[d@DCC] Idea exploration: hierarchy of creators' rights?

[Russell McOrmond]

  I am wanting to explore a few ideas "out loud" to see what other people
think.  Ignoring for the moment what existing legislation says, I would
like to think about what creators may think about specific categories of
activities which may be seen to infringe on their rights.

  For my interpretation of creators' rights you need to go to the United
Nations Declaration of Human Rights http://www.un.org/Overview/rights.html
and merge articles 19 and 27 together.  I interpret things such that
creators have the right to participate in culture, communicate their works
through media, and to receive moral and material rewards.  Obviously
rights are never absolute and must have a balance: "your right to swing
your cane ends at my nose".

  I'm talking about all creative citizens, not just those who were
traditionally thought of as constituencies in copyright reform such as the
participants in so-called "content industries".

  I believe there is a hierarchy of acts which can infringe these rights.  
I want to explore my own perception of this hierarchy and give some 
examples.

In the order of severity.


Activity: circumventing rights directly.

  I am thinking here of activities or laws that disallow creators from
creating and communicating works.  To me consequences of "legal protection
for TPM"  where software vendors and media companies will be granted
control over ICT is an example of this.  Creators will be denied the
ability to exercise any of their rights except through private sector
monopoly gate-keepers.

  In a "sane" world, fighting against "legal protection for TPM" would be
the #1 top priority of any group claiming to be protecting the rights of
creators (Example: Creators' Rights Alliance, Writers Union, etc).  
Unfortunately many of these groups thus far understand this policy
backwards.


Activity: Claiming for oneself a right which should be a creators.

  I am thinking here of things such as claiming to be the author of
something that someone else is the author of.  It could include a right
that is protected by government, but is granted to someone else.

  While controversial, I consider "work for hire" to be an example of
this.  If I sign away my rights as part of an employment contract this is
my decision to do so.  What I did not sign away in a contract should not
be taken away from me by governments.


Activity: making money infringing rights.

  An uncontroversial example might be making a copy of a software CD and 
then selling that CD commercially.

  Controversial might be policies such as Private Copying, "Tariff 22" or
other such policies where a levy/tariff is applied to a medium/media
regardless of the works communicated via it.  When any creator distributes
their work (royalty free or otherwise) on CDs or other multi-purpose
media, the recording industry is collecting a levy.  I consider this
activity by the CPCC and related collective societies to be almost as
offensive as if they were directly selling infringing copies of my work.

Note: I support collective societies collectively managing their own
rights including collecting royalties for their own works.  I just oppose
them collecting levies/tariffs on my works.


Activity: saving money infringing rights.

  This would be a case where works are communicated without the permission 
of the creator, where the alternative would have been to pay the creator.


Activity: infringing rights, but without harm.

  This would be a case where works are communicated without the permission 
of the creator, where the alternative would have been to not communicate 
at all.


  I differentiate these last two as in one case there can be a claim of 
economic harm, while there really is no economic harm in the latter.  I 
really wonder which of the two is more prevalent:

   a) In music there are now studies showing that non-commercial, 
      royalty-free P2P distribution is not harmful and can sometimes be 
      helpful.  Is P2P music distribution almost entirely a matter of the 
      last option, where there is no legitimate claim to economic harm?

   b) Where all works of the mind are non-rivalrous, when you factor in 
      "network effects" software might be appropriately considered 
      "anti-rivalrous".   Whether you pay a royalty for software or not, 
      even in the case of normally royalty-based software, the software 
      project receives benefit.


  I question just how genuine organizations like the "Canadian Alliance
Against Software Theft" is with their claimed activities in reducing
software copyright infringement.  There are 3 options to users of their
software: pay the CAAST member, not pay the CAAST member but use the
software anyway, and switch to alternative software.  The CAAST member
receives benefit from the first two option, and a loss in the third.  If
you couple this with the inclusion of the use of alternative software as
"piracy" in the CAAST/BSA studies you can see what their real program is.


  Each of us can probably think of other examples to put into each 
category.

  If someone else has already written about this, please let me know.  
Some of the absolute "we must protect the rights of copyright holders"  
becomes far easier to challenge when it becomes clear that in many cases
these are conflicting rights.

  In some cases there are people loudly claiming that their right to swing
their cane *includes* smashing my nose.

-- 
 Russell McOrmond, Internet Consultant: <http://www.flora.ca/> 
 "Make it legal: don't litigate, use creative licensing" campaign.
 A modern answer to P2P: http://www.flora.ca/makelegal200403.shtml
 Canadian File-sharing Legal Information Network http://www.canfli.org/

--
For (un)subscription information, posting guidelines and
links to other related sites please see http://www.digital-copyright.ca