Vol 7 No 1 - Roger Williams University School of Law
Vol 7 No 1 - Roger Williams University School of Law Vol 7 No 1 - Roger Williams University School of Law
talk, communicate or consume information in differently codedspeech, namely Linux. It may be that this communicative activitycan be regulated because it could lead to unlawful activity, butthat is a question for further consideration and it may be morecrucial in other cases. We need to keep in mind that software isnot just code, it is discourse; it is not just a noun, it is also a verb.Software allows us to see and say things in digital space. Itsexpressive or discursive potential is not just in code written asstatic text but in the running code, allowing and facilitatingpeople to move and consume information. Software is designed toprocess information—that is its entire function—so function hereis integrally linked with communication, information andknowledge.In Canada, there has been no success in invalidating theCopyright Act against the freedom of communication in Article 2of the Charter of Rights and Freedoms. It has been suggestedthat in Canada the idea /expression dichotomy is not sufficient toensure free speech, especially in the absence of a broad based fairuse doctrine.170 Canada, like Australia and the UK, has a muchmore limited and specific fair dealing doctrine.171 In Australia,there seems little doubt that the implied freedom of politicalcommunication could be invoked in a challenge to the CopyrightAct in an instance of political discourse. Short of that, free speechconsiderations will need to be advocated through theinterpretation of copyright law. In Grain Pool,172 Judge Kirbyexplained:The protection of intellectual property rights must beafforded in a constitutional setting which upholds othervalues of public good in a representative democracy. Inthe United States the relevant head of constitutionalpower has been viewed as containing in-built limitationsmany of which are derived from the competingconstitutional objective of public access to information. InAustralia, the constitutional setting is different but the170. See Fewer, supra note 19, at 217-19. There are also issues raised by theCanadian notion of state action, which does not easily extend to common/judge madelaw and arguably non-government actors such as copyright owners.171. Copyright Law Reform Committee, supra note 60, at Part 1, Exceptions to theExclusive Rights of Copyright Owners (1998) (Austl.) (suggesting that Australia adopta U.S. styled fair use provision).172. [2000] H.C.A. 14 (Austl.).
existence of competing constitutional objectives, expressand implied, is undoubted. 173The message from this passage is that intellectual propertyrights are subject to constitutional limits; yet, can it be suggestedthat fundamental democratic principles such as public access toinformation might act to influence the ultimate shape of copyrightor information law?There is a deeper question concerning the social, as opposed toeconomic, aspect of innovation in this entire debate. It revolvesaround a fundamental (engineering) principle of diversity inknowledge creation or distributed intelligence that is the hallmarkof a democratic society. The notion of “diversity” stems from thecases of Associated Press v. United States174 and TurnerBroadcasting Systems Inc. v. FCC,175 where the United StatesSupreme Court explained: “The basic tenet of nationalcommunication policy is that the widest possible dissemination ofinformation from diverse and antagonistic sources is essential tothe welfare of the public.”176 This ethic also underpins the FirstAmendment.177 A fundamental engineering principle of socialand cultural communication pathways is that of diversity—monopoly of thought will not assist a pluralistic and tolerantsociety fuelled by distributed intelligence. For now the challengeby the First Amendment to the Copyright Act or the Patent Acthas yet to be fully realised. This is not to say the arguments willnever prosper. The assertion of free and open discursiveId.173. Id. at n.218.174. 326 U.S. 1, 20 (1944).175. 512 U.S. 622, 662-64 (1994).176. Id. at 663.177. See Whitney v. California, 274 U.S. 357, 375 (1927) (Brandeis, J., concurring).Those who won our independence believed that the final end of the State wasto make men free to develop their faculties; and that in its government thedeliberative forces should prevail over the arbitrary. They valued liberty bothas an end and as a means. They believed liberty to be the secret of happinessand courage to be the secret of liberty. They believed that freedom to think asyou will and to speak as you think are means indispensable to the discoveryand spread of political truth; that without free speech and assemblydiscussion would be futile; that with them, discussion affords ordinarilyadequate protection against the dissemination of noxious doctrine; that thegreatest menace to freedom is an inert people; that public discussion is apolitical duty; and that this should be a fundamental principle of theAmerican government.
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talk, communicate or consume information in differently codedspeech, namely Linux. It may be that this communicative activitycan be regulated because it could lead to unlawful activity, butthat is a question for further consideration and it may be morecrucial in other cases. We need to keep in mind that s<strong>of</strong>tware isnot just code, it is discourse; it is not just a noun, it is also a verb.S<strong>of</strong>tware allows us to see and say things in digital space. Itsexpressive or discursive potential is not just in code written asstatic text but in the running code, allowing and facilitatingpeople to move and consume information. S<strong>of</strong>tware is designed toprocess information—that is its entire function—so function hereis integrally linked with communication, information andknowledge.In Canada, there has been no success in invalidating theCopyright Act against the freedom <strong>of</strong> communication in Article 2<strong>of</strong> the Charter <strong>of</strong> Rights and Freedoms. It has been suggestedthat in Canada the idea /expression dichotomy is not sufficient toensure free speech, especially in the absence <strong>of</strong> a broad based fairuse doctrine.170 Canada, like Australia and the UK, has a muchmore limited and specific fair dealing doctrine.171 In Australia,there seems little doubt that the implied freedom <strong>of</strong> politicalcommunication could be invoked in a challenge to the CopyrightAct in an instance <strong>of</strong> political discourse. Short <strong>of</strong> that, free speechconsiderations will need to be advocated through theinterpretation <strong>of</strong> copyright law. In Grain Pool,172 Judge Kirbyexplained:The protection <strong>of</strong> intellectual property rights must beafforded in a constitutional setting which upholds othervalues <strong>of</strong> public good in a representative democracy. Inthe United States the relevant head <strong>of</strong> constitutionalpower has been viewed as containing in-built limitationsmany <strong>of</strong> which are derived from the competingconstitutional objective <strong>of</strong> public access to information. InAustralia, the constitutional setting is different but the170. See Fewer, supra note 19, at 217-19. There are also issues raised by theCanadian notion <strong>of</strong> state action, which does not easily extend to common/judge madelaw and arguably non-government actors such as copyright owners.171. Copyright <strong>Law</strong> Reform Committee, supra note 60, at Part 1, Exceptions to theExclusive Rights <strong>of</strong> Copyright Owners (1998) (Austl.) (suggesting that Australia adopta U.S. styled fair use provision).172. [2000] H.C.A. 14 (Austl.).
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