The police logic of balancing the interests in Copyright Law

This article examines the use of the phrase ‘balancing the interests’ in political debate relating to copyright law. I argue that this phrase no longer leads to broad debate on the proper balance to be struck between private, public and social interests in copyright law. Rather, today the phrase has come to represent a type of police logic which reflects the private interests of copyright owners and users as they already exist. Drawing on the work of Jacques Rancière I suggest that this balance of private interests may be upset by a strategy of ‘subjectivisation’ which challenges the existing distribution of social bodies by making new subjects appear. I conclude that the recent cases of Telstra Corporation v Phone Directories Company Pty Ltd2 and IceTV Pty Ltd v Nine Network Australia Pty Ltd3 represent a surprising and effective use of this strategy by reintroducing the ‘artist’ and the ‘maker’ into copyright law in such a way as to upset and displace the prior claims of copyright owners and users.