Copyright is merely a series of activities which someone can do withhuman creativity that requires permission of the copyright holder to dolegally. If you do one of these things without permission, thecopyright holder has the right to sue you. (Lawsuits)
Years ago traditional copyright added an exception to the generalrule which suggested that you no longer needed permission, as long asyou 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 goodsubstitute 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 mistakenbelief that all forms of human creativity can or should be treated thesame, and that the law should be harmonized across all forms ofcreativity. The reality is that all creativity is not created,distributed or funded equally, and there are a full spectrum of optionsfor creation, distribution and funding that work best for differenttypes of creativity.
To keep this article a reasonable size, I will break it into three parts, with part 1 being on locks.
The most critical question that needs to be asked with digital locksis who actually owns what is being locked. While it should be obviousthat you shouldn’t be allowed to apply a lock to something you don’town, people doing this is in fact the source of the vast majority ofthe controversy when talking about “Technical Measures” (TM, TPM) or“Digital Rights/Restrictions Management” (DRM).
There are many companies which will add locks to copyrighted contentwithout the permission of the copyright holder. While the most wellknown is Apple with their iTunes service, they are not alone.
Given this material is intended to be sold to other citizens, thereneeds to be limits on what the copyright holder can do with these locksto 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 imposespecific brands of access technology. This removes the right of theaudience to independently choose their own brands of technology, and isan anti-competitive behaviour which should be prohibited by ourcompetition law. Copyright itself is a balance between the rights ofvarious parties, and digital locks should never be abused to try tocircumvent copyright law itself.
The WIPO Copyright Treaty, article 11, actually articulates this relatively well.
“Contracting Parties shall provide adequate legal protection andeffective legal remedies against the circumvention of effectivetechnological measures that are used by authors in connection with theexercise of their rights under this Treaty or the Berne Convention andthat restrict acts, in respect of their works, which are not authorizedby the authors concerned or permitted by law.”
The “used by authors” part confirms that these technical measuresshould be applied by the copyright holder, and not a third party. Thephrases “in connection with the exercise of their rights” and“authorized by the authors concerned or permitted by law” suggest thatany legal protection for technical measures should be tied toactivities that would otherwise infringe copyright, and that thebalance in copyright (including its limitations and exceptions) shouldtrump any abuse of a technical measure.
The Liberal Bill C-60tabled in 2005 was fairly close to that on technical measures, and withamendments in the right direction could eventually have become a goodcopyright bill. The Conservative Bill C-61tabled this month, however, has a prohibition against removingtechnical measures regardless of who owns what the technical measurehas been applied to, or whether the technical measure is being removedfor what would otherwise be lawful purposes.
More controversial than technical measures applied by copyrightholders to their content is the application of technical measures todevices by other than their owner. While all the attention of thepolicy makers and politicians is on the first lock, it is the secondlock 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 technicalprotection measure to a device without the informed consent of theowner of the device, and to prohibit the conditioning of the supply ofcontent to the purchase or use of a device which has a technicalmeasure applied to it. We further call upon Parliament to recognise theright of citizens to personally control their own communicationdevices, 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 Internetserver which is locked down, and which only allowed authorized peopleto access content stored on it. In this case the owner of the Internetserver is the one applying the lock, and not a third party. Thetechnical measure does not have to be complex, and can be as simple asa password.
The site doesn’t even need to be hard to break into, but sufficientto make it clear to anyone that membership is required and thatnon-members accessing the site clearly know that they are breaking thelaw. Many copyright infringements are inadvertent as the audiencedoesn’t know what they are and are not allowed to do, and technology isa great tool for communicating this information between copyrightholders and audiences. If you eradicate inadvertent infringements, thenegative public relations problem of launching lawsuits againstinfringers also goes away. In this case the technical measure is not asubstitute for copyright’s requirement for permission, but a tool toclearly communicate that permission (or lack of permission).
Another example might be digital tuners rented by cable andsatellite companies, or game consoles rented by game companies. Therental arrangement is one that we have a long history with as asociety. We have existing legislation which would clarify therelationship between the owner device (who should be able to putlegally protected locks on the device) and the person renting whoshould have their privacy and other rights fully protected. What wemust never allow is a new undefinable relationship where someoneallegedly “buys” something, but does not have ownership rights andresponsibilities.
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 partlybecause different people are talking about different things. Myopposition to legal protection for technical measures is entirely basedon believing that technical measures applied by someone other than theowner must be prohibited. We have seen what happened in the UnitedStates with their DMCA law which has predominantly been abused toprotect non-owner technical measures. I do not want to see the samecritical mistake made in Canada.
While some of the proponents of this policy are trying to misleadpeople into legalizing and legally protecting non-owner locks, somepeople are simply wanting legal protection for appropriate uses oftechnical measures. I believe this legal protection should be added toproperty and contract law (which is provincial jurisdiction in Canada)to be more universally useful beyond the protection of copyright, andto avoid abuses by non-owners.