Technological measures in a land of myth and a time of magic

In a land of myth, and a time of magic, a young technology journalist conducts an interview on digital locks. His name… Jesse Brown.

The person he is interviewing is Financial Post editor Terence Corcoran. Mr. Corcoran, admitting he doesn't understand technology, speaks of magical incantations that can be done over digitally encoded copyrighted works.

While Jesse and I both normally focus on discussing science and technology, I thought it might be interesting to explore what my views would be if I lived in the land of young Merlin or with the magic of Harry Potter.

Lets get the science out of the way first. Digitally encoded content alone is no more capable of making decisions than a book about monsters is capable of crouching under the bed waiting to try to bite Mr. Potter. If there are any decisions to be made, including if or when content can be copied, the rules are encoded in software and are executed on some device (computing hardware). The critical moral and legal question should be who owns that device. As I discussed in my brief to C-11 committee there are a class of infringers (and inducers/enablers of infringement) that are inadequately understood by the less technologically literate, and in a just society we must pass laws to protect technology owners from these infringements.

What if rights and interests of device owners and competing software authors weren't an issue. What if there were magical incantations that could be invoked upon digital content such that it was the content that made the decisions, and could itself enforce the rules placed upon it by the magician. Would my views be all that different from Mr Corcoran? The answer is that we would agree on the fundamentals, and would only be disagreeing on less critical economic and legal details.

I do not subscribe to the notion that if I buy an instance of a copyrighted work (Music CD, book, painting, sculpture, photograph) that I own it and can thus do anything I want to it. Copyright is a series of activities which require the permission of the copyright holder in order to do, with all other activities not being regulated by copyright at all. There are royalty-bearing (compulsory licenses/levies) exceptions and royalty-free (fair dealing) exception to this list of activities. With the exception of "access control" technological measures which are incorrectly being added with C-11, all the activities regulated by copyright are activities which first require that you own, possess or otherwise have access to an instance of the work. In other words, copyright has always been a limit on what someone can do with something you already have, so the notion that if you own it you can do anything you want with it is an opposition to copyright itself.

If as an owner of an instance of a copyright work you want to add all the activities regulated by copyright to the activities not regulated by copyright, you must buy the copyright itself. Even then there are moral rights in Canadian law which you can't buy, and can only try to convince the creator to waive.

We have been discussing this fundamental aspect of copyright in the discussion about the art resale right. It is important to notice in the list of activities that few relate to creating copies (reproduce in section 3), which is a common misconception with the word "copyright" in English. The term "copy" should be understood as a synonym for "manuscript", not referencing tangible or intangible copies.

(Please see Section 3, Section 15, Section 18, Section 21, Section 26 rights as well as section 19 compulsory licenses.)

On the core substance of copyright law itself I suspect Mr. Corcoran and I would agree. Beyond confusions between magic and technology there are other areas we would disagree.

Mr. Corcoran writes about his belief there is hysterical overreach by Internet activists when it comes to technological measures. I believe it is the industry associations associated with the so-called International Intellectual Property Institute (IIPI) who have been guilty of hysterical overreach. They have been grossly inflating the alleged harm from non-commercial copyright infringement in widely debunked "studies", outright lying about the state of law in various countries in submissions to the USTR's Section 301 process, and misdirecting people on the real-world impacts of technological measures (Hint: BSA and ESA are members of IIPI, and it is their anti-competitive efforts that form the basis of the IIPI's policies on technological measures).

While I am not happy that so many people oppose technological measures based on the same myths that Mr. Corcoran bases his support, that opposition is still not a hysterical overreach in comparison to what proponents have been doing.

If we move back to the legal protection of magical incantations, I still disagree that this legal protection belongs in copyright law. If someone breaks a spell protecting a contract, then they should be considered in breach of contract law and have the remedies of contract law applied to them. It is invalid to have a contract dispute, magical or not, be elevated to the level of allowing one party to be eligible for copyright's statutory damages. This unjustly privileges one party to these contracts. Even in this land of myth and time of magic, these legal protections would have constitutional problems given they would still "represent a poorly veiled attempt by the Government to strengthen the contractual rights available to copyright owners, in the guise of copyright reform". The critiques that legal experts such as professors Jeremy deBeer, Emir Aly Crowne-Mohammed, Yonatan Rozenszajn and Michael Geist have had with the technological measures aspects of C-11 would all still all apply.

In the big picture, however, these are comparatively smaller areas of disagreement. We would still not agree on the severity of the problem, or the specific law which the solution is being added to, but in this land of myth we would agree on the goals. We would not have that overarching disrespect for the property rights of technology owners which is my primary concern in the real-world version of the debate. Much of the conversation in the C-32 and C-11 committees, including commentary from the MPs and nearly all the witnesses, were of a form more appropriate for this land of myth I am speaking of, so Mr. Corcoran is in common company.

For those of us who understand technology, and have to live with the real-world consequences, it remains clear that we have a lot of work ahead of us. We not only have legal arguments to make with the help of various law professors and lawyers, but we have to educate non-technical people so we can move them from talking about science fiction/fantasy to discussing real-world science and technology. This will not be an easy job, but we should accept it as the duty of the technologically literate to take on this task.