Debating copyright at the Council of Federal Libraries (CFL) Annual Fall Seminar.

(Story also published on p2pnet)

On September 14, 2005 I participated in a panel at the Council of Federal Libraries (CFL) Annual Fall Seminar . The day was very informative for me, being a technical person who may spend a lot of time with fellow creative Canadians in the copyright debate, but have not spent a lot of time with librarians.

The debate I participated in was at the end of the day. Steven Cohen from PubSub Concepts Inc. and had spoken earlier in the day about the use of RSS to have conversations over the Internet, and how librarians should be keeping ahead of the curve in knowing what is coming. The other panellist was Virginia Jones, Associate Legal Counsel at Access Copyright. Access Copyright is a collective society which collects royalties (monopoly rents) for a variety of types of works under copyright including commercially published books, magazines, journals and newspapers.

As a creative Canadian who supports and promotes a full spectrum of methods of creation, distribution and funding of creativity, you can probably guess that there would be a few areas of disagreement that I would have with a lawyer from an administrative body for one funding model. Ms. Jones and I had a chance to speak before the panel, and she informed me that Access Copyright had matured quite a bit since my conversations in the past. Access Copyright now recognizes alternative licensing models such as Creative Commons, something that is new for an agency that in their language always equated "licensing" with their collection methods.

Ms. Jones started the panel with her formal presentation. The most controversial thing she said in my mind was the suggestion that "digital copyright" is the same thing as traditional copyright. While she is correct to state that copyright applies to the same types of works in the digital world (e-books are still books, digitally encoded recorded music is still recorded music), the effect of the type of regulation that copyright offers is extremely different in the digital world.

Copyright is an exclusive right granted to an author to be able to exclude others from doing certain activities. If we take books as an example, with tangible books most activities are unregulated by copyright. You are not able to copy, perform or publish the book without authorization, but you can read it (any number of times and in any order), rent it, loan it, sell it, and even use it as furniture if you wish.

With digital material, in order to access the work and present it in a format that is useful there are "copies" that need to be made in the computers memory. Some lawyers and courts have presumed these are regulated copies. This means that while the tangible media that digital information is stored on may be similar to a book, all aspects of an audience accessing (meaning reading) the material is presumably regulated. This means that with digital works there is now a presumed "access right" for copyright holders, the right to exclude people from accessing a digital work even where they already have legal physical access. This is a direct attack on the "right to read", a concept that could not have existed before digital copyright.

Any modernization of the copyright act should recognize this problem, and clarify that the "right to read" is not something that is regulated by the copyright act.

Unfortunately the extremists from the currently successful content and software manufacturing industries are lobbying to accomplish the opposite goal. Legal protection for Technological Protection Measures (TPMs) which claim to protect copyright are a back-door to giving legal protection for "access control" technologies which tie the ability to access ("read") digital material to specific "authorized" brands of access technologies. Never before in our history has the exclusive right of copyright allowed copyright holders to authorize access tools and other aspects of the environment where the public can access works.

This aspect of digital copyright was the focus of my presentation. While I brought slides, I was only able to discuss a few key points. The two areas I focused on was how digital copyright was radically different from copyright of the past, and how Digital Restrictions Management (DRM, the use of TPMs to try to restrict the actives of audiences of works under copyright) can not work as advertised.

I offered similar thoughts to this audience that I did in a recent letter to a member of parliament:

To analyze the effects of anti-circumvention laws you need to break people into 3 groups: the technically sophisticated copyright infringer, the unsophisticated copyright infringer, and the non-infringer.

Technically sophisticated copyright infringer

With the use of TPMs to protect copyright, often called "Digital Rights Management" or "Digital Restrictions Management" (DRM), the content is encoded in such a way that it can only be accessed with authorized access tools. Thinking about the lock-and-key analogy, the content is in a locked box with the key being embedded within any authorized access tool. A technically sophisticated person would have no trouble extracting the key from the access tool and unlocking the content. At this point the content would be in a format the same as if DRM never existed.

This person can then make the DRM-free version of this file available to others. It is important to realize that at this stage they are already violating existing law, and the fact that they first unlocked the content first doesn't change much.

Technically unsophisticated copyright infringer

All it takes is one person out of the almost 6.5 billion people worldwide to be technically sophisticated and unlock the file into a DRM-free file format, and the content is then available in a format that any infringer can access.

The most important thing to note is that for those who wish to infringe copyright, the existence of DRM has little to no effect on them. All the existing methods to illegally share this content still exist, and the past existence of DRM doesn't change this.

The non-infringer (law abiding citizens)

Someone who is not going to infringe copyright is also going to obey the limits imposed by DRM. This means that if they wish to enjoy content encoded in Microsoft, Apple, Sony or other DRM file format, they will purchase access tools with the right keys from Microsoft, Apple, Sony or whatever other companies tools they need to buy to access their purchased content.

It is important to remember that a modernization of copyright law would legally protect us from DRM in order to protect our right to access legally purchased works using access technologies of our own choice and that are under our own control. The extreme loss of balance in copyright that this new claimed "access right" is offering past creators at the expense of future creators and audiences should not be downplayed in any way. The control that this new technological intermediary, the DRM manufacturer, will have over creative Canadians will harm Canadian creativity far beyond the most theoretical extremes of copyright infringement that the incumbent content and software manufacturing industry associations have claimed.

Debate Question: Would Libraries Exist?

Of all the questions that Steven Cohen asked, this question generated the most emotion from the participants. He added this question and some of this own thoughts to his BLOG.

The question was simple: if libraries and the idea of having institutions be able to loan books to patrons for free did not already exist, could they be created in the current political climate around copyright. When asked I gave a simple "Theft is theft" answer while Ms. Jones tried to claim that there would be no problem.

I believe we only need to see the response of the recording industry to non-commercial sharing of music to understand how this dynamic would happen. In both cases we have the case where audiences that did not compensate the copyright holder are able to access works, and in both cases no tangible storage medium is unaccounted for (IE: with the libraries the physical medium is returned, and with unauthorized peer-to-peer no physical medium ever changed hands). While it is possible in the peer-to-peer case to have more than one person accessing the same work at the same time, something that is harder to do with the loaning of tangible media, I do not believe that this would have a significant affect on the rhetoric around how the questions were analysed.

Copyright holders would claim that each time someone accesses a work without authorization (some say without payment, excluding non-royalty based business models, but that is a topic for another time), that this is a form of "theft". We saw this type of rhetoric with the Heritage Minister announcing the ill-conceived Bill C-60 in an HMV claiming that accessing music without paying for it was no different than taking the tangible CD from the retail store. I can envision the Heritage Minister claiming that borrowing material from a library, even if the material is returned at a later date, is no different to the copyright holder than if a tangible copy of the material had been stolen.

In all these cases there would be copyright holders that would want to authorize the use, which is what Ms. Jones would be talking of. The same is true of recorded music, with a very large number of independents using licensing models such as Creative Commons to pre-authorize the royalty-free, non-commercial distribution of their works on P2P networks, receiving payment for other commercial uses. The major difference here is that with recorded music you have the members of the lobby group CRIA (the "Canadian" Recording Industry Association) that controls 95% of the market for recorded music, even though they have far less than 5% of Canadian musicians signed to them. When the largely US and European major labels that make up CRIA do not authorize material for non-commercial sharing/loaning, then we hear the "theft is theft" rhetoric and the entirely false claims of "harm" that occur when audience members become more literate and can access a wider variety of material. (Note: CRIA no longer lists their membership on their public website, but is very helpful. Please make a copy before CRIA sues to have this public disclosure removed)

There are other similarities in Canada, which is that for some library material and for recorded music that even if the "patron" of the unauthorized library or P2P does not directly compensate the copyright holder, compensation schemes exist. For libraries there is the Public Lending Right Commission which uses public funds to compensate the authors of popular materials loaned by libraries, and for recorded music there is the Canadian Private Copying Collective (CPCC) which already compensates for private copying and could easily be expanded to administrate a voluntary collective licensing system.

I strongly believe that the reason the major labels are opposed to voluntary collective licensing is that they realize that in a free market of choice for audiences, including adequate access to the vast majority of music that is "out of print" and unavailable at any price, that their members would no longer control 95% of the market for recorded music. It is not infringement that they are most worried about, but free market competition.

When Graham Henderson, president of CRIA, says that his opponents want "music to be free" he is correct: Free as in free speech, free market, free society, free culture, Free Software and freedom - not as in "free lunch", "free beer", or freeloading. What we want is music and musicians to be free/libre, not free/gratis. Nobody ever confuses a "free trade" agreement or a "free market" economy as being about not being able to charge money, and we should not allow this type of obfuscation of the issues to go unchallenged in the copyright debate.

There is a critical need to make the CPCC more transparent and accountable, and one way would be to have it funded transparently and accountably out of public money like the PLR. Currently the method of distribution for CPCC royalties is calculated using statistics that favours CRIA members at the expense of independent and unsigned artists. In both cases it should be the authors, not publishers or labels, that should be getting the money. The artists should be in control of whether the middle-men get paid, and should be in the strongest bargaining position for determining the methods they use for distribution and compensation. The PLR already works this way, so it is only the CPCC and the recorded music industry that requires modernizing legislation.

Future topics

There is so much more that could be written about under this topic, and I hope that people will reply with their own thoughts.

  • Should unauthorized non-commercial sharing/loaning be compensated? There is a whole set of economic analysis that suggests that this type of sharing/loaning increases the market for commercial distribution of works. If this is the case, do we need a CPCC or a PLR at all?
  • What about Bill C-60? There are many direct attacks against libraries, such as the requirement that Inter Library Loans (ILL) be able to "self destruct", meaning that they be under Access Control TPMs. Now that the extremists got a "rental right" at WIPO in 1996, and thus in Bill C-60, how much longer before they get a "loaning right" as well and be able to disallow library loaning entirely?
  • Mr. Jones kept referring to Bill C-60 as "our bill", which begs the question: is this bill really seen by a majority of creators as being of benefit to them rather than the current intermediaries, or is it the interests of copyright lawyers to make copyright complex (and thus lawyers necessary) that was being discussed? In a world where copyright is getting more and more complex, and harder all the time to determine what is an infringing activity and what is not, how can we create and protect "lawyer free zones of creativity"?
  • Who benefits from DRM? While a few currently successful copyright holders and some technology intermediaries benefit from being protected from competition, DRM will greatly harm the rights of the vast majority of creators and the general interest. It is only a lack of understanding of access control and other related technologies that have "duped" creative Canadians into supporting this attack on creators' rights.

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The problem is worse than you think. DRM doesn't put the contro

The following is a reply on p2pnet to one of the readers who wrote in.

The problem is worse than you think. DRM doesn't put the control in the hands of the "copyright owners" either, just in the hands of the DRM vendors. I am opposed to DRM not only as a music fan and "user" of works under copyright, but also as a software and non-software literary author.

What a DRM does or does not allow you (meaning the author or the audience) to do is not determined by the "copyright owner". The "copyright owner" just encodes their license agreement terms in the DRM and it is up to the software offered by the DRM manufacturer to enforce (or not) those terms.

One of the types of DRM that is not well discussed is watermarks. Picture a DRM chip in your digital camera that detects watermarks. The claim is that this will stop you from pointing your camera at a movie in the theater or at home and recording it “without permission”. As you are taking your home video you notice that when you pan the room and the television comes into view, that your camera goes blank until the television is no longer in view.

Now imagine a politically controvercial scene, such as the various photographs taken of US soldiers returning from Iraq in coffins. All the US government would need to do is to have little video projectors that would output "water-marks" and the camera would then think that the photojournalist was trying to "infringe copyright".

The fact is that no technology can ever know the difference between something being a copyright infringement or something that someone wants you not to be able to record for some other reason. The same tools that are used to "create" can be used to "re-create", and there is no possible way a technology can ever tell the quite subjective difference between creativity and copyright infringement.

If we want to win this battle we need to realize it is not "copyright owners" vs. "audiences", but specific "intermediaries" against everyone else -- including both "copyright owners" and "audiences". The "copyright owners" are being duped by the DRM manufacturers into supporting something that will violate their rights to a greater extent than any theoretical amount of copyright infringement.

I recommend people look at some of the material from the book "free culture", especially what happened with the motion picture industry under Thomas Edison's patents.

CHAPTER FOUR: "Pirates" : Film

This time there is no "west coast" (Hollywood) for creators to go to to hide from the lawyers from the tech companies that are being granted excessive control. In this case many of the creators and other "copyright holders" are so misinformed as to be lobbying on behalf of the technology companies that they will be trying to flea from in the future once they finally figure out what is really going on.

The recording industry will be interesting to watch. It is unlikely they will be able to survive long in a world where DRM is fully deployed and legally protected. That Graham Henderson is so clued-out to be asking parliament to chop his head of faster would be amusing to watch if it was only the major labels he "represents" that were going to be decimated by his lack of knowledge.

Free/Libre and Open Source Software (FLOSS) consultant.