[d@DCC] B.2.3 Contractual limitations on exceptions and uses

From: Russell McOrmond <russell _-at-_ flora.ca>
To: General Copyright Discussions <discuss (at) digital-copyright.ca>
Date: Fri, 17 Oct 2003 16:20:36 -0400 (EDT)

  This is an area that I have thought about, but need to check my thinking
with some of the other folks in this list.  This is part of my Heritage
Cmtee submission which is hopefully not too late to modify if I get
feedback suggesting I'm headed in the wrong direction.  It is one thing to
know what I am trying to suggest, but entirely a different matter to
suggest it in a way that is compatable with how laws are interpreted.


http://www.flora.ca/copyright2003/section92.html#B23

B.2.3 Contractual limitations on exceptions and uses

Far too many contractual agreements are of a complexity that the average 
layperson is not able to understand what they are agreeing to. When it 
comes to software "shrink-wrap" licenses, very few people even read the 
agreements to determine what rights they may be waiving.

One solution for citizens is to try to choose methodologies such as FLOSS 
where a large number of programs use the same license agreements rather 
than "software manufacturing" where often different versions or different 
customers of the same program are under different agreements.

Generally, however, we need to move away from thinking of Patents, 
Copyright or Trademarks as a form of property. What is owned by a 
copyright holder is not an idea or even an expression of their work, but 
very specific limited exclusive rights set out by the copyright act. It 
should not be possible to have a contractual license agreement that takes 
rights away from the user of a work under copyright that relate to an 
exclusive right which the copyright holder did not have in the first 
place. Where there is an exception to copyright is an example of an 
exclusive right that a copyright holder does not have, and thus is not a 
right that should be negotiable under contract law.

Recommendation: The act should clarify that exclusive rights that are not 
offered under the copyright act should not negotiable under copyright 
license agreements.

---
 Russell McOrmond, Internet Consultant: <http://www.flora.ca/> 
 Governance software that controls ICT, automates government policy, or
 electronically counts votes, shouldn't be bought any more than 
 politicians should be bought.  -- http://www.flora.ca/russell/

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