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This is a paper I gave on a panel at the Sydney Writers’ Festival on 1 June 2007. Also on the panel was Sherman Young from Macquarie University and Michael Fraser, until recently at the Copyright Agency Limited. It was a very interesting discussion and got some really good questions, including whether the papers would be available online. Well, Sherman’s is here and mine is below. I haven’t fully webified it, but let me know if you’re curious about where something came from or have any other comments.

In December last year, the British music industry took out a full-page ad calling for the extension of copyright in sound recordings from 50 years to 95 years. The ad claimed to represent the views of 4500 named musicians. They were mostly older favourites like Sir Cliff Richard, Sir Paul McCartney, and Mick Hucknall from Simply Red. Some of them were so old they were dead, and had been for months or years—like Freddie Garrity of Freddie and the Dreamers, who had passed away in May, and Lonnie Donegan, the King of Skiffle, who died in 2002.

Some people argue that extending the copyright in existing works doesn’t do much for the motivating purpose of intellectual property, which is to encourage people to create new works. Lonnie Donegan isn’t going to record any more songs, no matter how much he makes from Does Your Chewing Gum Lose Its Flavour on the Bed-post Overnight. But even skeptics had to admit that if copyright could inspire dead musicians to take out advertisements, anything was possible. And, of course, a lot of people made jokes about the Grateful Dead.

Mick Hucknall from Simply Red—who is still alive, though not many people know it—wrote his own column arguing that copyright was a proud socialist invention and the stricter it is, the better it promotes the free flow of ideas. Now, I like a paradox as much as anyone. But to me, Mick sounded like another musician at the end of his career trying to back out of the copyright bargain.

Because that’s what copyright is, or what it always was: a bargain. If you look at the first real copyright law, the Statute of Anne of 1709, its aim was “the Encouragement of … useful Books”—books that would benefit society as a whole. It gave authors an exclusive copyright, but only for a short time—between 14 and 28 years—and they had to send their useful books to the nine libraries of record throughout the country so they were available to everyone. The US Constitution makes the same bargain when it tells Congress “To promote the Progress of Science and useful Arts, by securing for limited Times … the exclusive Right to … Writings and Discoveries”.

All of the useful arts, and most of the useful books, are involved in a conversation. They draw on each other, they respond to each other, they combine and transform what came before. They use what came before in ways nobody imagined. And then they become what came before, and they are used and transformed themselves. That’s what culture is, and it’s what progress is.

When we’re starting out we get the better end of the bargain: we’re writing against the background of everything that’s been written, and filmed, and sung, and we want to be able to use everything, to sample everything. And in the past we’ve been able to. Later on, if we’re lucky, people will want to take what we’ve created and use it themselves in ways that surprise us and may not please us. It’s natural to want to stop them, or to demand that they pay us. But we shouldn’t forget the copyright bargain and what it did for us.

Google is scanning the collections of nine libraries, 15 million books in the first ten years. Each book will be included in Google’s index, and can be searched by anyone with an Internet connection—outside China. If the book’s in the public domain, you can read the whole thing. If it’s still under copyright, the copyright-holder can agree to show you a couple of pages or a chapter, or even more. Where there’s no agreement, you’ll only see a couple of sentences.

It’s a magnificent project, and everybody thinks so. It’s the promise of a universal library, a store of the world’s knowledge not seen since Alexandria, if ever. It’s almost the Library of Babel imagined by Borges, which contains not only every book but every possible book. Vastly improved access to so much information will be a tremendous benefit to scholarship and to culture. We’ve all spent too long in libraries, waiting for books to come up from the stacks, scrolling through endless microfilms and not finding what we were looking for. The Google project won’t eliminate these problems, but it will ease them. It will give us much better access to the world’s books, and it will preserve them against time and disaster as the library at Alexandria famously couldn’t.

It will also make money for authors. It’ll make it much easier for readers to find our books. If the book is out of print, like most books are, it can still find a new audience and a new life—even a new print run. The possibilities are exhilarating.

But the Authors Guild and the Association of American Publishers are suing Google for what they call “massive copyright infringement”. Not because they don’t recognise the benefits of the project: they do. They just don’t like the fact that Google is doing it without their permission, and without sharing its ad revenues with them. Even if the Google project does turn out to be good for them, the authors say, it should be their call and on their terms, not Google’s.

Is the project a massive copyright infringement? Well, maybe. A lot of the books are still under copyright, though most of them are out of print. Google is making copies of the books, even if nobody sees the copies. It’ll have to argue that its use of the books is a fair one, legally speaking, but it doesn’t fall neatly into the established categories of fair use, like research, criticism or parody.

This should be a no-brainer, and the fact that it’s not is a pretty good sign that we’ve lost our way. The Google project is entirely consistent with the original copyright bargain. The early laws made authors give their books to libraries, so people could read them. They all agreed that copyright should be limited in time—so that books would return to the public domain after their initial commercial life. And they only wanted to outlaw very specific kinds of copying. They were worried about rogue publishers reprinting entire books—leaving the authors with nothing to sell. They weren’t worried about people telling the same story in a different way, or painting pictures of their favourite scenes, or putting a few lines to music, and they certainly weren’t worried about catalogues or indexes.

But that was a long time ago. Most copyrights now last for 70 years after the author’s death, or 95 years where a company holds the copyright. And they keep being extended—coincidentally, whenever a few valuable works look like losing their protection. Some people suggest that they’ll keep on being extended, and nothing will ever come out of copyright again. Even if that’s too cynical, most works are now protected for a century, which is just about forever, and much longer than we need.

At the same time, copyright is preventing more uses. You can’t quote a line from a song in your book without permission; you certainly can’t use a sample from that song in your own song. You can’t write your own response to a book that’s become part of the culture, as Alice Randall found out when she wrote The Wind Done Gone from the slaves’ point of view, and as Pia Pera did when she wrote Lo’s Story as Lolita. You have to wait until the book is out of copyright, as Jean Rhys did with Jane Eyre for Wide Sargasso Sea, Michael Cunningham did with Mrs Dalloway for The Hours and Geraldine Brooks did with Little Women for March. But if books aren’t going out of copyright any more, there’s a problem. You shouldn’t have to wait for a century. Maybe you shouldn’t have to wait at all.

Copyright is a great, necessary invention, but it needs to know its place. We’re supposed to be promoting progress and culture, not constraining them. Authors should get a temporary monopoly on the sale of exact copies of their work, but people should always be able to sample that work and respond to it. New works that seriously engage other works, or new inventions that use old works in creative ways, should be encouraged, even if they’re derivative, and even if they happen to make copies along the way. The categories of fair use should be greatly expanded—certainly to include the making of an index, like Google’s.

To insist on control over everything that derives in any way from your work is to set yourself against libraries, second-hand bookshops, book-reviewers, bookshelf-makers—and especially other writers. It’s to deny other writers the benefits you took for granted. And it’s to lose sight of the copyright bargain.

These tensions have been with us for centuries, but every new technology brings them into sharper focus. Moveable type made it cheaper to copy someone else’s work than to create your own, and copyright law was invented to deal with that imbalance. Now, in the digital age, it’s getting so cheap to make and distribute a perfect copy that it’s almost costless. It already is for music: you can get a song from the Internet in seconds for nothing. With TV shows and movies it’s being held back by download speeds, but it won’t be for long.

Books are a bit different. The book is a very efficient medium for storing and retrieving knowledge, and it’s been with us for thousands of years. The printed book on paper is extraordinarily efficient, and it’s survived for more than five centuries while punch cards, wax cylinders, 8-track cartridges and floppy discs have come and gone. There has simply been no better way to spread information measured in the tens or hundreds of thousands of words. And books are difficult and expensive to copy: for most people it’s just not worth it.

But this is books on paper. You can copy a digital book no problem—whether it’s an e-book, to be read on your computer screen or a portable gadget, or an audiobook, to be listened to on your stereo or a different portable gadget. Both account for a very small proportion of overall book sales at the moment. But they are growing quickly and will keep growing as the gadgets improve, though perhaps only to a point.

Audiobooks are great when you need your hands or your eyes for something else, but they’re hopeless if you want to find a piece of information. E-books are excellent at that, because you can search them; but if you want to follow a story, they don’t have much over paper books. You can get them right away, and you can carry a lot of them, but that won’t override the preference most people have for a tactile, physical book.

So I think that more and more reference books will become digitised, but narrative books won’t for a good while. Maybe when we’ve got electronic paper that looks and feels like real paper, that folds up and fits in our pockets and connects to the new wireless super-Internet. Or something like that, or something else we can’t think of yet. Maybe it won’t ever happen, but I think that sooner or later a fair proportion of books will be read in digital form, and that means they’ll be able to be copied and distributed for nothing.

To decide how much of a problem that’s going to be, we need to weigh up two things. The first is the sales we lose from people getting free copies instead of paying for an authorised electronic or paper version. The second is the sales we gain from people trying a free copy, liking it, and then buying that book or the next one, recommending it to their friends, coming to see us at festivals and so on.

Some writers have gambled that the benefits of copying will outweigh the costs. As publisher Tim O’Reilly says, for most authors the big problem isn’t piracy but obscurity: most of us would love to be famous enough to be worth pirating. Science fiction writer Cory Doctorow and Stanford law professor Lawrence Lessig have both released their last few books online as well as on paper, and say that their real-world sales have been boosted. Lessig’s Free Culture is the only e-book I’ve read all the way through. It was invaluable for this talk, and I recommend it to all of you.

But it might turn out that the sales you lose through copying outweigh the sales you gain. If so, what’s the answer? Well, you could enforce the law more strictly. But at any moment there are 10 million people sharing files on the Internet; it’s hard to arrest them all, and the high-profile lawsuits in America don’t seem to have had much impact—beyond the grandmothers who have been targeted so far.

You can make it a bit harder to copy stuff, but not much—and then you’re stuck trying to sell a product that’s worse than what people can get for free. A lot of smaller online music stores sell tracks in freely copyable formats, and it now looks like Apple and Amazon are moving that way too.

Wired magazine founder Kevin Kelly thinks that the very idea of paying for a copy is on its way out. In the future books and recorded music will be given away, essentially as advertising, and artists will make all their money from concerts and grants and speaking engagements—things you can’t copy. I hope that’s a long way off. But it might happen.

The Electronic Frontier Foundation has proposed a different answer for music: a kind of collective licensing where file-sharers pay a small amount each month for all the music they can download, and the money gets split among copyright-holders based on popularity. There’s already an outfit in Sweden that offers “file-sharing insurance”, where, if you get sued for file-sharing, the insurer pays the fine. The music industry could collect that money itself and save a bundle on legal fees.

What these ideas do is separate payment, which is good for the artist, from control, which isn’t so good for the culture. They’re not that different from the licensing schemes that APRA and CAL look after already. And as books turn digital, maybe something similar could work. Imagine if your foldable electronic paper gave you access to all the world’s books, and you could sit on the train or the beach and follow the links between them all for a low flat rate. All the books are there, nothing is ever out of print, and everybody still gets paid.

It all sounds a bit communist, but copyright always had that element to it. Not in the way Mick Hucknall thinks, but it’s always been directed at promoting culture and progress—at our collective body of work—rather than individual creators.

Some people are worried that Google’s book-scanning project will escape its boundaries, like genetically modified crops. Digital books will spill out into the wild, and be out of our control forever. I think it could happen. There’s a small chance that hackers will do it. But it might turn out to be authors and publishers who decide that it’s better to have these books available than not, that trying to lock them up is a pretty old-fashioned idea anyway—and who think of new business models that reflect the evolution of books, along with everything else, to the digital age.