p2p news / 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 libraries.

The debate I took part in was at the end of the day. Steven Cohen from PubSub Concepts Inc and Librarystuff.net had spoken earlier about using RSS for conversations over the Internet, and how librarians should be keeping ahead of the curve in knowing what’s 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 there’d be a few areas of disagreement that I’d have with a lawyer from an administrative body for one funding model. Jones and I had a chance to speak before the panel, and she told me Access Copyright had matured quite a bit since conversations in the past. Access Copyright now recognizes alternative licensing models such as Creative Commons, something that’s new for an agency that, in its own language, always equated "licensing" with its collection methods.

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’s right to say 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 carrying out certain activities. If we take books as an example, with tangible books, most activities are unregulated by copyright. You can’t 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, and even use it as furniture, if you wish.

With digital material, to access the work and present it in a useful format, "copies" need to be made in the computer’s memory which, some lawyers and courts have presumed, are regulated copies. This means that while the tangible media on which the digital information is stored may be similar to a book, all aspects of audience access (meaning reading) is presumably regulated. This means that with digital works, there’s now a presumed "access right" for copyright holders, the right to exclude people from accessing a digital work 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’s regulated by the copyright act.

Unfortunately, extremists from the currently successful content and software manufacturing industries are working 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.

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 were: 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) cann’t 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’s 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 shouldn’t be downplayed in any way. The control 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 Steven Cohen asked, the question below 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 didn’t already exist, could they be created in the current political climate around copyright?

I gave a simple "Theft is theft" answer while Jones tried to claim there’d 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 instances we have the case where audiences that didn’t compensate the copyright holders 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’s possible in the p2p case to have more than one person accessing the same work at the same time, something that’s harder to do with the loaning of tangible media, I don’t believe this would have a significant affect on the rhetoric around how the questions were analysed.

Copyright holders would claim it’s a form of "theft" each time someone accesses a work without authorization (some say without payment, excluding non-royalty based business models, but that’s a topic for another time). We saw this type of rhetoric with heritage minister Liza Frulla announcing the ill-conceived Bill C-60 in an HMV claiming that accessing music without paying for it is no different than taking the tangible CD from the retail store. I can envision her 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’d be copyright holder who’d want to authorize the use, which is what Jones would be talking about. 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 don’t 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 Archive.org 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 the reason the major labels oppose 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’s "out of print" and unavailable at any price, their members would no longer control 95% of the market for recorded music.

It’s not infringement that they’re most worried about, but free market competition.

When CRIA president Graham Henderson says his opponents want "music to be free," he’s correct. But that’s 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 shouldn’t allow this type of obfuscation of the issues to go unchallenged in the copyright debate.

There’s 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 favour 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 or not 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’s only the CPCC and the recorded music industry that require modernizing legislation.

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

Should unauthorized non-commercial sharing/loaning be compensated? There’s a whole set of economic analyses that suggests 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 they’re under Access Control TPMs. The extremists got a "rental right" at WIPO in 1996, and thus in Bill C-60, so how much longer before they get a "loaning right" as well and are able to disallow library loaning entirely?

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 in which it’s getting harder all the time to determine what’s an infringing activity and what isn’t, how can we create and protect "lawyer free zones of creativity"?

Russell McOrmond - p2pnet contributing editor
[McOrmond is an independent author (software and non-software) who uses modern business models and licensing (Free/Libre and Open Source Software, Creative Commons).]

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This entry was posted on Friday, September 16th, 2005 at 5:07 pm and is filed under Uncategorized. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.

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