Copyright: locks, levies, lawsuits or licensing? Part1: locks

(First published on IT World Canada blog)

Copyright is merely a series of activities which someone can do with human creativity that requires permission of the copyright holder to do legally. If you do one of these things without permission, the copyright holder has the right to sue you. (Lawsuits)

Years ago traditional copyright added an exception to the general rule which suggested that you no longer needed permission, as long as you made a payment that was decided by a government body — in our case, the Copyright Board of Canada. (Levies)

Recently some people have thought that digital locks would be a good substitute for copyright, whether permission or payment/levy based.

Which is best: locks, levies (part 2) or lawsuits (part 3)? Or maybe what you want to do is licensing (Part 4)? The only good answer is: it depends. One of the great failings of the copyright debate is the mistaken belief that all forms of human creativity can or should be treated the same, and that the law should be harmonized across all forms of creativity. The reality is that all creativity is not created, distributed or funded equally, and there are a full spectrum of options for creation, distribution and funding that work best for different types of creativity.

To keep this article a reasonable size, I will break it into three parts, with part 1 being on locks.

Locks

The most critical question that needs to be asked with digital locks is who actually owns what is being locked. While it should be obvious that you shouldn’t be allowed to apply a lock to something you don’t own, people doing this is in fact the source of the vast majority of the controversy when talking about “Technical Measures” (TM, TPM) or “Digital Rights/Restrictions Management” (DRM).

There are many companies which will add locks to copyrighted content without the permission of the copyright holder. While the most well known is Apple with their iTunes service, they are not alone.

Given this material is intended to be sold to other citizens, there needs to be limits on what the copyright holder can do with these locks to protect the rights of their audiences and the economy as a whole. One of the common abuses of these locks is to use them to impose specific brands of access technology. This removes the right of the audience to independently choose their own brands of technology, and is an anti-competitive behaviour which should be prohibited by our competition law. Copyright itself is a balance between the rights of various parties, and digital locks should never be abused to try to circumvent copyright law itself.

The WIPO Copyright Treaty, article 11, actually articulates this relatively well.

“Contracting Parties shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors in connection with the exercise of their rights under this Treaty or the Berne Convention and that restrict acts, in respect of their works, which are not authorized by the authors concerned or permitted by law.”

The “used by authors” part confirms that these technical measures should be applied by the copyright holder, and not a third party. The phrases “in connection with the exercise of their rights” and “authorized by the authors concerned or permitted by law” suggest that any legal protection for technical measures should be tied to activities that would otherwise infringe copyright, and that the balance in copyright (including its limitations and exceptions) should trump any abuse of a technical measure.

The Liberal Bill C-60 tabled in 2005 was fairly close to that on technical measures, and with amendments in the right direction could eventually have become a good copyright bill. The Conservative Bill C-61 tabled this month, however, has a prohibition against removing technical measures regardless of who owns what the technical measure has been applied to, or whether the technical measure is being removed for what would otherwise be lawful purposes.

More controversial than technical measures applied by copyright holders to their content is the application of technical measures to devices by other than their owner. While all the attention of the policy makers and politicians is on the first lock, it is the second lock that they need to be made aware of (See: The Two Locks of DRM).

Trying to clarify the law around these two locks is the basis of our Petition to protect Information Technology Property Rights. It calls “upon Parliament to prohibit the application of a technical protection measure to a device without the informed consent of the owner of the device, and to prohibit the conditioning of the supply of content to the purchase or use of a device which has a technical measure applied to it. We further call upon Parliament to recognise the right of citizens to personally control their own communication devices, and to choose software based on their own personal criteria.”

Note: If you agree with this statement, please sign the petition and get others to sign!

There are legitimate uses of technical measures appropriately applied by the owner which are very helpful to copyright holders.

For instance, a members-only Internet service would have an Internet server which is locked down, and which only allowed authorized people to access content stored on it. In this case the owner of the Internet server is the one applying the lock, and not a third party. The technical measure does not have to be complex, and can be as simple as a password.

The site doesn’t even need to be hard to break into, but sufficient to make it clear to anyone that membership is required and that non-members accessing the site clearly know that they are breaking the law. Many copyright infringements are inadvertent as the audience doesn’t know what they are and are not allowed to do, and technology is a great tool for communicating this information between copyright holders and audiences. If you eradicate inadvertent infringements, the negative public relations problem of launching lawsuits against infringers also goes away. In this case the technical measure is not a substitute for copyright’s requirement for permission, but a tool to clearly communicate that permission (or lack of permission).

Another example might be digital tuners rented by cable and satellite companies, or game consoles rented by game companies. The rental arrangement is one that we have a long history with as a society. We have existing legislation which would clarify the relationship between the owner device (who should be able to put legally protected locks on the device) and the person renting who should have their privacy and other rights fully protected. What we must never allow is a new undefinable relationship where someone allegedly “buys” something, but does not have ownership rights and responsibilities.

For more examples of different types of technical measures, please read: Technical Protection Measures (TPMs) and Educational Use of the Internet

The conversation around technical measures becomes so heated partly because different people are talking about different things. My opposition to legal protection for technical measures is entirely based on believing that technical measures applied by someone other than the owner must be prohibited. We have seen what happened in the United States with their DMCA law which has predominantly been abused to protect non-owner technical measures. I do not want to see the same critical mistake made in Canada.

While some of the proponents of this policy are trying to mislead people into legalizing and legally protecting non-owner locks, some people are simply wanting legal protection for appropriate uses of technical measures. I believe this legal protection should be added to property and contract law (which is provincial jurisdiction in Canada) to be more universally useful beyond the protection of copyright, and to avoid abuses by non-owners.