Policy analysis/debates: Another list of 3.

[Russell McOrmond]

(Just some analysis re-posted from an email conversation  -- as always, 
feedback welcome)


  In previous discussions I have tried to make a distinction between 
creators/authors/etc, producers/publishers (the middle man) and 
citizens/fans/users/audiences.

  While the copyright act does not make this distinction, it has been very 
useful in policy discussions especially when we as a community try to 
discuss things with other creators who have noticed that the interest of 
the 'middle man' as copyright holders does not match their own.


  When talking about 'copyright', especially in conversations about TPM
and Peer-to-Peer networks, it is useful to distinguish 3 types of 
copying/communicating:

  1 - Private copying (never leaves the home).
  2 - Private/shared copying (no sale made, but shared with friends, P2P)
  3 - Commercial copying (for-profit, etc)


#1 should be entirely legal, with no regulations at all including
   non-publicly-displayed defacing/etc (IE: I don't think even moral
   rights should apply in someone else's private home).  This should not 
   have to be paid for (as is the case for the private copying regime) as
   there should be no 'Right of Remuneration' for what citizens do with
   works in their private home.

   In this group, not only should "Legal protection for TPM" not exist,
   but that fair dealings rights need to be offered more protection.
   What is at http://www.digitalconsumer.org/bill.html is a good start, 
   but doesn't go far enough as far as I'm concerned.

#2 is legitimately up for debate.  Is it cheap advertising, or is it a 
   lost sale?  Can it even be realistically monitored/stopped if a large 
   number of people disagree with the law?  It is a law like Jay-walking 
   which is really only an issue if everyone did it, and isn't worth 
   enforcing if only a few people do.

   Should there be a 'Right of Remuneration'?  How do you deal with 
   entirely different business models competing, some of which may not be 
   based on royalties at all?  What about independent creators not part of
   a collective?  Is this another case of big-government mandating 
   business models?

   What about making hundreds of copies of something to give them out to 
   people you simply don't know?  The question here is: what is your 
   motivation to pay to give something away to people you don't know?
   Are you doing so because you are a competitor and want to harm the 
   company?  If so, then this should be enforced under anti-Dumping laws 
   (I did a quick search, and couldn't find in our Competition Act - I 
   thought we had laws against dumping?)
   The point being, that there are times when the copyright act isn't the 
   right law for specific cases.

   Regardless of all this, copying isn't theft.

#3 should be illegal (with fair dealing restrictions of course) without 
   the authorization of the author (IE: traditional notions of copyright 
   restrictions).  I believe that if money is made by the
   commercialization of a work, that the creator should get a cut and
   decide the business model.

   Is the private copying regime a case that circumvents this (IE: in some
   ways, should be considered infringement), given it is a case where the
   Government and collectives are determining business models and not the
   creator?  A creators works can be copied, a tax collected, and yet the 
   creator receives no royalty (because the 'statistics' suggest they 
   aren't popular enough, or they aren't a member of the right
   old-boys...err...collective, etc).

   It should be noted that legal protection for TPM is unrelated to this
   group, and is aimed at private uses for works.  In a commercial
   setting, TPM's is pretty much irrelevant.  Given that the only form of 
   copying not really under debate doesn't need TPM's to enforce, why do 
   we have "legal protection for TPM" at all?




  The recording and motion picture industries believe that all should be
considered equivalent, and any copying/converting/viewing outside of their
absolute control should be entirely illegal.  The Canadian copyright act 
already makes a distinction for music where (1) is bought and paid for and 
(3) is still restricted by copyright, but the debate exists under (2).


  
  If not accepting the RIAA's version of (1) actually meant the death of
the industry, as they claim without proof, I simply cannot have any
sympathy for the industry.  If it were true, we would be better off as a
society with no more commercial music than to circumvent basic
communications and (real, not virtual or intellectual) property rights.
(IE:  I own the CD/DVD, I own the CD player/computer, and can rip them
apart, convert files, etc since they are my property)


---
 Russell McOrmond, Internet Consultant: <http://www.flora.ca/>
 Any 'hardware assist' for communications, whether it be eye-glasses, 
 VCR's, or personal computers, must be under the control of the citizen 
 and not a third party.   -- http://www.flora.ca/russell/

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