Leaky faucets and copyright in Canada December 18, 2007
Posted by Kevin Smith in : Copyright Issues and Legislation , add a commentHere in North Carolina, a very severe drought finally motivated me to try to stop the drip in our kitchen faucet. I tried and tried to tighten the faucet enough to stop the leak, but simply could not tighten enough. Finally I faced the fact that a more comprehensive solution was required, and we replaced the old faucet with a new, leak-free fixture.
In Canada this month, folks trying to fix their copyright law have illustrated the same principle – it is often not enough to just tighten things up when what is needed is comprehensive repair. For some weeks rumors have flown that the Canadian government, acting through its Industry Minister, intended to introduce a copyright reform bill that would mirror the Digital Millennium Copyright Act here in the US. Both the US government and media interest groups in this country have been pressuring Canada to “normalize” its copyright law along the highly restrictive lines modeled by US Title 17.
As this article from the Electronic Frontier Foundation indicates, these plans rather backfired. A surprisingly large grassroots reaction to the proposal developed quite quickly, led by Professor Michael Geist of the University of Ottawa. Over 20,000 people joined a “Fair Copyright” Facebook site – a powerful testimony to the new awareness and concern over copyright regulation that is beginning to filter down to consumers. The result is that the Government decided to delay introduction of their bill, which the opposition had dubbed the “Canadian DMCA.”
We can but hope that this attention and advocacy will not abate in the new year, and that Canada will use this momentum to actually fix its law, striking an appropriate balance between the rights of creative artists and the needs of consumers, as well as educators and new creators. Simply tightening current rules will not work, as both my leaky faucet experience and the “finger in the dike” approach adopted by the RIAA indicate.
In the course of the campaign against the proposed reform law in Canada, Professor Geist and his colleagues created this YouTube video, which offers over two dozen suggestions about what ordinary consumers can do to influence the debates about copyright. These simply actions, like making sure that digital media retailers will accept returns if consumers discover DRM systems that they do not want to accept, could profoundly influence both legal policy and commercial practice. But if I could choose one that I wish would become a New Year’s resolution for many academics, it would be number 23 – “Read license terms.”
What are the exceptions to copyright? (weekly widget) December 14, 2007
Posted by Kevin Smith in : Copyright Information Notes , add a commentThere are a large number of exceptions to the exclusive rights given to copyright owners. In fact, over 1/3 of the text of the Copyright Act — sections 107 through 122 — are limitations and exceptions to those exclusive rights. All of these sections explain situations in which it is not necessary to obtain authorization from the copyright owner for a given use, even though that use would otherwise infringe one of the exclusive rights. Many of these exceptions deal with very narrow and technical matters, like the rebroadcast of television programs over cable or the reproduction of certain materials for use by the visually impaired. Most of the sections provide for exceptions to specific rights in the copyright “bundle.” Section 110, for example, lists several exceptions to the right to authorize public performances or displays, but it does not refer in any way to the other rights like reproduction or distribution. Only fair use, found in section 107, is an exception to all of the rights held by a copyright owner; when fair use applies, reproduction, distribution, performance, display and the making of derivative works may all be done without authorization.
For purposes of teaching and research, fair use and the first two provisions of section 110 are by far the most important copyright exceptions, and we shall discuss these three provisions in upcoming widgets.
Wolves in sheep’s clothing December 12, 2007
Posted by Kevin Smith in : Copyright Issues and Legislation, Copyright in the Classroom , 3commentsA couple of recent developments in the copyright arena remind us that all news is “spun” one way or another (including this blog, I suppose).
A story yesterday in the Chronicle of Higher Education reports that the Copyright Alliance is proposing a wiki site that will help broker permissions requests from academics; the idea is to have representatives of the content industry monitor the site for questions from professors in order to expedite the permissions process. Sounds good, since the process of asking permission is terribly cumbersome and the result is often nothing but silence from the rights holder. But wait; lets look at the example used in the story. A professor wants to show the film “Monty Python and the Holy Grail” to a class on British Humor. Why, we should ask, is that professor seeking permission at all? An in-class screening of a film within the curriculum of a non-profit educational institution is clearly permitted under section 110(1) of the Copyright Act; no permission is needed as long as a legally obtained (bought, rented or borrowed) copy is used.
The fact that this example is used raises some troubling concerns. This wiki would not be the first attempt by the content industries to try to inculcate a more narrow view of the copyright exceptions than is actually the law under the guise of helping with permissions. Even worse, this site could add more ammunition to the claim that as it gets easier to ask for, and pay for, permission for a particular use, the scope of the fair use get narrower. It is imperative that academic institutions and faculty members make their own fair use decisions and ask permission when truly necessary, not merely when there is a convenient hand out to take the money.
Last week also saw the introduction in Congress of a bill called the PRO IP (for “prioritizing resources and organization for Intellectual Property”) Act. In spite of the name, there are many who are pro IP who will not be happy with this bill. Its primary purpose is to ratchet up, once again, the penalties for copyright infringement, both criminal and civil. In the realm of civil damages, this bill would allow music companies to get separate damages for the infringement of each track on an album that has been downloaded without authorization; for a twelve track album the potential damages would rise from a maximum of $30,000 to $360,000. This would be a windfall for some in the content industries, but it is hard to see how it would advance the fundamental purpose of copyright law. I am not at all in favor of illegal file-sharing, but the chilling effect this draconian increase in potential liability could have on legal activities seems to outweigh the benefit it could provide. It is already the case that many people are unwilling to exercise their legal rights because of the scare-tactics used by content owners to prop up their failing business models.
The other major purpose of the PRO IP Act is to create two new bureaucracies in the federal government — a “White House Intellectual Property Enforcement Representative” and a new division in the Justice Department dedicated to IP enforcement. The former office seems to be modeled on the US Trade Representative as an adviser to the President and watchdog over US interests abroad. It is not clear whether there has been some felt need for these additional offices outside of the desire by the big entertainment industries to have as many bureaucrats arguing on their side in the copyright conflicts as possible.
There are comments on PRO IP, as well as some links, here at the Electronic Frontier Foundation site.
Property or privilege December 11, 2007
Posted by Kevin Smith in : Copyright Issues and Legislation, Open Access and Institutional Repositories, Scholarly Publishing , add a commentThe debate over how best to understand the odd notion of intellectual “property” is long-standing. Many find that an analogy between the products of intellect and creativity on the one hand, and property on the other, deeply inappropriate. There is no doubt that such an analogy is often badly abused. When the recording industry insists that music file-sharing be referred to as “theft,” for example, they ignore a fundamental difference between the physical and the intellectual realms. When physical property, a car, for instance, is stolen, the owner is entirely deprived of the enjoyment of that property. When music files are swapped, on the other hand, the owner may suffer a loss of value in her property, but she is not subject to the same total deprivation.
These issues are explored in a new book and an accompanying blog by
“I here offer a third view of copyright. I largely agree with my
friends on the left that copyright represents not so much a
form of property as it does a policy device designed to “promote
the Progress of Science and useful Arts” (as the Constitution
puts it). I thus call copyright a form of intellectual privilege.”
I look forward to following this debate, but at the outset I want to note that the analogy between IP and physical property is not all bad and is sometimes quite useful. The basis of James Boyle’s now classic article on “The Second Enclosure Movement and the Construction of the Public Domain” is, after all, just such an analogy. And I recently used the analogy with physical property, appropriately, I hope, if less brilliantly, to refute some of the parade of horribles that some have suggested will follow from a mandate to make the products of NIH funded research available in open access.
Worth noting — a public domain search engine December 8, 2007
Posted by Kevin Smith in : Copyright Issues and Legislation, Copyright in the Classroom , 2commentsAppropedia.org, which describes itself as “the site for collaborative solutions in sustainability, poverty reduction and international development,” has made available, in cooperation with Google, a beta version of a “public domain search engine.” The purpose, of course, is to help people find public domain material that they can use freely, without having to worry about copyright restrictions. Since such material can provide source for education, creativity and economic development, this project fits well into the self-defined mission of Appropedia.
It appears that the search engine focuses primarily on U.S. government material, which is in the public domain from the moment it is created. They have a nice explanation here of how they have gotten to the point of beta launch and where they hope to go. While this is a good start, there is a wealth of public domain material beyond the reach of this plan. Like the Google book search, this project is limited by the difficulty and expense of discovering what is and is not in the public domain. Ironically, while this search engine focuses on federal government materials, the Google Book project treats most government material as copyrighted works, since its definition of the public domain is limited to material published before 1923. Both definitions are radically narrow, and they emphasize the need to revise our copyright law to make the many works that are likely in the public domain (many so-called Orphan Works never had their copyright renewed, for example) easier and safer for the public to use.
In the meantime, however, this search engine, along with the more robust ability to search for material licensed under the Creative Commons licenses, offer great tools for helping scholars, teachers and others escape the straitjacket of our overly restrictive copyright law.
