Whose conflict? Copyright, creators and cultural institutions

Copyright can easily be seen through a lens of conflict. When considering histories of copyright legislation, observations such as that by Eva Hemmungs Wirten ring true: polarised arguments propel the copyright wars. They are wars of 'sound and fury' in which analytical reviews of policy options may carry very little weight in law reform. Academic analyses set out varied and often nuanced positions on copyright; some have highlighted concerns about copyright owners controlling access to material through digital communications, others have doubted that digital developments have such significance, holding to a different view of copyright's promotion of public interests. The future, present and history of copyright are highly political matters. As far as subtle analysis exists in the academic literature, it is less evident within law reform. There, claims can be made in blunter, more clearly strategic, terms. Metaphors, especially related to property and piracy, are routinely deployed in attempts to generate politically persuasive claims for reform. As Matthew Rimmer has recounted, the conflict extends to public demonstrations such as those over MGM Studios Inc v Grokster Ltd: One could well see how debates might 'degenerate into name-calling' or form 'hostile camps'. This article explores one instance of disagreement about copyright, while attempting to avoid that fate. In Part II, it analyses the views of cultural institutions and creators as seen in Australian law reform. In Part III it compares those positions with fieldwork into the views of copyright held within cultural institutions and creative sectors. The research suggests that some copyright creators understand their interests differently from those generally seen in law reform debates. They appear to support some uses by public cultural or collecting institutions---archives, galleries, libraries and museums---that go beyond the limitations and exceptions of existing copyright law. Although that claim should not be especially surprising, it is to a large degree absent from existing law reform. While not all creators hold this view of cultural institutions, some clearly do. As explored in Part IV, this article suggests there would be value in mechanisms to facilitate greater use of copyright material by cultural institutions. While options could include further law reform and the continued development of voluntary collective licensing, options also include direct agreement with creators, at least for institutions' future collection activities.