Intellectual Property (IP) Theory and Australian Position of IP in the Realm of

Torrenting

Introduction
Intellectual property (IP) theory has not been the subject of serious philosophical enquiry or
heated debate until recently.1 Utilitarians thought that giving IP rights was a good way to
encourage innovation, as long as their length was limited to protect the public good from the
bad effects of monopoly exploitation.2 Non-utilitarian thinkers brought up the moral right of
creators to own their own work.3 IP has gotten more attention in the past few years because of
the rise of new technologies,4 especially digital ones like the torrent system. In torrent system,
online locations provide access to torrent files or "magnet links" that allow users to connect
to other users using a networking program without connecting through a central server.5 But
the fact that many questions remain unanswered about how to best create, measure, protect,
and use IP6 like copy rights, especially in torrent system. Therefore, upcoming discussion will
highlight justification of IP includes theories of IP, Australian position of IP in torrenting,
opinion of Australian parliament and court in this regard. Then the next segment will
rationalise the necessity of IP specifically copyrights, followed by recommendations.

Theories of IP
Professor William Fisher of Harvard University identifies four analytical constructs, which
we will call "theories": (I) utilitarian for maximising net social value, (ii) Lockean (one has
the right to the fruits of his intellectual labour), (iii) protection of personality in works, and
(iv) fostering a just and attractive culture. 7

1
Peter S. Menell, Intellectual Property: General Theories 1999
<http://www.dklevine.com/archive/ittheory.pdf>
2
Ibid
3
Ibid
4
http://www.dklevine.com/archive/ittheory.pdf
5
Roadshow Films Pty Limited v Telstra Corporation Limited [2019] FCA 1328
THAWLEY J:
https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2019/2019fca1328
6
Manal S. AlGhamdi, Christopher M. Durugbo, Strategies for managing intellectual property value: A
systematic review, World Patent Information, Volume 67, December 2021, 102080, ISSN 0172-2190,
https://doi.org/10.1016/j.wpi.2021.102080.
<https://www.sciencedirect.com/science/article/pii/S0172219021000570>
7
Ibid
 LAWS90125_2022_August| Fundamentals of Intellectual Property

Utilitarians believe that the primary function of property rights is to maximise social welfare.
That which is good for the largest possible number of persons in a population is what Jeremy
Bentham meant by "common well-being" here.8

According to natural right theory or labour theory (Locke’s Theory), the products of one's
intellect are just as much his as the results of his labour, and one has every right to claim
ownership over them.9

Third in IP theory is the theory of autonomy and individuality, which reveals that an artistic
creation has moral value since it reveals something about its author and serves as a
manifestation of his or her free will.10

The fourth theory, cultural or social planning theory, in contrast to utilitarian theory, tries to
expand its focus beyond the concept of "social welfare" to encompass a more comprehensive
picture of a society supported by innovation and creativity.11

Situation of torrenting and copyright in Australia

Torrenting is illegal in many major jurisdictions, like Australia, the UK (the Digital Economy
Act, 2010), and the USA (the Digital Millennium Copyright Act (DMCA) and the No
Electronic Theft Act (NET Act). Section 115A of the Australian Copyright Amendment Act,
2015, illegalized the torrent system. Australia is a signatory to the Berne Convention and the
Universal Copyright Convention, under which Australia is bound to enforce copyright law in
its jurisdiction.

8
https://originalpositionnluj.wordpress.com/2019/09/18/utilitarianism-in-the-context-of-intellectual-property/
9
https://www.abyssinialaw.com/study-on-line/item/468-theories-of-intellectual-property
10
https://scholarcommons.sc.edu/cgi/viewcontent.cgi?article=2454&context=law_facpub
11
https://watermark.silverchair.com/jpu018.pdf?token=AQECAHi208BE49Ooan9kkhW_Ercy7Dm3ZL_9Cf3qf
KAc485ysgAAAsMwggK_BgkqhkiG9w0BBwagggKwMIICrAIBADCCAqUGCSqGSIb3DQEHATAeBglghkg
BZQMEAS4wEQQMyvotAMq_p91fFW8tAgEQgIICdkmNHJRav5xV-ymzqgS6rh7Rph8N6fFexEPPTJlbKNg
AweRPZxZ0yL3Sh5T6igY06G0KvUnyNt-_N1rPYkDOuHVZnTVCr5y1LhquiQrSR6_ZlENOsZw1bMwWRS
LJ4R7vPl3thB5NAck_B--XNk8rKO483N4lwFGM3YEQXd3wu4bcw1S2AmIKvZNWsDniBsZM4A5c1Rek6
YY4dih21_zmUXaIyKJWpwa9w99lDm92XtZ-3xvfZ_wJBBF4krlblvsCVCZ2zoD_TyrKuhDSc8arg5IM5nLLC
B6kLX_Cgm2nOiph4v5ZZtk53tVEGuGKvNSmv7S2X9cULS3MYvxnUpD9-Y8bLT2pkxq47P6EDY3RlRx-IU
qiju0WUKVa2dpHXSatjZV3wB7sPYLwS9y6dFxbIwg6MlimcDLLUkQiBrOGiRa6LxPUKtQ2TLa9EluveR6G
FN-jf1Uw4Eai2J3--b97vR93WEbjxo3djfvA-TutesYrO2gCkVF2fyzPNzC83PenLWIQsFqjmKx4EXFzTEOBvs
QvRV4GWxMt_pf8jB-IFuLciqR1UUHrdknrZn33K1GtjXPerMZlkJvYb6qI3S83Qe9ilwygMyIL1oNPyb9MkU
2aMs0DPTIeYQ3ID7fanKPsr6Z65PNEC0M2i3vwaAT_YT_iLJEd0HO4J2CvhRJtCiqS6OP_BREDDw9Sr3Ya
QlLEv0K3cyYLH-58J9-hDavVCYww4a6G4Zc4BP7N26b5zQtt2vidaZqzpZybz9tbEAjbqD9Mqym8g4tZ2vy2b
AaxnscG_TuFeLW4mDqrM64mPSKRv_CbMktkZoOMjO5EJQpwdUT4nrVe5g

2
 LAWS90125_2022_August| Fundamentals of Intellectual Property

Australian Parliament View

Australia's Copyright Amendment (Online Infringement) Bill 2015 (now Act) allows internet
providers to block illegal online content.12 A lawmaker from the Labour Party, Mr. Dreyfus,
has stated that because of the harm that piracy is causing to our creative industries, the strict
enforcement measures outlined in Section 115A of the Copyright Act are necessary.13 But
Scott Ludlam, who used to be a senator for the Green Party, said that it didn't have enough
protections and could lead to legal online sources being blocked.14 Mr. Husic, a Labour Party
parliamentarian, echoed Mr. Ludlam that the people who own the rights want to keep things
the way they are so they can get as much money as possible from consumers.15

Australian Courts decision

The Australian Courts have decided in various decisions that copyright must be infringed
upon or aided in the infringing upon for section 115A(1)(a) to apply.16 Another court,
mentioning the torrent system, said that it costs a lot of money to steal someone else's work
by putting it online for free without their permission or a license.17 For instance, under the
title "The Pirate Bay," there is an online marketplace run by a company that looks to have
reproduced a prohibited site through various emanations.18 Therefore, a ban on the content of
"The Pirate Bay" is justified.19

12
https://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22legislation%2Fbillsdgs%2F3
830145%22
13
Copyright Amendment (Online Infringement) Bill 2018
https://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22chamber%2Fhansardr%2F4fa
4c3cb-5541-4547-98c1-81b998c56718%2F0032%22
14
https://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/bd/bd1819a/19bd041#:~:text=Purpose%20
of%20the%20Bill,-The%20purpose%20of&text=This%20scheme%20allows%20copyright%20owners,facilitate
%20the%20infringement%20of%20copyright.
15
https://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22chamber%2Fhansardr%2F4f
a4c3cb-5541-4547-98c1-81b998c56718%2F0034%22
16
Roadshow Films Pty Limited v Telstra Corporation Limited [2019] FCA 1328
THAWLEY J:
https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2019/2019fca1328
17
Foxtel Management Pty Limited v TPG Internet Pty Ltd [2019] FCA 1450
NICHOLAS J:
https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2019/2019fca1450
18
Roadshow Films Pty Limited v Telstra Corporation Limited [2020] FCA 1468
RARES J
https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2020/2020fca1468
19
Ibid

3
 LAWS90125_2022_August| Fundamentals of Intellectual Property

Justification for copyright

People argued against copyright protection. This segment will answer those misconceptions:

(1) Ownership of information

Even though information entities can be owned, that doesn't mean that content creators and
authors don't need legal protections to stop others from using their work without their
permission. 20 Furthermore, value assessments that explicitly promote the purposes of beings
with the proper degree of moral status, in this case, human beings, are required for the
justification of general rights claims.21
knowledge gained because of social engagement.22 No one person should have limitless,
eternal title to creative works since they depend on the collective wisdom of a civilisation. 23
It may be argued that the public has a right to ownership of these knowledge and information
repositories because we have already paid for their use through the costs of public education
and other such programmes.24
Rights of many kinds restrict the actions that individuals can take with their bodies and
property.25 IP rights do not impose any further limitations on individual liberty.26
Although we focus on the free speech argument against IP, there are parallel reasons for the
right to know. 27 In the long run, however, we have more to talk about, consume, and enjoy
thanks to the incentives28 provided by copyrights and patents.29

(2) Digital publication costs

It may be necessary to charge users a fee to cover the cost of publishing information in
physical media like books, but as the number of users increases, the cost (per user) of making
information available on digital media gets closer and closer to $0.30 It is unreasonable to
charge consumers for taking any piece of (digital) information, so the argument goes,
knowledge should be free (or virtually free) to reflect its transmission costs.31

20
https://plato.stanford.edu/entries/intellectual-property/#GeneCritInteProp
21
Ibid
22
Ibid
23
Ibid
24
Ibid
25
Ibid
26
Ibid
27
Ibid
28
It is also envisaged by the Utilitarian theory
29
https://plato.stanford.edu/entries/intellectual-property/#GeneCritInteProp
30
Ibid
31
Ibid

4
 LAWS90125_2022_August| Fundamentals of Intellectual Property

There are two main problems with this reasoning.32 If the above argument is right, then the
fair price will be set by the contracts that buyers and sellers in a competitive market make
with each other.33 To be considered reasonable, a price for digital information must be one
that purchasers are willing to pay even if it is significantly more than the seller's marginal
cost of supplying the information.34 Second, it fails to take into account the high initial and
ongoing expenses associated with producing and spreading IP.35
Locke says that once a person mixes their own physical labour with undeveloped land, they
have a right to both the land and the crops that grow on it.36 When one adds their own
creative labour to an existing idea, the resulting work is considered "original" or "novel," but
the idea itself is not protected.37 However, potentially far-reaching effects of proposed
changes to copyright, patent, and trademark law in the modern digital age.38 They are caught
between two equally unfavourable options when deciding how to implement social planning
concepts.39 Therefore, solutions are required to address these problems.

Recommendations
Many suggested amendments of Agreement on Trade-Related Aspects of Intellectual
Property Rights (TRIPS) specifying minimum responsibility requirements for the same to
resolve the torrenting and IP conundrum. In addition, Peter K. Yu offers the following ideas
as a possible solution:
(1) A group of creators and businesses agree to share their work under a single licence in
exchange for a membership fee. 40
(2) The "voluntary contribution," where the audience voluntarily contributes money to
the creators in exchange for the output. 41
(3) Mass licencing refers to the use of a common form in several transactions where the
sale or licencing of specific information is targeted to the general public through retail
or similar distribution under basically the same conditions.42

32
Ibid
33
Ibid
34
Ibid
35
Ibid
36
William Fisher, Theories of Intellectual Property <https://cyber.harvard.edu/people/tfisher/iptheory.pdf>
37
Ibid
38
Ibid
39
Ibid
40
https://knowlaw.in/index.php/2022/08/24/the-conundrum-of-torrent-and-intellectual-property/
41
Ibid
42
Ibid

5
 LAWS90125_2022_August| Fundamentals of Intellectual Property

(4) Mandatory licencing with a corresponding government fee. 43

(5) Ongoing advances in technology and enhancements to the creative process.44

43
Ibid
44
Ibid