenced with a small group including Jill McKeough, chaired by Henry Ergas. This Interim Board meeting was in fact interrupted by the requirement that some of its members depart for a meeting with that panel.
But even before this the ADA was making submissions to government. By 19 March 99 it had perfected its introductory explanation of itself thus,
The ADA is a unique new coalition of public and private sector interests formed to promote balanced copyright law and provide an effective voice for a public interest perspective in the copyright debate.
Although it took some months for the Board to be more formally established, that is through being properly incorporated, (and I should in passing acknowledge the initial work of Charles Alexander here), the year 1999 afforded no opportunity to rest. The ADA was involved in submissions to an Enforcement enquiry in that year as well as the Competition Review, and responses to the Australian Government’s Digital Agenda bill. By this time the Copyright Law Review Committee was also considering any changes in the jurisdiction of the Copyright Tribunal, which was a reference that was then followed by its enquiry into the relationship between copyright and contract.
In short, by 1999, the copyright law making arena was a full and crowded one. And it had its sharp and shrill edges. For instance, on the announcement of the exposure draft of the Digital Agenda bill, a press release from content owners was headlined “international opinion deplores digital copyright bill.”
Early Infancy 2000–2001
During the year 2000 much of the time was taken up with continuing submission work and the processes involved in incorporation. These were finalised and the first meeting of the properly constituted body was held in April 2001. There had been a process of confirming its membership, and there were by now, changes in both chair, and executive officer, these roles being now taken up by Christine Page-Hanify, and Nick Smith respectively.
In addition to the policy submissions, the months in 2001 and into 2002 were taken up with organisational matters, including interaction with its two patrons (Sir Anthony Mason, and Mr Neville Roach), Budget and Audit issues, and lobbying at the time of the 2001 Federal Election. At this stage the alliance comprised 22 members of whom five were individuals. There is evidence also from these early minutes, of some internal discussion about what position might be taken on the pursuit of a Fair Use regime for Australia.
By this time, I was able to reflect (thanks to stints on the Copyright Law Review Committee [CLRC] for two references over three years), that
Since its launch … the ADA has established itself as one of the most prominent voices in copyright law reform. It has been particularly successful with regard to the government which respects the ADA’s point of view.
I mention the CLRC because as I came to see, it was a body that was accustomed to receiving highly partisan submissions whenever it opened a question of copyright law up for public response. It expected that. So, I well remember the view of its members and chair in their early appraisal of the ADA contributions i.e essentially similar to a body such as the Law Council, i.e. a respected and dispassionate public interest perspective.
These early years of success and impact are extraordinary to reflect on, especially given the modesty of funding and remuneration involved and the occasional fragility of the organisational arrangements. The ADA could never match the huge amounts expended on professional lobbying and ceaseless visits to Canberra that could be undertaken by powerful media, publisher and owner interests. Despite the observation that the politicians and bureaucrats themselves would grow tired of what might be characterised as the relentless harping which was the tone of much of this lobbying, it nevertheless year after year, has had its effect including I fear, defraying some of the initial aura of respect for its dispassionate public interest stance.
But these matters of perception are not easily managed or controlled, and we will ultimately be judged by the quality of our work, which I think looking back over the last two decades has been distinguished.
Finally, some acknowledgments. Last evening there was a function where Derek Whitehead acknowledged the extraordinary contribution of a number of Board members. I’d like to also acknowledge the work of the chairs of the Board. There have been four, Steve Heptonstall, Christine Page-Hanify, Jamie Wodetzki, (returning for a short time as chair), and Derek Whitehead, who has made a sustained contribution and been in role now for 11 years.
Also without a doubt, the diligence and intelligence of those who have served in the ADA Executive role should be recognised, and applauded in this, its 20th anniversary year and in doing so, I salute in turn, the work of eleven people: Jamie Wodetzki, Annabelle Herd, Katherine Beard, Nick Smith, Miranda Lee, Sarah Waladan, Laura Simes, Matt Dawes, Ellen Broad, Trish Hepworth, and Jessica Coates.
Most of these talented people were in post for an average of two years, and in their individual ways, most have done remarkable things.