Author:	Grant Jones BCom, LLB Solicitor, Blake Dawson Waldron Solicitors
Subjects:	Computers Law and Legislation (Other articles) Intellectual property (Other articles) Internet computer network law and legislation (Other articles)
Issue:	Volume 8, Number 1 (March 2001)
Category:	Refereed Articles

Contents:

• Introduction
• A Conceptual Assault on the legitimacy of IP in Cyberspace
• Information, IP and meta sites
• An Empty Rhetoric? The Pretensions of IP to Consumer Welfare
• Against the Commons - IP and Economic Efficiency
• Against the Commons - IP and the Lockean Labour Theory
• Tentative Recommendations: Access to IP
• Conclusion
• Notes

What's important - increasingly important [in the Information Economy] - is the process by which you figure out what to look at. This is the beginning of the real and true economics of information - not who owns the books, who prints the books, who has the holdings. The crux today is access, not holdings. And not even access itself but the signposts that tell you what to access - what to pay attention to. In the Information Economy, everything is plentiful - except attention.[1]

Introduction

1. Ever since the emergence of the World Wide Web into mainstream social use, communitarians and social libertarians have touted it as a medium capable of enlivening social discourse and dialogue through its technology of instantaneous communication. As Phan states,

   This vast network transforms the way people interact with information by creating the possibility of ongoing, instantaneous, reflexive dialogue that was heretofore technologically impossible. The distribution of knowledge and learning is radically transformed by the Internet, partly through the ease of access...and the ability to link previously disparate pieces of information and thus create a new understanding of the way knowledge is formed.[2]

2. It has further been commented that the incumbent ethos of the Internet is post modern as it seeks to replace the modern concept of fixed meaning in text with notions that "meaning" from a work is in constant evolution via interactivity of the reader with the text.[4] This "ethos" is naturally dependent on an uninhibited access to content. It is as this point then, that rhetoric collides with reality with the entry of intellectual property ("IP") into the debate.

3. Intellectual property is founded on notions of a fixed text and a fixed authorial meaning encapsulated within the expression of a work over which the relevant author has some measure of exclusory control.[5] As such it is removed from the post modern ideal that purportedly forms the ethic of Cyberspace. Indeed, law makers both at legislative and judicial level have seen fit to extend existing laws of IP into Cyberspace with variation catering only to the physical rather than sociological differences of the medium.[6] Inevitably, therefore, conflicts have arisen from the application of dated jurisprudence to a new medium that assumedly has a diametrically opposed sociology. For purposes of example, this paper has focused on the existence of meta-sites as one of these areas of conflict.[7]

4. Meta sites provide a service aligned with the post-modern, access related sentiment of Cyberspace. They compile information on related subjects from a host of different sites in a manner that makes otherwise fragmented content easy to access. Without such organisational tools like meta sites, the Internet would struggle to be a medium of expanded social discourse. As Nathenson states,

   The Internet has often been characterised as a huge library. Although appealing, this comparison is flawed. If the Internet is a library, then it is one with all the books scattered on the floor. Unbridled chaos could render the World Wide Web useless as a form of discourse unless we can reasonably rely on our retrieval and filtering tools.[8]

5. As the favoured method of content compilation used by meta sites usually takes the form of either a wholesale copying of portions of content or framing through an IMG link, meta sites inevitably raise the hackles of copyright infringement[9] as it has in the currently pending matter between popular Internet auction site eBay and the auction information meta site Bidders Edge.[10]

6. What has been interesting to note from inspection of the various legal barbs that eBay and Bidders Edge have traded, are the foundations on which eBay has justified its position that IP should be protected in Cyberspace. The principal argument that eBay has raised is that the preservation of IP in Cyberspace operates in the name of consumer/user welfare[11] an argument that is interesting given the fact that both the post-modern Cyberspace ethic and Bidders Edge as the proxy representative of that ethic have argued that it is access to information rather than exclusion that is in the interests of Cyber-consumers/users. As James Carney, CEO of Bidders Edge, stated: "The long term implications of eBay's actions affect the entire industry. If eBay is successful, the value of the Web as an easily accessible and useful information source for consumers will be forever changed."[12]

7. This paper seeks to support the continued existence and operation of meta sites such as Bidders Edge. As such, the methodology used in this paper will be one that seeks to erode the cogency of the conceptual bases upon which IP claims to have a legitimate application to Cyberspace, one of those bases being IP's claim to be consistent with consumer welfare.

8. Note that as the author is arguing in support of the position that access to information (including information unrelated to the correction of information asymmetry's in transactions) operates in consumers' welfare, this paper is taking an expansive view of the term "consumer". For the purposes of analysis, the author has adopted the concept of the consumer as espoused by Ralph Nader, where the interests of an individual as a citizen are included within the term "consumer interest."[13] As such, "consumer welfare" is not a term, for the purposes of this essay, that is limited to narrow economic concepts such as consumer sovereignty and control of the production process.

9. This essay is structured into two main parts. The first part contains the actual conceptual attack on IP's claims to legitimate purchase in Cyberspace. Selected avenues of analysis include the genuity of IP's claim that it maintains a concern with consumer welfare in Cyberspace, the arguments of IP by which it seeks to refute a philosophy that regards the products of intellectual creation as items the subject of a "commons" ownership, and also an exploration of the nature of information and its relationship with IP as a channel to justify the exemption of meta sites from claims of copyright infringement.

10. The second part of the paper, noting the irreversible intent of law makers to apply existing legal instruments to the Internet, attempts to construct a method of achieving access to protected content. The administrative framework that this essay will suggest is that of Part IIIA of the Trade Practices Act 1974 pertaining to Access to Services ("Access"). This paper will also suggest, as part of the substantive organs within that framework, that fair dealing doctrine and precedent as developed under the Copyright Act 1968 be included as an interpretive tool to be considered by regulators in their application of Part IIIA access to the context of IP.

    A Conceptual Assault on the legitimacy of IP in Cyberspace

    Information, IP and meta sites

11. The term "information" is one that has become generic in describing all manner of content, whether factual, original, or artistic. It has become a misnomer that belies the incorporation of the verb "inform" within the term.[14] Content only becomes "information" when it conveys a message to the subject upon whom it is conferred and provides a conduit from a given level of ignorance to a lesser level of ignorance.[15] As Bateson states, "Information is a difference which makes a difference."[16] Barlow further states as follows,

12. Even where it has been encapsulated in some static form like a book or a hard disk, information is still something that happens to you as you mentally decompress it from its storage code. But whether it is running at gigabits per second or words per minute, the actual decoding is a process that must be performed by and upon a mind.[17]

13. Content which is divorced from an interpretive context that will attribute meaning to its recipient is known as data[18] and, as it is of little value by itself without an interpretive explanation from its creator, it cannot be considered a discrete commodity or as the subject of exchange. Mandeville terms data as "uncodified information" and states: "Highly uncodified information is not a commodity; it is so intangible that transaction costs will be too high to facilitate convenient exchange via the market mechanism." [19]

14. It is at this point where comparative chords sound with the language of copyright, as copyright aims to create property rights in works so as to make them discrete units of exchange.[20] Furthermore, copyright will only confer protection on "information", that content that is sufficiently developed so as to be understood by a consumer without separate explanation from the creator. In Hollinrake v Truswell, Davey LJ stated as follows,

    ...a literary work is intended to afford information and instruction...The [sleeve chart] before us gives no information or instruction. It does not add to the stock of human knowledge, and is not designed to give, any instruction by way of description or otherwise.[21]

15. This rationale extends from the well known maxim that "copyright does not protect ideas, only expression." [22] "Ideas" only have internal meaning to an author, and therefore, mean little by themselves to an unrelated party without the interpretive shell of an expression. Ideas may be conceived as the equivalent of data, as "data becomes information only when an individual...attributes meaning to [it]."[23]

16. Under conventional copyright analysis, the requirement that a work must attribute sufficient interpretive meaning to the core data/ideas of the author in order to warrant protection is termed as the requirement of "originality or creativity". Abstracting banal requirements of "qualified person", "physical publication" and "fixed form"[24] "originality or creativity" is the only remaining tendon between an unprotected idea and a protected expression. Even by simple deduction, therefore, it must be that element of the work that attributes a contextual meaning to the ideas of the author. This position is supported by Ginsberg, who states as follows,

    ...original authorship only describes those works manifesting a subjective authorial presence. The prevalent contemporary understanding identifies authorial subjectivity as the hallmark of original works of authorship...original works [must] at least, embody their creators subjective choices in the selection and arrangement of material.[25]

17. Of course, it could be expected that copyright owners in Cyberspace would invoke this rationale of copyright to their favour in regards to meta sites, as they would inevitably argue that their works, prior to compilation and organisation by the defendant meta site, possessed the requisite "subjective authorial presence" that conferred the status of "information" upon their content. The question is, therefore, whether Cyberspace has any qualities that alter the nature of "information" to the effect that, for content to impart a "message" value to users, more than just creativity/authorial presence is required.

18. Cyberspace is a data dense environment[26] one criticised as being characterised by "data overload."[27] As Shenk comments, "..the glut of information no longer adds to our quality of life, but instead begins to cultivate stress, confusion and even ignorance."[28]

19. This data explosion has resulted from a number of things, but largely responsible is the almost complete removal of transaction costs of publication for online content and also the latent lack of editorial control prior to publication of content into Cyberspace.[29] The inevitable consequence of this data explosion is, however, the fact that consumers, encumbered by high levels of "white noise", are finding the search for information increasingly more costly and difficult. Indeed, the "..search for knowledge or, at least, the search for a meaningful dialectic [has] drowned under a deluge of information."[30]

20. It is typical of content creators in Cyberspace to flavour their content with hyperbole and exaggeration in order to extract their works from the homogeneity of similar works. This forced sales element that is infused into the content dulls its otherwise informational worth to the ultimate consumer. Gowder states that,

    ...information providers vying for the recipients' attention have an incentive to increase their volume. An information provider wishing to have his communication noticed will use more dramatic language, leading to hyperbole. It will be more prone to exaggeration and sensationalism. Of course, this creates a collective action problem - everyone individually has an incentive to increase the volume and quantity, while all would gain from an overall reduction. The result is a vicious cycle of increasing numbers of increasingly "loud" communiques.[31]

21. The addition of hyperbole to an existing work, ironically, reflects a desire to send a signal of quality or worth to potential consumers. Certainly, in the environs of Cyberspace that is filled with "random, unexamined, raw data"[32] such signals are necessary as it is only "works of quality" that maintain currency for consumers informational needs. This is recognised by Dyson as follows: "[In Cyberspace] Much value will be in the certification of...reliability. Brand name, identity, and other marks of value will be important...Customers will pay for a stream of information from a trusted source.[33]

22. Thus, it appears that for a work to be regarded by consumers as of "informational worth" in Cyberspace, it will have to come attached to a signal of quality so as to stand removed from the deluge of content "white noise"[34] that otherwise exists. Ironic, indeed, has been the suggestion that, in order to ensure that quality information is received, consumers should revert back to old sources of information such as books etc that have been filtered through editorial controls of publishers. Gowder states that: "Information consumers must filter information themselves. This is mainly accomplished by favouring information not tied to haste - books - over information, such as television and the Internet."[35]

23. This suggestion may yet be hasty given that services such as meta sites, in the compilation and comparison of information, provide a service reminiscent of editorial control[36] or at least, electronic librarians[37] and therefore may provide the quality signal needed for content published on their respective sites. Meta sites provide what Michael Heim terms as "formal clues" to consumers, in that they provide "validation and authentication" of the quality of published works. [38] Pursuant to this, there is at least an academic argument that queries whether works that are uncompiled and unfiltered by editorial services such as meta sites are able to claim an "informational worth." At very least, such an argument must compel both law-makers and IP owners to re-evaluate infringement claims against meta sites given their value both to users and to content creators. Sterling states as follows,

    What is important - increasingly important [in the Information Economy] - is the process by which you figure out to look at. This is the beginning of the real and true economics of information - not who owns the books...who has the holdings. The crux today is access, not holdings. And not even access itself but the signposts that tell you what to access - what to pay attention to. In the Information Economy, everything is plentiful - except attention.[39]

24. In summary, noting that copyright seeks to protect only works that constitute "information", it can be seen that in the data dense ether of Cyberspace there are necessarily more robust requirements for a work to be considered as "information". In addition to the element of creativity/authorial presence required for works in real space, the lack of editorial and filtering mechanisms on the Internet generate a user demand for a quality signal to be attached to content as requisite for a work to be considered of informative value. As such, there is some conceptual doubt as to whether a meta site may be the target of an infringement claim at all, given that content on the Net may be considered as "information" and therefore entitled to protection only once it has been given a quality signal by a service providing a quasi-editorial function.

    An Empty Rhetoric? The Pretensions of IP to Consumer Welfare

25. eBay claimed that consumer welfare would suffer if the conduct of Bidder's Edge was held not to be a breach of copyright. Implied in this statement, of course , is a warranty that IP has a genuine concern with consumer welfare. Certainly, traditional IP theory has always claimed such, as is evident in a paper by the then known Trade Practices Commission that set out objectives of intellectual property, where relevant, as follows: "To provide an incentive to persons to engage in inventive activities from which society may benefit and to commercialise the results of those activities in trade".[40] Even at first glance it is evident that the deference that intellectual property pays to social/consumer welfare is ancillary to the propertisation of intellectual products. [41] Curiously, however, the objective of IP as stated above appears to define the notion of consumer welfare as a positive function of the quantity of innovation and production, and not as a matter of access to existing works. This enumeration of consumer welfare immediately appears suspect, as increased output and an increased demand for output are goals more in the fashion of corporate interest as opposed to consumer interest.[42] Certainly, Bourgoinie claims that notions directed towards increasing the rate and quantum of production would not necessarily be consistent with consumer welfare but may merely reflect a subtle form of corporate control exercised through the manipulation of consumer preferences and demand. This is what he regards as the "social norm of consumption", a concept that he explains as follows,

    This norm signifies the development of a system of mass consumption based on the production and promotion of a growing number of goods and activities rather than on the expression of the sovereign and individual wish of the consumer.[43]

26. The fact that the "social norm of consumption" may be a reflection of corporate control over consumer preferences is a criticism elaborated by Galbraith in The New Industrial State[44] where corporate interests, who are notably the largest group of IP rights holders[45] manage consumer demand so as to eliminate market uncertainty. Certainly, a prominent feature of The Affluent Society[46] was comment that corporate interest groups manufacture and create consumer wants so as to increase the "need" for production.[47] The end result, Galbraith states, is that there has been: ...a popular acceptance of the proposition that the production and consumption of goods, notably those provided by the planning system, are coordinate with happiness and virtuous behaviour.[48]

27. Therefore, the very fact that IP claims consumer welfare to be a concept commensurate with an increased quantum of intellectual production and remains silent as to consumer access to existing work casts a pallor over any claim that IP has to be concerned with consumer welfare. This initial pallor is amplified when it is noted, as in the previous section, that it is the enormous quantity of content available on the Internet that threatens to subsume social discourse and diminish utility derived from the Net.[49]

28. In addition to the suspect manner in which consumer welfare has been framed by IP policy, notice must be taken as to the identity of IP rights holders. IP rights are predominantly held by corporate interests, a collective group whose interests can be thought to be intuitively counter to those of consumers[50] Certainly Offe, notionally identifying the collective corporate interest as "manufacturers", comments that, within the frame of consumer policy, the consumer collective and the collective of manufacturers are engaged within a strategic struggle for dominance.[51]

29. As such, any casual concern that IP claims to hold with consumer welfare must be viewed within this competitive relationship. Such a perspective duly realises the fact that in regards to the concerns of manufacturers, consumer welfare would never occupy a place of primacy as against goals of wealth generation. As Offe notes,

    To the extent that they are engaged in the private sector, these actors [manufacturers] endeavour to influence the welfare of consumers in manifold ways... However, their economic interest in profits and profitability is a primary goal, and they therefore engage in consumer policy only to the extent that the (positive or negative) influencing of consumer welfare serves this goal of profitability...manufacturers or suppliers of goods and services are in general, therefore, interested in the welfare of the consumer only in an indirect and secondary way.[52]

30. This disparity of interest between consumers and IP rights holders is even broadened when one applies a historical analysis to the terrain of Cyberspace. The development of the "Information Superhighway" was funded, after all, not by government but by private enterprise[53] ,a factor which by its very nature retarded the growth of the World Wide Web (WWW) as a populist, dialogue enriching medium.[54] Drahos states that,

    Despite the many positive advantages of the information society, it turned out not to be like the democratic dream that had been used to sell it...The astonishing growth of the Internet had occurred because institutions rather than individual users had paid the cost...Internet had been very much about participation and critical exchange. The superhighway went a different way. The cost of building it had been met by private enterprise.[55]

31. The fact that private enterprise funded the development of the WWW meant that effectively, national governments had to cede policy control over the medium in order to attract private investment for its development. One of the conditions for investment into creating the WWW was the strengthening of IP protection for content on the Net.[56] Consequently, it is this dominance of private enterprise over Cyberspace within which the pro consumer welfare claim of IP must be read. At least within real space, IP policy, although subject to criticism regarding the favouritism of corporate interest, could still be expected to maintain a residual concern with the genuine interests of consumers.[57] In Cyberspace, however, the "state" has in effect been superseded by private enterprise, and therefore, consumer welfare would be even more forfeit to corporate interests than it is in real space. Drahos states as follows,

    In my imagined evolution of the superhighway and information society the state cedes authority over the control of information to the market and private players. The capacity of the state in the information age to protect its citizens, as in the case of the feudal age, becomes severely limited. States continually complain of a loss of sovereignty but seem powerless to prevent it.[58]

32. Therefore it is appropriate that IP's deference to consumer welfare should be suspiciously viewed, not only by virtue of the fact that such rights are in the hands of predominantly private enterprise whose interests are in contradistinction to those of consumers, but also that, in Cyberspace, such corporate interests are not subject to the same measure of State policy constraints as they are supposedly subject to in real space. It is a valid criticism that on the Internet, the principal decision makers and policy pressure groups will be corporate interest, while "other players like the consumer movement...while influential opinion makers, will not have a voice."[59]

    Against the Commons - IP and Economic Efficiency

33. As IP effectively confers an exclusionary power to prevent others from accessing a work, it depends on the construction of credible arguments as to why the products of intellectual endeavour should be removed from the common pool of resources available to all mankind. One such argument is that clearly defined property rights are the only means of preserving an incentive for creators to engage in innovative endeavours. [60]

34. Abstracting the reflex criticism that, in regards to copyright, intellectual matter was still being abundantly produced prior to the enactment of the Act of Anne in 1709[61] this rationale of IP is clumsily framed in terms of a solution to the economic problems of "free riding" and "public goods"[62] as it is argued that if there was no copyright, there would be no incentive to create as unrelated parties could not be prevented from capturing surplus due to the author.[63]

35. Property rights are designed to correct externalities[64] and consequent market failure that results from the public good nature of intellectual works. [65] As Drahos states: "Property rights may internalise externalities by bringing the effect of the decision to bear on all of the interacting persons."[66]

36. The externality that is supposedly produced by the lack of property rights in information is a lack of incentive to produce further works because of an inability of the producer to reap the marginal value of his investment in creating the relevant work.[67]

37. This orthodoxy of intellectual property philosophy can be challenged by several criticisms. For example, Demsetz's original analysis of public goods premised the creation of property rights upon an assumption that if such rights were not conferred, the public good would eventually cease to exist. [68] The above sections of this paper demonstrated, however, that even in an environment where physical prevention of copying is almost impossible, information is far from being a finite resource in Cyberspace. Furthermore, use of information does not erode the resource as usage of a physical good may.[69] Rather, information may exhibit increasing returns to use as opposed to the diminishing returns present in the public good analysis of Demsetz.[70] Therefore, a public good analysis may be subject to criticism that is of little relevance when applied to information. As Dawson states,

    Traditional analysis suggests open entry to the physical commons results in its degradation as a resource, that is, all the fish are caught. In contrast, open entry to the intellectual commons cannot degrade the intellectual commons. A piece of information in the commons may be used over and over again without being depleted...Because the intellectual commons is nondepletable, much of the economic literature examining the tragedy of the physical commons would appear to be of little application.[71]

38. Another premise upon which public good analysis to information relies is an assumption that an author is unable to capture pecuniary return from his work in the absence of property rights. This premise loses some relevance in Cyberspace upon an examination of a business strategy gaining purchase on the Internet: that of giving away IP protected content free in order to generate a demand for ancillary products and services over which the creator has more pecuniary control.[72] Such a strategy pays deference to the difficulty of preventing and monitoring copying of content in Cyberspace.[73] Under this strategy, a contemporary example being that of "shareware"[74] creators would not assert copyright in any content that they produce on the Net and would instead concentrate on increasing user exposure to the relevant work in order to generate a derived demand for their services in real space. The marginal value of the investment in the original free content is sought from the creation of a commercial relationship with the user for ancillary services as opposed to a static sale of the original content.[75]

39. The effect of this strategy in aggregate terms is that in Cyberspace the supply elasticity of information with respect to the scope of copyright protection is capable of being very small, thus undermining an important condition for the application of a public good analysis with respect to the Internet and information.[76]

40. A further annexed rationale to applying public good analysis to IP is an assumption that the grant of property rights would yield an allocatively efficient distribution of the relevant works[77] as the ownership of the good would be transferred via private transaction to the party with the highest willingness to pay ("WTP")[78] This claim as to economic efficiency would attach to IP's overall claim to be in consumers' interest as economic efficiency is a noted sub-factor considered within general notions of consumer welfare. [79]

41. However , this essentially Coasian[80] conclusion is also one that finds genesis more in a real property analogue as opposed to one concerning information. An allocatively efficient distribution of "property" will only occur where negotiation between parties is costless.[81] Abstracting physical costs of actual negotiation, a component of this requirement is the possession of sufficient information by both sides as to be able to arrive at a pareto optimal solution. If the subject of exchange is the copyright in an actual information product, this presents a problem for the purchaser as the information required to correct asymmetry in bargaining position is exclusively held by the seller. Certainly there is no incentive for the seller to yield this advantage, particularly as the source of bargaining information is also the subject of exchange.[82] Information, unlike a physical object like a house, cannot be viewed and assessed informatively prior to bargaining.

42. As such, where information is protected by IP rights, an economically efficient outcome cannot result from a transaction pertaining to that information good.[83] This situation is known as "Arrows Information Paradox", a concept that is explained as follows,

    ...there is a fundamental paradox in the determination of demand for information; its value for the purchaser is not known until he has the information; but then he has in effect acquired it without cost. Of course, if the seller can retain property rights in the use of information, there would be no problem, but given complete appropriability, the potential buyer will base his decision to purchase on less than optimal criteria. He may act, for example, on the average value of information in that class as revealed by past experiences. If any particular item of information has differing values for economic agents, this procedure will lead to both a non-optimal purchase of information at any given price and also to a non optimal allocation of the information purchased.[84]

    As such, ironically, the only "efficient" distribution of protected information would be that where information is distributed free of cost.[85]

43. The claim of IP therefore, to embrace consumer welfare through the encouragement of innovation is fatally flawed. Abstracted from the criticism that information does not even come within the public good analysis upon which the imposition of IP rights depends, once information has been made a unit of exchange, it can be seen that inherent information asymmetry's will make an efficient disposal of such goods impossible. The reduction in allocative efficiency caused by a "blind" exchange will act as a countervailing consideration in any measurement of consumer welfare claimed as resultant from the conferral of the IP right.

44. As a further aside, it can also be criticised that IP rights, in erecting artificial barriers around the products of innovation[86] resides within a misbegotten and short run view as to the nature of innovation. Innovation is predicated upon information flows and an evolutionary development of previously existing ideas and theories. As Mandeville states,

    ...innovation is a broadly informational process of which the encapsulation of information in machinery, or the production of information via R & D are only parts. The innovation process needs to be viewed as a process of information flow as well as information creation...innovation becomes a collective social learning, evolutionary process in contradistinction to a one-off technical process.[87]

45. As such, the concept of innovation sits uneasily within a framework of intellectual property[88] Intellectual property is a constraint on the consumption of information which may lead to the retardation in both the quality and quantity of innovation in successive periods.[89] As Hettinger states: "Restrictions on the free flow and use of ideas not only stifle individual growth, but impede the advancement of technological innovation and human knowledge generally."[90]

46. The employment of intellectual property rights as a means to encourage innovation may inevitably add an element of finality to the production of innovative products and works. As such, even assuming that the encouragement of innovation may be a factor within consumer welfare, the use of IP rights is neither an efficient nor unitary means of achieving this result.[91] In short, IP's flawed claim to encourage innovation is an unsatisfactory means to qualify the imposition of rights in the name of consumer welfare.

    Against the Commons - IP and the Lockean Labour Theory

47. In the absence of a tenable economic rationale to steer away from the free space ethos of the Internet, IP would instead have to rely on non-economic justification to warrant its existence. One of these is the labour reward theory for the conferral of IP rights[92] a theory that finds foundation in the work of John Locke.[93] Locke, in his famous Two Treatises of Government, states as follows: "Whatsoever then he removes out of the State that Nature hath provided, and left it in, he hath mixed his Labour with, and joyned to it something that it his own, and thereby makes it his Property."[94]

48. Whilst evidently Locke's theory resides in some notion of a common endowment of resources, it comes into parity with intellectual property law by reason of the fact that the stock of resources is conceived as an endowment that, whilst made to all mankind, is not a resource that is the subject of a commonly held property right. This is a conception that Drahos describes as a "negative" view of commons, an idea he explains as follows: "Negative community is defined in terms of a commons belonging to no one, parts of which may be appropriated. Positive community is defined in terms of a common which belongs to all."[95]

49. It is only by describing the initial endowment of resources as a negative commons that Locke is able to justify the imposition of exclusionary rights on portions of the endowment. However, further examination of Locke's theory reveals that it does not adhere entirely to the negative view of the commons and this inconsistency suggests a certain frailty in the rationale.

50. Two provisos of Locke's labour theory of property are that labour will only confer property rights where enough endowment of resources is left for others and that a man is only entitled by that labour to that property which he can make use of "before it spoils."[96]

51. Respectively, these provisos appear to warrant both a sustainable use of resources and also a caveat against the accumulation of surplus. The fact that resources extracted from the commons as private property have to be used sustainably defies the notion of the endowment of resources existing as a public resource over which no property right is initially held; the concept of the negative commons. It implies a residual claim on the resources held by others for whom a stock of commons has to be preserved which is consistent with the concept of the positive commons.[97] In support of this assertion is the fact that copyright is not held in perpetuity.[98] The limited term over which a copyright owner may exert property right suggests a reversionary claim by the remainder of society over that component of the commons with which the creator mixed his labour.[99]

52. The application of Locke's second proviso becomes problematic when applied to information. Locke's second proviso prohibits the assertion of property rights in so far as such rights would be result in the waste of the propertied good. It has already been noted in this paper that information is a non-rival good in that the consumption of it by one does not prevent the simultaneous consumption of by another. Intellectual property seeks to remove this non rivalrous quality from information by the creation of an artificial scarcity.[100] In this fashion, potentially beneficial uses of the information are excluded by the existence of copyright. The opportunity cost externality that these foregone uses represent would come within Locke's wasteful appropriation proviso As Hettinger states,

    Since writings, inventions and business techniques are non-exclusive, this requirement prohibiting waste can never be completely met by intellectual property. When owners of intellectual property charge fees for the use of their expressions or inventions, or conceal their business techniques from others, certain beneficial uses of these intellectual products are prevented. This is clearly wasteful, since everyone could use and benefit from intellectual objects concurrently.[101]

53. A further attack on the coherence of a Lockean justification for intellectual property is the stress that it places upon the input of labour. The labour requirement has been criticised by Robert Nozick, who comments that if one was to pour a can of tomato juice into the ocean then he could claim ownership of the ocean by virtue of the mix of labour.[102] The input of labour as sufficient to claim ownership over all resources to which the labour is applied lacks an intuitive logic[103] and this incoherence is not addressed by Locke in Two Treatises.

54. The frailty of a labour input being the sole justifying rationale for copyright has been recognised judicially, with the rejection of the "sweat of the brow" rationale for the conferral of copyright: Feist Pubications Inc v Rural Telephone Service Co Inc (1991) 113 L Ed 2d 358; Exxon Corp v Exxon Insurance Consultants International Ltd [1982] Ch 119. Moreso, a right granted under such a rationale would be wholly inappropriate as intellectual works are usually the result of successive inputs of labour by various parties.[104] As Pendleton notes,

    In a technologically advanced society no one can meaningfully be said to create information; rather they may innovate and synthesise, but necessarily they must build on existing stocks of knowledge. It follows that in a limited sense, some aspects of technology are the common heritage of mankind...This necessary dependence on past knowledge gives rise to claims that information ought not always be treated as a commodity, but rather as a community resource...[105]

55. Lockean theory, therefore, does not provide a wholly cogent justification for the conferral of IP rights, and, as demonstrated by the precedent rejecting the input of labour as a sole rationale for asserting copyright, it is not a justification that can exist in the absence of others. It is a theory that is troubled by its own internal contradictions and does not, therefore, provide an unassailable conceptual bases to which IP may appeal for legitimacy.

    Tentative Recommendations: Access to IP

56. This essay has made clear that, whilst the predominant ethic of the Internet is anti-monopolistic[106] it would nevertheless make little sense to recommend a wholesale removal of intellectual property rights to accommodate this ethic. Such a recommendation would be wholly untenable given the clear intentions of law makers to adhere to existing legal instruments[107] Thus, any recommendation designed to further means of access to protected content must be formed within the structure of an existing legal instrument[108] preferably one that already sits in counterbalance to the exclusionary effects of IP rights.

57. A countervailing regulatory channel to compel access to content is desperately needed. Although it has been noted that the Internet is a medium the technology of which has made copying instantaneous and virtually costless, this technology has also afforded to copyright owners various methods of blocking such copying, particularly copying through the practices of IMG linking and framing favoured by meta site operators. [109] The availability of such technological bars has been suggested as one reason why no intellectual property litigation pertaining to meta sites has actually been completed.[110] A regulatory channel to pursue access to content in the face of the use of technological bars and the absence of a litigation forum would be a useful tool for meta site operators.

58. Competition policy is one such appropriate channel. Prima facie, "antitrust law prohibits monopolies while intellectual property law grants legal monopolies to producers of creative works."[111] However, the real usefulness of competition law as a tool for the purposes of this essay lies in the fact that competition law pursues similar principles of consumer welfare[112] that IP purports to pursue, with the fundamental difference being that competition law does not effect this goal via the preservation of monopoly and exclusion. As the FTC stated,

    ...antitrust law and intellectual property protection have common policy goals; in the broadest sense, both hope to maximise consumer welfare...Intellectual property law achieves this goal by protecting exclusive property rights in innovation while antitrust law seeks to ensure a vigorously competitive market structure.[113]

59. Of course, competition law is not so much a unitary instrument as it is a structure containing an assortment of mainly prohibitional tools to prevent certain types of conduct. As such, a careful selection of an appropriate instrument within competition law is necessary. This paper will recommend the adjustment of the "Access to Essential Services" ("Access") regime contained within Part IIIA of the Trade Practices Act 1974 ("TPA") as the appropriate schema through which to provide for access to protected content.

60. Note that the selection of Part IIIA access is primarily based on the flexible structure of the regime, and does not purport to apply the scheme as it exists now without alteration to an IP paradigm. Part IIIA was a regime designed with reference to large physical infrastructure[114] such as rail lines and gas pipes, and this is evidenced by existing requirements including that the facility providing the service be of national importance (s44G(2)(c)(iii)), and that the definition of "service" itself, for the purposes of the Part, is one that expects to be applied to physical structures such as "roads and railway lines"[115] (even though in Re Australian Union of Students (1997) ATPR 41-573, it was questioned without deciding whether a government database could be considered a "service"). At any rate, the surface incongruence that exists between the current access regime and intellectual property is only a superficial one that may be corrected by legislative amendment, and does not necessarily detract from the hypothetical effectiveness of the scheme as a whole. Indeed, in the United States for example, the surrogate access regime contained within the doctrine of "essential facilities" functions effectively without reference to a requirement that the facility be of national importance[116] as the doctrine only requires that access to the service be proven to be essential in order for a competitor to compete in a relevant market.[117]

61. Furthermore, the US doctrine has recently been interpreted so as regard technical information as "essential facilities" in Intergraph Corp v Intel Corp , 3 F.Supp. 2d 1255 (N.D Ala. 1998). Thus, as to the superficial points of ill fit between the current Part IIIA and a proposed access to intellectual property, a legislative model (US) even exists for any amendments necessary to so shape the regime. In addition, Part IIIA access, as a regime designed to liberate access to infrastructure facilities essential for a brisk economy seems intuitively suited to application to IP in the light of the fact that it is content and works that constitute the principal infrastructure of the "information economy."

62. This selection of Part IIIA Access as an appropriate instrument of competition policy is one that has been arrived at by a process of both deductive and inductive reasoning. By process of deduction, most of the components of Part IV of the TPA pertaining to anti-competitive conduct have been excluded with reference to intellectual property by the existence of s51(3) of the TPA. This section substantively preserves only the operation of s46 (misuse of market power) and s48 (resale price maintenance) with respect to arrangements or uses of intellectual property rights. Abstracting the rather extraneous s48, in order to argue that Part IIIA access is the appropriate measure through which to seek access to protected content, s46 litigation has to be compared as an inferior solution.

63. This is a harder task than first appears as s46 and access to essential facilities have been generally regarded as policies contained within each other.[118] So much was acknowledged in the Hilmer Report[119] although that same report rejected the proposition that access to essential facilities could be sufficiently dealt with through s46 litigation.[120] The notion of s46 initially being considered sufficient to deal with essential facility claims is probably co-extensive with expansive constructions of the section such as that in Queensland Wire Industries Pty Ltd v Broken Hill Proprietory Co Ltd (1988) 78 ALR 407 that expanded s46 to include refusals to supply where there had not been a previous course of dealing.[121]

64. Section 46, however, framed as a prohibition on the misuse of market power, contains a cumbersome list of requirements to be fulfilled prior to a contravention being held. The terms of the principal prohibition are contained within s46(1) that reads as follows,

    (1)A corporation that has a substantial degree of power in a market shall not take advantage of that power for the purpose of:

    (a) eliminating or substantially damaging a competitor of the corporation or of a body corporate that is related to the corporation in that or any other market;
    (b) preventing the entry of a person into that or any other market; or
    (c) deterring or preventing a person from engaging in competitive conduct in that or any other market.

65. Some of these requirements can prove problematic in application to intellectual property and therefore erode the usefulness of s46 as a means of obtaining access to protected content. For example, as to the requirement of "market power", the ownership of an intellectual property right does not confer market power ipso facto.[122] The monopoly that is granted, after all, confers exclusivity over a "product" contained within a broader market, and not over the market itself.[123]

66. There has been contrary precedent in the United States as to whether the grant of the IP rights will confer market power[124] but the relevant authorities involved patents and therefore it is questionable whether the principle applies mutatis mutandis to copyrighted content. After all, Van Melle notes that patents involve a total product monopoly where the protection is extended to the ideas at the core of the technological advancement.[125] As such, there is little likelihood of substitutes for the patented product existing within a market, whereas in comparison, copyright protection does not extend to ideas encapsulated within the work, and therefore there is higher likelihood of substitute goods being available within the relevant market.[126]

67. Applied to the meta site example of eBay/Bidders Edge, Bidders Edge was compiling product descriptions etc of goods from a number of different sites. The content on eBay's site provided only one source of comparative information. The injunction of Bidders Edge from utilising that content would not entirely prevent it from compiling its comparative service. The nature of Bidders Edge's service was premised on the organisation of substitutable information, and thus it would be unlikely that eBay would fulfil the "market power" requirement of a s46 action.

68. It is on this point where seminal cases that have resulted in orders to supply copyrighted content may be differentiated. In Radio Telefis Eireann and Independent Television Publications Ltd (Intellectual Property Owners Inc intervening) v EC Commission (Magill TV guide Ltd intervening) [1995] 4 CMLR 718, the TV program listings that Magill sought access in order to compile its TV Guide did not have a substitute. Without the relevant program information, Magill could not very well fabricate program information in order to create its TV guide. It was the lack of substitutes as to program listings that precipitated the order for access.[127] Similarly, in an Australian application of s46 to copyrighted content in APRA v Ceridale [1991] ATPR 41-074 (copyright material held by collecting society) and ASX Operations Pty Ltd v Pont Data Australia Pty Ltd [1991] ATPR 41-109 (stock exchange information held by ASX), there were no effective substitutes for the relevant information other that that held by APRA and ASX respectively.[128]

69. In distinction to s46 requirements, however, access to services doctrine does not require the presence of market power prior to a consideration of declaration. Section 44G(2) of the TPA sets out the factors to be considered prior to the NCC making a declaration, and the most robust requirement is that "it would be uneconomical for anyone to develop another facility to provide the service" (s44G(2)(b)). Therefore, where access to services provisions are used to obtain access to copyrighted content, substitutes may well exist for the target, but the applicant will only have to prove that it would be uneconomical for it to duplicate the service itself. This requirement favours application to intellectual property. As has been noted in previous sections of this paper, intellectual property, by its nature and especially with regard to the Net, has a high fixed cost of initial creation, but an almost zero marginal cost of reproduction.[129] This feature of intellectual property would certainly lend itself to fulfilment of the requirement that the "service" be "uneconomical to duplicate."

70. Section 46 also provides that the conduct has to be undertaken for a "proscribed purpose" as enumerated in s46(1)(a), (b), and (c). Whether a corporation has engaged in conduct for a proscribed purpose is a question determined with reference both to subjective and objective elements.[130] Given that the "purpose" requirement includes subjective elements, an issue that has arisen is the fact that if the conduct is merely exercising a legal right, then it usually will not be held as sufficient to satisfy any subjective intent to engage in conduct for a proscribe purpose: Helicruise Air Services Pty Ltd v Rotorway Australia Pty Ltd (1996) ATPR 41-510; Williams v Papersave Pty Ltd (1987) 16 FCR 69. This rule is problematic when an intellectual property right is the subject of the s46 claim.

71. APRA v Ceridale [1991] ATPR 41-074 is one case in which the refusal to license copyrighted works was not seen as conduct undertaken for a proscribed purpose. The Court found that the conduct of APRA: "...was merely to prevent unauthorised use of the material...[A]s we see it, this is a straightforward case of a copyright holder seeking to restrain a group of people from using copyright material unless and until they first had obtained the necessary licenses."[131] The court did therefore not need to examine the potential effect of the refusal to license on the relevant market as the conduct was not animated by the requisite intent needed to come within a consideration of conduct undertaken for a "proscribed purpose."

72. The rule that a mere enforcement of rights is not sufficient to satisfy the "purpose" requirement of s46 is equivalent to the doctrine of "legitimate business justification"[132] that exists in the US as a defence to an alleged contravention of s2 of the Sherman Antitrust Act 1890 (US) which encompasses provisions equivalent in substance to s46 of the TPA. Under this doctrine, the enforcement of a right is a legitimate business justification for the refusal to grant a license etc and therefore will not be sufficient conduct to contravene s2 of the Sherman Act. Data General v Grumman Systems Support 36 F 3d 1,147 (Data General) was concerned with a s2 action for a refusal to license software. Data General, the respondents, claimed that enforcement of an intellectual property right was a legitimate business justification for the prima facie anti-competitive conduct. Stahl J agreed and stated as follows: "...an authors desire to exclude others from the use of its copyrighted work is a presumptively valid business justification for any immediate harm to consumers."[133]

73. Of course, an opposing argument would claim that subjective factors are but half of the equation from which to infer whether conduct was engaged in for a "proscribed purpose." The other half is of course objective matters. This paper does not question that objective elements such as market structure and participation are persuasive factors in the determination of a contravention of s46. Certainly, in both Queensland Wire and Magill, the objective fact that the respective refusals to supply would afford the owners of the goods to control the market for any derivative products of the particular good (star picket posts and TV Guides respectively) were important considerations as to the issue of proscribed purpose. Applied to meta sites such as Bidders Edge, if a compilation of comparative good descriptions etc is a derivative "good" of eBay's content, then objective factors may very much sway the court as to whether the refusal to supply was undertaken for a proscribed purpose. However, whatever result occurs, s46 is still a cumbersome way to achieve the same result that could be achieved through Access provisions, with the advantage of Access being that as it is not a regime framed in the language of prohibition, is not laden with complex evidentiary matters such as "proscribed purposes."

74. The criticisms of this paper have, in part, rotated around the criticism that IP rights and their accompanying philosophy, are somewhat misplaced in Cyberspace, and therefore, peripheral to all of the arguments contained within this paper is an assertion that challenges the legitimacy of IP rights in Cyberspace. It is for this reason also that the author finds the apparatus of access more appropriate than constructing "duties to deal" under s46. Section 46 is a prohibitive section as to conduct, and, as such, it does not take issue with the existence and scope of the property right, but only in the manner in which it is used. As Van Melle states, under s46: "The property right itself cannot be questioned but the manner in which it is used can."[134]

75. Access provisions, on the other hand, may take issue with the property rights themselves even in the absence of anti-competitive practices. Unlike s46, access provisions seek to directly intervene in the market as to inequities in resource endowment, whereas unless there is conduct so as to animate the section, s46 is passive as to the existence and endowment of property rights. By way of aside, it is for this reason also that this paper does not make an exclusive recommendation for the expansion of fair dealing doctrine as contained within the Copyright Act 1968. Fair dealing is an affirmative defence that is constructed when an applicant makes out a prima facie case of infringement.[135] Like s46, it is a device reactive to certain kinds of conduct and operates on the assumption of a valid endowment of property rights on the applicant. Like s46 therefore, it is not a "best" solution to compelling access to protected content because it is dependent on conduct to become active.

76. Access is not framed as a provision reactive to conduct, but needs merely an application from "any person" (s44F) to become active. As such, one may rightly suspect that the policy that animating Part IIIA is one that is intended to include within its terms much wider concepts than just merely concepts of economic efficiency that concern the rest of the TPA.[136] Confirming this view, the NCC has stated, in regards to Access policy, that,

    Nonetheless, while competition is generally consistent with economic efficiency goals and the interests of the community as a whole, there may be situations where there is conflict with certain social objectives. For example, governments may wish to confer benefits on a particular group for equity reasons.[137]

77. In fact, flexibility as to factors considered prior to a determination of access has been remarked as an essential feature for access regimes. Pengilly states as follows,

    An access regime capable of application to several factors in the economy requires the flexibility to respond to circumstances peculiar to particular industries and facilities, as well as changes in industry conditions over time. No single principle or rule of specificity is likely to meet the policy concerns of every market.[138]

78. This policy flexibility of the current access regime is contained within s44G(2) that enumerates the factors to be considered prior to a NCC determination as to declaring a service. Where relevant, the section reads as follows,

    (2) The Council cannot recommend that a service be declared unless it is satisfied in all of the following matters:
    (f) that access (or increased access) to the service would not be contrary to the public interest.

79. The public interest is a deliberately broad term that has been construed widely by the NCC consistent with the need for flexibility in access considerations. In Re Specialised Container Transport (1997) ATPR (NCC) 70-004, the NCC listed a number of factors that it would take into account in determining the public interest, the notable inclusions being as follows:
    • Social welfare and equity considerations; and
    • The interests of consumers generally, or a class of consumers.[139]

80. Social equity, as one factor to be considered in the question of access, is an inclusive term, one that is designed as a means for regulators to take into account factors particular to a particular set of facts.[140] As such, Access provides a useful and flexible framework into which a number of considerations may be imported through the commitment of the regime to consider a broad notion of the "public interest."

81. However, the usefulness of flexibility contained within an instrument can be made redundant if there are no guiding principles or considerations to channel the flexibility. This paper therefore advocates for the consideration of "fair dealing" doctrine and precedent within a regulatory factoring of whether access to intellectual property in certain circumstances operates to the public interest and benefit. The doctrine of fair dealing bears a close analogue to both the issue per se of compelled access to IP and also to considering the question of access within the context of a public interest consideration. As Brudenall states: "Fair dealing allows users to access and reproduce portions of copyright material for purposes that many would acknowledge to be in the public interest."[141]

82. Furthermore, fair dealing is a concept that has been developed at common law and statutory levels as a creature of copyright, and, as such, it is a factor that considers the public interest in dissemination of works in a comparative balancing process with the economic and property interest of the creator of the relevant work. As Phan states, Fair use involves a balancing process in which a number of variables determine whether other interests outweigh the rights of creators. The court evaluates and balances the social benefit that the public derives from the unauthorised use in light of the interest in protecting the copyright owner's exclusive control of the work. [142] Thus, in this manner also, fair dealing doctrine finds a parity with the concerns of access provisions. Furthermore, whilst factors taken into consideration have found some definition as evident from the list provided by s40(2) of the Copyright Act 1968, fair dealing is also, like access to services, a doctrine that is characterised by its flexibility to different sets of circumstances.[143]

83. As such, an examination of the manner in which the doctrine of fair dealing has been applied to services analogous to meta sites in real space would be a useful guide for regulators when considering questions of access to IP within the framework of Part IIIA.

84. Although there has been no judgement handed down on the issue of meta sites per se, it has been judicially noted at interlocutory level that meta sites may support a derivative works infringement claim.[144] This section will therefore make some preliminary comments as to the ability of a meta site to come within the ambit of fair dealing under the assumption that it is a derivative work.

85. Whilst noting the interest and right of a creator to maintain exclusive control over derivative works,[145] fair dealing recognises the public's interest in the creation of such works,[146] as evidenced by the fact that fair dealing permits the creation, for example, of a book review that includes quotation from the reviewed article. [147] As book reviews, however, are largely academic and non-commercial in nature, this precedent is of limited assistance to meta sites which are often run as commercial ventures.

86. Fair dealing has generally not extended so far as to permit copying for commercial use.[148] The reason why fair dealing is not permissive of commercial copying lies in the concern of copyright to prevent free riders from capturing revenue due to the author.[149] However, consisted with the flexible spirit of the doctrine, fair dealing has not crystallised its distaste for commercial copying into a general rule,[150] with exceptions available to copying that is not solely directed as a wanton capture of the creators surplus.[151]

87. Therefore, meta sites may, even where they are run as a going commercial concern, come within fair dealing provisions if they can provide a sufficiently benign view of their conduct. One such view in relation to derivative works is to claim that that the derivative work is "transformative" of the original work and that therefore the derivative work has some productive social value of its own. Discussing the Texaco case, Sinclair states as follows: "The Court of Appeals emphasised that one of the factors that might point to there being a fair use is if the use is "transformative" or "productive" and not a mere replication of the same material for the same use."[152]

88. This principle seems to stress that in order to enjoy the protection of a fair dealing defence, a derivative work must not replicate the same "meaning" or "information" as the original author.[153] This position is supported by the words of Lord Denning in Hubbard v Gosper [1972] 2 QB 84 at 94 where he stated that "...if they [derivative works] are used to convey the same information as the author...that may be unfair."

89. This principle works in favour of meta sites. Further to the relation of meta sites and the creation of information contained within an earlier Part of this paper, it was also stated earlier that the essence of the post modern sociology of Cyberspace was the blurring distinction between author and reader.[154] Under this concept, meaning contained within text is not unitary, in that the meaning that the author conveys in his text will inevitably be varied by the perspective and interpretation of any user of that text.[155] Information expressed by a single author is only "one possible means of constraining the proliferation of meaning."[156] As Phan states: "The first author is only a participant in a continuing process of communication and the production of knowledge. Thus, viewers/users can continually contribute to the production of meaning."[157]

90. Applying this rationale to meta sites, the compilation of content on such sites is not only the creation of an informational work in itself, but represents a variation and contribution of a new meaning to each portion of content included on the site through the site master's interpretive difference to the author. The organisation and placement of the relevant content represents the expression of that varying interpretation. By post modern standards, a meta site does not and indeed cannot replicate the meaning of the original author by means of their re-publication.

91. In most cases where fair dealing has been invoked by the creator of a derivative work, consideration of whether fair dealing applies has been measured in terms of whether the conduct fell within one of the statutory purposes; i.e "research or study" [158] In De Garis v Neville Jeffress Pidler Pty Ltd (1990) 18 IPR 292 at 298, Beaumont J defined research as a "diligent and systematic inquiry or investigation into a subject in order to discover facts or principles." From this definition can be inferred the fact that "research" is an active process involving the "discovery" of something latent or dormant existing in earlier research works.

92. As such, the statutory "research" fair dealing exemption appears merely to be a paraphrase of the requirement that a new interpretive or informational value be imbued within a derivative work in order for it to enjoy defence. This is affirmed in Castlerock Entertainment, Inc v Carol Publishing Group, Inc (1998) 42 IPR 371, where Walker J, in discussing the "character and use" test for fair dealing [159] (of which research is a component), stated as follows,

    The more critical inquiry under the first factor (character and purpose) and in fair use analysis generally is whether the allegedly infringing work "merely supersedes the original work" or instead adds something new, with a further purpose or different character, altering the first with new...meaning or message in other words "whether and to what extent the new work is transformative.[160]

93. Case law has shown, however, that this has proved a difficult standard for the creators of derivative works, particularly those whose work takes the form of a straight compilation of copyrighted material without any interspersed commentary or input other than the organisation of the content: Stillitoe v McGraw Hill Book Co (UK) Ltd [1983] FSR 545, De Garis (supra); Longman Group Ltd v Carrington Technical Institute Board of Governors (1990) 20 IPR 264. This author suggests that this difficulty has resulted from a prevailing modernist view of textual meaning, where the court has assumed that by merely compiling material without any ancillary commentary etc, the creator of the derivative work is merely a passive conduit for the meaning and message of the author. As argued earlier, this notion is disturbed in post modern Cyberspace, where even the selection, arrangement and compilation of content is not a passive act, but one of interpretive creation. As Phan notes,

    ...the traditional method of publication foster[s] a rather passive form of communication in that most of the audience or the users of the copyrighted works were only expected, because of the limits of technology, to absorb or consume the work, not truly interact with it. Freed from the constraints of the traditional, closed means of publication and forms of communication, the Internet represents a radical departure from the traditional passive media model.[161]

94. The application of fair dealing doctrine may therefore have to be altered with reference to meta sites by reason of the interactive medium within which meta sites subsist. Whether this accommodation is made remains to be seen, but given the inherent flexibility of fair dealing doctrine in addition to the fact that in application of the doctrine to new technology the courts endeavour not to "force the proverbial square peg into the round hole", [162] a positive application of the doctrine to meta sites may indeed be forthcoming.

95. In summary, it is evident that even on a cursory examination of fair dealing doctrine that this section has provided, that there are existing streams of judicial thought through which the existence and operation of commercial meta sites may be justified. Fair dealing, through its structural analogue to the sentiments of Part IIIA access can provide a useful instrument for regulators in their consideration and application of Access provisions to IP.

    Conclusion

96. The digital Information Society is an economy of intangibles where electronic content is the unit of currency.[163] Indeed, if information is seen as the lifeblood of the this new "economy", then services such as meta sites that are concerned with the flow of information must be regarded as the arteries of Cyberspace.

97. This paper has maintained that the principal concern of the user in Cyberspace is access to information. This notion of "access to information" takes different forms according to the group invoking it. For meta sites, "access to information" takes the obvious form of an ability to use and compile content otherwise protected by copyright. For consumers, "access to information" requires more than just freedom to access intellectual resources per se. Consumers must also have the ability to use such resources in a fashion explained by Drahos as follows: "accessibility to the intellectual commons depends on a commoner having the relevant capability and competence to take advantage of the objective world of knowledge."[164]

98. In the data dense environment of Cyberspace, it is in assisting consumers to take advantage of massive stocks of information where the existence of meta sites come into parity with consumer welfare, and where consumer welfare finds itself with a derived interest as to meta site operators obtaining their "access to information" needs.

99. It is on the basis of this philosophy that this paper has attacked the claims of IP to be concerned with consumer welfare. Noting that these claims are based on a combination of "consequentialist" and "utilitarian" arguments [165] interspersed with appeals to rights at natural law as embraced within Lockean labour theory, [166] this paper has mounted a conceptual challenge as to the applicability of such arguments to the contextual terrain of Cyberspace.

100. This paper has also sought to provide a practical framework through which to implement the conceptual recommendations of the paper. Such a practical structure was considered important in the light of the fact that any goal of increased "access to information" could not come from a wholesale removal of IP rights given the strategy of law makers to govern cyberspace by application of existing legal instruments.

101. In short, the Internet is a medium that is often misconceived as merely an evolutionary step in technological forms of communication. Such a misconception belies a common understanding that Cyberspace, a term that itself implies spatial differences, could support user culture and requirements that make the application of anachronistic, "real space" jurisprudence inappropriate.[167]

102. As such, IP may not assume a self-evident claim to legitimacy in Cyberspace. As Barlow states, "Digital technology is detaching information from the physical plane, where property law of all sorts has always found definition."[168] Meta sites are a manifest example of an apparatus in Cyberspace that caters to reconstituted notions of consumer welfare and information, notions that lie in direct conflict with the exclusory foundations of IP. In the inevitable resolution that will emerge from a legal determination regarding meta sites, law makers should pay deference to socio-legal differences between real space jurisprudence and Cyber-jurisprudence, lest the social and economic promise of the Internet becomes fatally diluted. Perhaps regulators would find useful, as a reminder of the need to discard aged jurisprudence in regard to the new social space of the Net, the following quote from the Book of Matthew: "Neither to men put new wine into old bottles; else the bottles break and the wine runneth out, and the bottles perish; but they put new wine into new bottles - and both are preserved."[169]