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Mass Communication MCOM5301: Communication Institutions, Cultural Industries and State Policy
March 14, 2006
Russell McOrmond, FLORA Community Consulting http://www.flora.ca/
Technical and policy consultant, focusing on new methods for the creation, distribution and funding
of creativity and innovation.
Current issues in Copyright
This document shared under Attribution license:http://creativecommons.org/licenses/by/2.0/ca/
Outline
1. Who are you? Who am I?
2. Who are the constituencies?
3. Who are the "rights holders"
4. Diving into policy: two sectors for examples: Music and Software
What are some of the incumbents asking for?
• Make copyright "stronger" to stop "theft"• Make "file sharing illegal" (video)• Legal protection for Technical Measures (video)
5. Open discussion
• (some other policy areas -- if you don't have your own to discuss)
Introductions
● IANAL (I Am Not A Lawyer), TINLA (This Is Not Legal Advice)
● I make my money partly as an author of software and non-software "literary works".
● I work as an Internet service provider (hosting websites/etc), and a computer/network security consultant
● I also consult for businesses trying to understand new methods of production, distribution and funding of creativity.
● Balancing act: Copyright is boring/complex, but a passion for me. Apologies if I get too political...
Who are the Constituencies?
Rightsholdersvs.
Infringers?
Who are the Constituencies?
Creatorsvs.
Users?
Who are the Constituencies?
Creatorsvs.
Intermediariesvs.
Users?
Who are the Constituencies?
● Creators
– Authors, artists, composers, performers,etc
● Non-creator copyright holding Intermediaries
– Employers, publishers, record labels, broadcasters (Canada)
● Other intermediaries
– LAM (Libraries, Archives, Museums), Educational institutions, ISPs, etc
● Audiences
– Everyone...
If you only remember one thing from today, remember these different constituencies and the fact that they each have very different needs!
"Rightsholder"
Copyright is a balance between many rights held by each of the constituencies
Good source to think about the various rights is the United Nations Universal Declaration of Human Rights
Adopted and proclaimed by General Assembly resolution 217 A (III) of 10 December 1948
http://www.un.org/Overview/rights.html
Creators' Rights
Article 27.
(1) Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.
(2) Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.
Creators' rights
● Creators depend on a balance between the two parts, and can't survive if the moral/material rights of past creators are over-protected.
– "If I have seen further, it is by standing on the shoulders of giants."
● Sir Isaac Newton, letter to Robert Hooke (1676)– "Creativity always builds on the past, and the past always tries to
control the creativity that builds upon it"● Lawrence Lessig (2003 and beyond)
– "Copyright is to Creativity like water is to humans: too little and you dehydrate and die, too much and you drown and die"
● Me :-)
Other rights: Free Speech
Article 19.
Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.
Other rights (circumvented by DRM?)
Article 12.
No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.
Article 17.
(1) Everyone has the right to own property alone as well as in association with others. (2) No one shall be arbitrarily deprived of his property.
What is: "Intellectual Property"
● used to refer to a group of laws that create (often temporary) monopolies on intangibles so that they can be bought/sold like tangible property
● areas of law more dissimilar than similar, and use of term creates confusion
● confusion benefits certain special interest groups who gain from these areas of law being complex to understand and navigate
● when talking about copyright, say copyright. When talking about trade secrets, say trade secrets, ...
● the World Summit on the Information Society working group on Patents, Copyrights, Trademarks and related laws suggests the acronym PCT when trying to reference group of laws: wsis-pct.org
What is:Copyright
● temporary monopoly on certain activities granted to the creator
● author may "sell" and/or "license" the material part of this monopoly, but may only "waive" the moral part
● while some authors wish to collect royalties to express their material rights, royalty collection is simply one business model among many. Copyright should not be seen as only a "right of remuneration"
● Free/Libre and Open Source Software (FLOSS), Creative Commons, Open Access and other initiatives do not replace copyright, but help copyright holders express their material rights using a full spectrum of creation, distribution and funding models.
What are the incumbents asking
for?● many joint press releases from the Canadian Recording Industry
Association (CRIA) and the Canadian Alliance Against Software Theft (CAAST). Both claim that there are industries in a crisis that need copyright to be made "tougher"
– Market analysis
– Statistical methods
– Results of lawsuits (BMG Canada Inc. v. Doe)
● Both are asking for "tougher laws"
– Make copyright more complex
– "making available"
– "Legal protection for Technical Protection Measures" (TPMs)
Market Analysis: CRIA/CAAST
● Facing competition from artists using alternative methods of production, distribution and funding.
– Peer production, peer distribution, and alternatives to royalty collection.
– Free/Libre and Open Source Software (FLOSS) : Microsoft ("Software manufacturing") lists Linux and Open Source as largest competitive threat in their US SEC filings
– Creative Commons: used by artists to turn sharing into legal advertising, making money by other means
– Many artists allow derivative works: sampling OK, mash-ups, ...
– Amateur, user-created works, multimedia BLOGS, etc
Statistical Methods
● Statistical methods used for so-called "Piracy statistics" do not adequately differentiate between infringement and competition
– CAAST:● Count number of computers shipped● Estimate demand for member software (wishful thinking)● Count number of boxes shipped● Declare difference to be "theft", even though the difference includes
competitors
– CRIA:● Look at sales during "bubble" years (80's/90's)● Look at current sales● Declare difference to be entirely due to copyright infringement● difference has many factors including competition from other methods
(authorized sharing, etc) and competition from other products/services (DVD, Games, cell phones, web-casts)
Lawsuit: BMG Canada Inc. v. Doe
● Considerable misinformation: It did not say that unauthorized P2P was legal in Canada
● Case lost due to "lack of evidence" of infringing activities
● Canadian situation different from USA because of PIPEDA
● While not necessary, courts wrote about different parties to P2P sharing, and the different activities
– Uploading/Sending: no evidence
– "making available": not part of Canadian law
– Downloading: Depending on circumstances might be covered by the Private Copying regime
Music copyright
● Situation already complex
– composers, lyricists, songwriters● Music Publishers
– Performers
– Sound recording makers● Record labels
● Some of these copyright holders have a "sole right" to do various things, while others only have a "right of remuneration"
– Telecommunications to the public: performer and maker
– Private Copies (all rights)
● Many rights are administered by collective societies which collect royalties on various uses
What is P2P?
● How courts will ultimately interpret P2P is unknown, as there are many different legal theories about what it is.
– P2P as a "communication to the public by telecommunications", where a copy is kept by recipient.
● Labels don't want this as it is just "Radio": only a "right of remuneration", and no right to sue or explore different business models
● This is what France was pursuing, extending existing statutory licensing systems to unauthorized non-commercial sharing of music
– P2P as simple "copying", similar to if physical media had been loaned.
● Is there anything "new" here?● Who is thought to make the copy matters -- is it a "distribution" of a
copy, or a private copy, or both?
http://www.flora.ca/documents/p2p-legal-theories.html
"Making available"
● Different people believe this means entirely different things
– Just clarifies that timing/location doesn't matter for existing rights?● "making available to the public of their works in such a way that
members of the public may access these works from a place and at a time individually chosen by them." (1996 WIPO treaties)
– A new right that exists in parallel with existing rights, allowing copyright holders to sue where they previously only had a "right of remuneration"
– (cynical) a way to sue P2P file-sharers without requiring evidence of infringing activities?
● Different countries are ratifying these treaties, but very little is known. While treaties in the past were used to harmonize on laws that were well established and understood, this article has no clarity.
"Legal protection for technical measures"
Article 18 WPPT (Similar wording in WCT)
Obligations concerning Technological Measures
"Contracting Parties shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by performers or producers of phonograms in connection with the exercise of their rights under this Treaty and that restrict acts, in respect of their performances or phonograms, which are not authorized by the performers or the producers of phonograms concerned or permitted by law."
Who are we protecting against?
● Technical Measures work by using techniques which protect the sender and the receiver from a third party attacker. It ensures that both parties can know for certain who the other is, and to also ensure that their conversation is private.
– Parties: sender, receiver, attacker
– Most uses are non-controversial
● Copyright holders are trying to use this under the presumption that there are only two parties: the sender and the attacker.
● The "attacker" is the owner of the device being used to access content
● In order to access the content, the locked content and the keys must be in the home!
Owner is Attacker of what they own?
● Legacy content industry is are under the impression that it is possible to build a safe that is so-secure that it can be sold to and put into the home of the bank robber.
● All this assumes that the owner of the device is not able to (or allowed to) "tinker" with the device, to learn how it works, or to be in control of what they own (UNUDHR Article 17.)
● Also impacts security (technology under control of owner)
● Analysis of 3 groups:
– Technically sophisticated infringer - Will always be able to extract key and unlock content
– Technically unsophisticated infringer - Only need to download already decoded file - DRM doesn't exist to them
– Law abiding citizen - their legal rights are restricted by the technology
What is: Digital Restrictions Management (DRM)
● technology that proponents "claim" protects copyright related rights.
● everyone must ask how this is accomplished, and what the costs are!
● Technological Protection Measures (TPM) limit access to authorized persons, and encode identity information (digital signatures, watermarks)
● Access Controls often compared to digital locks which keep people without keys out, denying access to unauthorized persons
● copyright holders want to give access to authorized persons
● copyright is a set of legal tools which limit what people who already have access can do with content
● Access Controls and copyright seek to accomplish different goals. One can't be used to protect the other
What is Software?Should it enforce contracts?
● Software is a set of instructions or rules followed by a computer
– Lessig suggests that code can be seen as a form of law or policy
● Who authors this policy? Is this policy transparent and accountable to those governed by it?
● DRM said to digitally enforce digitally encoded contracts
– Contracts can be legally enforceable, legally unenforceable, or even illegal
– Without the protected right to circumvent technical measures and publicly disclose what rules are being enforced, how can the public be protected from otherwise unenforceable or illegal contracts?
– Privacy, Property, Competition, Copyright, Security, etc...
Peer production,Peer distribution
● "Commons-based peer production"
– "Coase's Penguin, or Linux and the Nature of the Firm", by Yochai Benkler
– includes Free/Libre and Open Source Software (FLOSS)● "users' freedom to run, copy, distribute, study, change and improve the
software", without additional permission or payment.
– Creative Commons.
● Peer Distribution
– "And they tell two friends, and so on, and so on"
– (authorized) Peer-to-Peer (P2P) file distribution
FLORA.ca/floss.shtml
Contrast: PP/PD vs. Royalties
● motivation before creation/distribution (grant, advertising for other product, etc)
● no counting, levies.
● sharing as benefit, not threat
● unrestricted loaning of media
● remaining litigation not against customers, but legacy industry
● non-commercial infringement a concept of the past - battles between creators and users over
● unknown reward "after the fact"
● levies (imposing business models) and litigation (suing best customers)
● always in constant battle with user community (and modern creators) over requirement for counting, amount of "monopoly rent", and now attempt to have remote control over personal communications technology
Full Spectrum for software?
MonopolyRent?
Free/Libre,Open Source
Software
"Software
Manufacturing"
Non-Reciprocal
No NDA Non-DisclosureAgreement
GPL BSD Common"Proprietary"
Shared Source(some)
Reciprocal
YesNo
Modernbusiness models
● marginal cost is zero for intangibles like software, etc
– counting copies not necessary, and creates overhead/incentive for infringement
– finance fixed cost of development, reward for creativity
– resource development other than from counting copies
– leveraging lower costs of intangible inputs
– leverage zero marginal cost by re-partitioning revenue streams
● not the "bleeding edge", but fairly well established models used by many creators.
– FLOSS is fastest growing part of software economy
– many creators adopting Creative Commons to "skip the intermediaries", including musicians and book authors
DRM vs FLOSS
● "Free software is a matter of the users' freedom to run, copy, distribute, study, change and improve the software."
● DRM by definition restricts the users freedom to study and change the software! Limits what software is allowed to be authored that is capable of accessing content.
– The monopoly over who can make a copy of a record is being radically extended to include a monopoly over who is allowed to make a record player
● DRM can not be implemented in FLOSS.
– Is this why the incumbent "software manufacturing" companies support DRM, even though it will allow the incumbent content companies to have control over what software may be authored?
Other topics
● Plugging the "Analog Hole" (A-Hole)
● Policy simplification
● Cultural recycling date (Term)
● Fair use/Fair Dealings
● Institutional exceptions
● Extended/Statutory licensing
– "Educational use of the Internet"
● Crown Copyright
● WIPO reform, Development Agenda
● Sat elite radio and CanCon
