It’s funny where people pop up. One of the people I was on the Standards New Zealand Office Open XML Advisory Group with, Matthew Holloway, has just launched a site at http://creativefreedom.org.nz/. It relates, among other things to the recently passed Copyright (New Technologies) Amendment Act.

I’ve been aware of this Act as it passed through the parliamentary process and have maintained a bit of a watching brief on it given my interests in PoliTechLaw stuff. Anyway, the new site that Matthew has launched today gives me a chance to jot down some of my thoughts on the Act (and the other things Matthew mentions). I’m not going to discuss the process by which the Act was passed, that’s water under a shabbily constructed bridge.

So if you like a quick summary of my views here it is:

1. I find s92 of the Copyright Act 1994 (as amended) to be abhorrent however;
2. I wonder if some of the people similarly opposing these recent amendments actually live on planet earth… ISPs unilaterally turning off the internet at hospitals and schools!?! I mean honestly, less rhetoric and more solid argument is required.
3. While I support the concept that patent rights are provided for by way of an explicit social contract i am les inclined to apply the same logic to Copyright.
4. I see no problem in the use of DRM and other technological protection measures and;
5. I see fair dealing rights as a defence to an action in Copyright infringement and not as a right that can be exercised in a positive fashion (i.e. you must disable the TPM in this DVD so I can have Fair Dealing access to the content) however;
6. I do not agree with any form of legislation that restricts/prevents/prohibits tools and discussion for the avoidance or removal of technical protection measures.
7. I actually support DRM because I believe that it will encourage rights owners to deploy new business models that benefit me as a consumer.

Section 92 of the Copyright Act 1994 as amended and why I don’t like it.

But First A Little Help with the Law

As an aside before we get cracking on this the Creative Freedoms site is wrong when it talks about ‘The proposed Section 92 of the Copyright Amendment Act’. Firstly a proposed piece of legislation is a Bill, a passed statute (post the GGs Royal Ascent) on the books (as this is) is an Act of Parliament. Secondly, and more importantly, s92 of the Copyright (New Technologies) Amendment Act 1998 actually reads:

92 Rights and remedies in respect of apparatus, etc, for unauthorised reception of transmissions

• Section 228(1)(b) is amended by omitting “broadcasting service or cable programme service” and substituting “communication work”.

I think that what the authors are actually talking about is Section 53 of the Copyright (New Technologies) Amendment Act 1998 which inserts a New heading and new sections in the Copyright Act 1994. Those new sections are inserted after s92, hence the confusion. But, important to clear up I think.

s92 of the Copyright Act 1994, the substantive discussion

I’m all for the law throwing the book at Copyright infringement. I support strong criminal penalties and robust civil damage awards. However, I think that we tread a VERY slippery slope with s92 of the Copyright Act.

To interfere, by force, in the voluntary contractual arrangements of two private citizens is something that a Government should do reluctantly if ever. The strongly held view leads me to disagree with such tings and Employment law, but, we shall leave that more anarcho-capitalist set of discussions for another time. For the purposes of this discussions I’m happy to frame my non-interference views in more relaxed terms.

If the Government wishes to injunct the relationship between an ISP and it’s customers then they should do so before a court of law. That court may choose to apply such burden of proof as it deems appropriate given the nature of the situation. I am comfortable, as is the case with things like search warrants, with such applications being made ex parte, but, this is a matter for the Courts.

I can’t actually think of any similar intrusion into the rights of freely contracting parties on our law books. We certainly do have quite intrusive laws, the example that jumps to mind are Compulsory Treatment Orders, but, they are always guarded by the Judiciary and not for the government to exercise by fiat- they are most certainly not for the Government to abrogate to other citizens for enforcement.

I think this section of the Act is a nasty little piece of work and unlike the NBR I cannot be so pleasant as to ascribe it to the absent mindedness  of technological neophytes.

The Reality that doesn’t match the Rhetoric

So, having set out my strong opposition to this Section I will also have a go at some of the silly paranoia that’s being published. The CreativeFreedom site at http://creativefreedom.org.nz/s92.html opens with:

“Copyright infringement is wrong, but should people, schools, and hospitals have their internet connections and websites cut off due to accusations of copyright infringement?

111 calls, schools, businesses and artists rely on Internet Connections so it's not unreasonable to say that "Internet access is a basic human right"…”

I’m all for opposing this piece of law, but, saying things like the above is just silly. Flawed as the Act is, telecommunications companies will have robust processes for implementing it’s requirements. Just look at the brouhaha that went down after the Muliaga case (though don’t get me started on that one either!). Schools and hospitals will not be having their internet arbitrarily cut off and to these people to say so it utterly disingenuous, though not entirely unexpected. 

111 calls should not rely non the Internet. Consumer grade internet (and I include in that most businesses) is not a Telco level service. It breaks some times. Shit happens. Buy a cellphone.

As for Internet as a human right comment…

Patent Rights vs Copyright – IP as a social contract

On their What is Copyright page the CreativeFreedom folks wheel out the somewhat veiled Copyright as a Social Contract argument. Rousseau of course argued that even our concept of ‘Real Property’ is grounded in a Social Contract (see J-J Rousseau, The Social Contract and Discourses Chapter 9) and I’d love to have a more detailed philosophical argument with some of my more Marxist readers about property rights some, but now is not that time.

I tend to agree with the social contract theory as it applies to Patent Rights. My reasoning for this is that Patent Rights are enforceable as against someone who has developed a patented invention completely independent of the patent owner- thus this second inventor may be deprived the opportunity to recoup the fruits of his creativity. As a society, we have decided to implement the social contract of Patent Rights as we believe that the costs (as noted above) are outweighed by the incentives that Patent Rights provide to creativity. This puts me at odds with the majority of libertarian thinkers on this topic (e.g. Rand, Branden, Greenspan).

On the flip side I do agree with them on the matter of Copyright deriving from a mans right to the product of his mind. I encourage you to read Capitalism: The Unknown Ideal, a collection of essays by Rand, Branden and Hessen. If yu’re in WLG let me know and you can borrow my very tatty copy.

Treating Copyright as a social contract in the way that people like Lessig does is convenient in that it allows them to justify on moral grounds a much broader degree of free and unfettered access to the work of others. I have no doubt that this is what the authors at CreativeFreedom are getting at. It’s something I completely disagree with.

I want my.. I want my… DRM

People bitch and moan about DRM- if you don’t want it, don’t like it then don’t by it- we’ll talk about the ‘I should be able to enforce my fair dealing rights as against the copyright holder’ argument below.

So I actually think DRM brings with it some interesting new opportunities for innovative business models. I won’t go into this in great detail but things that appeal to me about DRM. It makes it easier for the license to use a Copyrighted work to be separated from the physical incarnation of that work. So for example I might be able to purchase a right to BT – Ima and exercise that right to access the content in a bunch of different ways- e.g. I could use the CD I own, I could get it via on-demand satellite in my car, if I lose/scratch/trash the CD I can get another copy, I can ‘lend’ my rights to a friend for a period.

This sort of innovation is unpalatable to rights owners without DRM and there it just won’t happen. I’m all for innovation in the IP space- DRM is one avenue of that innovation.

Fair dealing is a defence and not a right

Fair Dealing (Fair use under US Copyright law is a similar concept) provides for a defence to an action in copyright if an individual makes a copy for certain reasons or uses. It is CRUCIAL that you understand that this is a Defence and not a Right. To make it quite clear, let me describe with a couple of little examples each peppered with a little self-aggrandizing.

I’ve taken a lovely photograph- with my nice new Canon 5D Mk II camera- yup one of the first few to get one in NZ and many jealous friends still waiting… but anyway I digress… So, I’ve taken this picture and I come over to your hose and let you take a look at it. You hold it up to the light in your hands and tilt to see the marvelousness of my artistic creativity. You ask if you can borrow it and I say sure. While you are borrowing it you take a colour photocopy of it for inclusion in your PhD on amazing NZ photographers. This dear reader would be Fair Dealing. Were I to return, annoyed as hell at you having copied my photograph, you would have a defence were I to bring either a civil or criminal action in Copyright infringement.

The second scenario is similar but different.

I’ve taken a lovely photograph- with my nice new Canon 5D Mk II camera. So, I’ve taken this picture and I come over to your hose and let you take a look at it. You hold it up to the light in your hands and tilt to see the marvelousness of my artistic creativity. You ask if you can copy it to include in your upcoming PhD on amazing NZ photographers. I say no, I don’t want it copied. You call the Government and have them compel me to provide you with a copy so that you can ‘exercise your Fair Dealing rights to make a copy for academic purposes’. This dear reader would be the case if you had a Fair Use Right. It’s not as silly as it sounds- there are a large portion of the new Zealand populace who have a ‘right’ to a significant portion of my income each month. The Government comes around and enforces their right as against me.

I know it’s a bit of a contrived example, but, I think it makes clear my point as to the difference between the defence of Fair Dealing and a ‘Right to Copy for Fair Use’.

This means that I do not believe that there should be ANY requirement on rights holders to make their works available for copying or for fair use. If you are able to make a copy for Fair Dealing purposes then you will have a defence, but, you are not able to compel me to allow you to make a copy- for example by disabling a Technical Protection Measure such as DRM.

Let the Copyright Wars Rage

Having said what I have above about Fair Dealing, I do not think that Technical Protection Measures should have the protection of the law. The reason for this is they may prevent someone from making a copy that may be covered by a Fair Dealing defence. While there is no obligation that you can enforce against the rights holder to compel them to provide a circumvention of the TPM, there should likewise be no law preventing a rights user from attempting to circumvent that technical protection measure.

I quite like the Libertarian Commentary on the DMCA found here. I wrote a pretty decent (if I do say so myself) research paper on this topic for my 400 level advanced IP course at Uni…. I’ll try and dig it out.

Anyway… better get back and do some work. Interested in any comments or views of others.