Copyright formalities, technical measures, and what a modernizing Copyright treaty would really look like.

Julianna Yau has posted a BLOG article titled Roles and Responsibilities on the Web. While I discussed the ISP liability question on Friday, I wanted to address something she wrote at the very end.

If we can agree that the goal is to prevent unauthorized distribution of works, and that the source of the unauthorized distribution is at the level of user, what needs to be done to stop that from happening, without resorting to technical protection measures? To answer that, I think we need to find out why people who do not have the right to distribute copies either are unaware that they don’t have that right or why they feel they do have that right.

Most average citizens simply don't know what they are and are not allowed to do with a copyrighted work. Given most people don't understand what the Public Domain is, how a work joins the Public Domain, or how to find out, they really don't know what they are allowed to do with any creative work. Copyright law is getting more complex and less able to be understood (See the CCC proposals ;-), not clarified and simplified.

What we need with Copyright is more information offered to citizens, not more control. This is one of those things where technology would come in very handy. The problem is, far too many people in the debate are refusing to understand the difference between information and control.

I am opposed to very specific abuses of technical protection measures that are used to control: encoding content such that it is only interoperable with specific brands of devices, and digital locks on our devices to disallow the owner to be in control and make their own basic software choices.

That should never be confused with believing that I oppose the use of appropriate technical measures, which I happen to believe would lead to a major improvement and a massive reduction of (largely inadvertent) copyright infringement. With the inadvertent copyright infringement out of the way, then there would be no longer be moral opposition to legally pursuing the remaining deliberate infringement.

A number of times I have seen people get upset at people who are opposed to DRM and say that even if they go the compulsory licensing route they will need things like watermarks and other information attached to the content to collect statistics to know who to pay out of the pool of money collective.

They are confused technical measures used to convey knowledge -- which are not controversial -- with technical measures used to monitor/control the private activities of technology owners -- which are controversial.

We see the same thing with many of the authors associated with the Creators Copyright Coalition (CCC). When discussing Educational use of the Internet we (in the technology community) have suggested that if they want to charge royalties for works publicly distributed on the Internet then the content should be be made available in a way that this information is conveyed. This is a big part of what the Creative Commons movement has been helping with, at least for those who put adequate metadata in their documents. Where no information is conveyed, the assumption should be that the work was deliberately made available royalty-free to access (and also assume that commercial re-use and derivatives are not authorized). Professional authors should be expected to know how to publish their material in a way that indicates they wish to collect royalties for access.

I point to the many newspaper websites where you need to get a free account to be able to get in, and search engines like Google are not automatically indexing them since Google will never 'log into' a website, nor will Archive.org's Wayback engine make historical archives of the site.

The claim is that this is "DRM", when it is not. Not all "technical measures" are part of a DRM system, nor is every "technical measure" a form of Rights Management Information, watermarking, etc. The point is that these are entirely different things, some controversial and some not. Part of the reason we are screaming at each other is because we aren't even using the same vocabulary with remotely the same definitions of terms.

What we *DO NOT* need: technology used in a 'control' mode which will violate the intention of competition law, or to infringe the private property, privacy, creative, communication, cultural and other rights of technology owners.

What we *DO* need: technology used in an 'information conveying' mode which will be attached to all publicly distributed digital content which can inform the recipient of many things: is the work from an authorized source, who is the copyright holder, what are the terms that it was offered to me under, etc.

If properly done, the information would allow software (chosen by the user!) to do things like verify a digital signature to know that the information is authentic, and to even use software which automates (for them!) to warn if they are about to do something they are not authorized to do. They could consult a lawyer and override that warning, but then it is clear that they have made a deliberate decision with the relevant knowledge at hand -- and not made an accident based on the lack of knowledge which is the current situation.

We could have a transition time where we transition the 'default' for works without authenticated metadata. Right now we have to assume that the work was intentionally made available royalty-free online as there has been no legal or technical tools thus far to do otherwise. Once a treaty has been created and ratified in a country that deals with the signature repository, we can then wait a "Copyright term" (average lifespan + 50 years in Canada - longer in the EU and US) and switch the default to presuming anything that is online without signed metadata is either in the public domain or infringing.

With a proper digital registry with other footprint information for works, finding out if something is not in the public domain will be easy. In fact, creating tools to search the public internet and find infringing materials will finally be possible.

Some copyright holders are going to oppose this digital-era modernization of copyright. The most logical place for copyright holders to file their digital signatures (personal and per publicly published/communicated work) would be with the Copyright Office. This to some of the Copyright "everyone else but me is to blame" purists would be confused with copyright formalities and registration, which is not allowed under our antiquated Berne convention.

This is why I agree with those that say our Copyright law needs to be updated for the digital era, but what I see in the 1996 treaties isn't modernization (like harnessing digital technology for appropriate formalities), but backward-facing moves (how the TPM section has been interpreted to legalize technology abused for control).