30 Days of DRM: 13 to 16
p2pnet.net News:- Michael Geists’s 30 Days of DRM highlights some of the exceptions and limitations that the government should include if a Canadian DMCA is introduced.
You can also contribute to the discussion through the 30 Days of DRM Wiki.
Below are items 16 through 13.
Go here for items 7 through 12, here for 6 and 5, here for 4 and 3, and here for 2 and 1.
30 Days of DRM – Day 16: System Repair (Circumvention Rights)
With news this week of a Canadian settlement of the Sony rootkit case, it is worth revisiting the admonishment that case elicited from Stewart Baker, the U.S. Department of Homeland Security’s assistant secretary of policy. As noted earlier this series, Baker reminded the recording industry that "it’s very important to remember that it’s your intellectual property – it’s not your computer. And in the pursuit of protection of intellectual property, it’s important not to defeat or undermine the security measures that people need to adopt in these days."
Baker’s focus was on keeping personal computers secure. There is another related concern associated with DRM and personal computers – taking steps to avoid system damage or malfunction as well as repairing products that have suffered damage from DRM. These unintended consequences are an inevitable result of widespread DRM use. There are dozens of DRM products and there will be instances of harm to some computer systems (computer systems broadly defined to include personal computers, handheld devices, DVD players, and other similar products). Canadians must surely have the right to protect and repair their personal computers, whose value far outweighs the cost of the product that can be the source of harm or damage. Consistent with a recommendation by the Australian Parliamentary review committee, Canadian anti-circumvention legislation should include a right to circumvent to avoid damage or malfunction, as well as to repair, computer systems.
30 Days of DRM – Day 15: Artistic Access (Circumvention Rights)
The copyright lobby frequently characterizes the use of DRM and anti-circumvention legislation as benefiting creators. Contrary to the rhetoric, however, a growing number of creators actively oppose DRM and the prospect of anti-circumvention legislation. The Canadian Music Creators Coalition justifiably generated enormous attention last spring when dozens of Canada’s leading musicians came together to form a new coalition opposed to suing fans, using DRM, or establishing anti-circumvention legislation. The Appropriation Art coalition, launched soon afterward, may have less noteriety but they combine to form a powerful voice. Consisting of more than 600 artists, curators, directors, educators, writers, associations and organizations from the art sector, the coalition features artists that have collectively won dozens of major awards including eight Governor General Awards in Visual and Media Arts.
Despite these credentials, the group incredibly received little more than a form letter from Bev Oda, the Minister of Canadian Heritage. Perhaps that is because the Appropriation Arts coalition tells a much different story from the copyright lobby.
As actual artists, their concerns are with a copyright law that provides insufficient "certainty of access." In a public letter to the Ministers, they argued that:
Creators should enjoy the support of the law, and not have to work under conditions of uncertainty. The work we speak of here does not compete with that of its subject, nor does the value of this work derive from the value of its subject. The time has come for the Canadian government to consider replacing fair dealing with a broader defense, such as fair use, that will offer artists the certainty they require to create.
On the matter of anti-circumvention legislation, they believe that:
The law should not outlaw otherwise legal dealings with copyrighted works merely because a digital lock has been used. The artists we represent work with a contemporary palette, using new technology. They work from within popular culture, using material from movies and popular music. Contemporary culture should not be immune to critical commentary.
The current copyright system does not provide thousands of Canadian artists with the rights they need. There are several potential solutions including an expanded fair dealing right and the addition of a parody user right. Once the issue is addressed, the certainty of access should not be taken away through anti-circumvention legislation. Artists require access in analog and digital worlds and therefore a circumvention right of artistic access is needed.
30 Days of DRM – Day 14: Private Copying (Circumvention Rights)
Several postings have noted that Bill C-60, the last failed attempt at copyright reform, sought to link anti-circumvention with copyright infringement by only making it an infringement to circumvent for the purposes of copyright infringement (thereby preserving user rights such as fair dealing). There was a notable exception, however – private copying. By excluding private copying, the bill made it an offence to circumvent a TPM (such as a copy-control on a CD) even if the purpose of the circumvention was to make a private copy. The rationale behind the exclusion was that the private copying system is designed to be compensatory, with the rate reflecting the amount of copying that is actually occurring in the marketplace. Supporters of the private copying exclusion argue that if copy-controls become pervasive, the amount of private copying will decline and so will the private copying levy.
This is pure fiction.
So long as the private copying levy remains in place, the provision creates a right (as described by the Canadian Private Copying Collective) to make personal, non-commercial copies of sound recordings and anti-circumvention legislation should not be used to take away those rights. In the event of widespread DRM use, Canadians will undoubtedly still be left footing the private copying bill for many years as the Copyright Board seems intent on mediating the levy process by striking rates somewhere between competing proposals and the CPCC is unlikely to give up on the levy (indeed, the CPCC has acknowledged that even the levy on cassette tapes is unlikely to go away even though hardly anyone uses them to copy music). This week’s release of a CPCC survey, which implausibly suggests that Canadians are comfortable with levy rates that comprise more than half of the retail sales price of blank CDs, serves to reinforce the absurdity of the current system where Canadians pay tens of millions in levy fees, yet cannot even copy music onto their iPods or avoid being wrongly labelled as pirates by the recording industry.
I have some sympathies for alternative compensation systems such as the private copying levy. However, the reality today is that the system is not working. To simultaneously collect on the levy while blocking the right to make personal copies on CDs through a combination of copy-controls and anti-circumvention legislation is simply wrong. While the best course of action is to either fix or drop the private copying levy system, in the meantime, anti-circumvention legislation should include a private copying circumvention right that allows Canadians to make the personal copies for which they have already paid.
30 Days of DRM – Day 13: Criticism, Review and News Reporting (Circumvention Rights)
Yesterday’s posting covered the research and private study side of fair dealing. The other major component of the fair dealing user right is contained at Sections 29.1 and 29.2 of the Copyright Act, covering criticism, review, and news reporting. Both sections permit fair dealing in a work for those purposes provided that the source is identified. These user rights are equally an integral part of the Copyright Act and should not be unduly constrained.
Indeed, with the emergence of citizen journalism and user generated content, these rights have assumed even greater importance.
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