[d@DCC] Law as code: Understanding the dilemma around a royalty-bearing
russell at flora.ca
Fri Sep 3 12:00:57 EDT 2004
This is the first draft of an idea that I am looking for help on. I am
still trying to wrap my head around recommendations 4+5 of the Heritage
report. The more I discuss it with the legal community, the less sense I
can make out of what they are telling me.
Any help to bridge the gap is greatly appreciated! I think that trying
to understand their thinking so that we can have a reasonable conversation
between those who support and oppose these recommendations is important.
(BTW: HTML version is easier to read as there is indenting for
comments, and the reference numbers are where they should be.)
This is DRAFT. It will later be published to the Digital Copyright Canada
Law as code: Understanding the dilemma around a royalty-bearing Internet.
By Russell McOrmond1
Creative Commons License
This work is licensed under the Creative Commons Attribution License.
I have been trying to make sense out of a specific section of the Interim
Report on Copyright Reform2. I understand, but disagree about WIPO treaty
ratification which I believe will be more harmful to creators and
creativity and Canada3. What baffled me was the section titled "The use of
Internet material for educational purposes". It discussed various claimed
needs to license works on the Internet, appropriately dividing it into a
"public" part and a "private" part.
It then made two recommendations to solve the perceived problem.
The Committee recommends that the Government of Canada amend the Copyright
Act to allow for extended licensing of Internet material used for
educational purposes. Such a licensing regime must recognize that the
collective should not apply a fee to publicly available material (as
defined in Recommendation 5 of this report).
While not entirely sure why there is a need for any amendment, I support
this. Where copyright holders are due a royalty fee they should be allowed
to organize themselves into collectives so that customers can efficiently
negotiate licenses for an entire repertoire rather than per-item or
It was the second recommendation that indicated to me that something was
The Committee recommends that publicly available material be defined as
material that is available on public Internet sites (sites that do not
require subscriptions or passwords and for which there is no associated
fee or technological protection measures which restrict access or use) and
is accompanied by notice from the copyright owner explicitly consenting
that the material can be used without prior payment or permission.
There are two parts to this recommendation: whether or not something is on
the public Internet, and whether or not material is distributed
royalty-free. Both of these conditions are either true or it is false, so
I immediately decided that I should build a truth table as I normally do
in a situation where I need to analyze such logic. I will give each of the
possible positions a label and then discuss it.
| | Royalty Bearing | Royalty Free |
| Public Internet | A | B |
| Private Internet | C | D |
I will start with the C+D first, and suggest that there is no controversy
about whether any legal licensing terms can be used when communicating
privately between a copyright holder (or collective) and a customer. Work
can be both royalty bearing and royalty free, under almost any licensing
terms. In this case no amendment to the copyright act appears to be
Option B is also easy to understand, and contrary to the discussions in
the report constitutes the vast majority of the Internet. There seemed to
be a confusion in the report between when something was under copyright
(which most works are), and whether something is licensed royalty-free. It
is not the place of parliament to determine the business models used by
creators to exploit their material and moral rights within copyright, so I
had to take this as a typographical error.
Where the controversy is is option A. When the committee used the word
"AND" in their recommendation, they suggested that they considered both
'A' and 'B' to be valid conditions, while I disagree that 'A' is valid.
When I first read it I actually thought that 'A' was never attempted, so
was not relevant to talk about.
I spoke about this in my personal reply to the CIPPIC questions4. I
assumed the problem was that the lawyer community was putting too high a
requirement for indicating that the work was royalty-free. I suggested
that where there was no license agreement that certain obvious
royalty-free uses needed to be assumed authorized by the fact that a work
was authorized by the copyright holder to be distributed by a medium that
only worked when it was royalty-free.
As most copyright holders on the Internet are not lawyers, nor are the
teachers in the classroom, some simple non-legalistic clarifications were
Unfortunately when lawyers look at the copyright act they see
black-and-white: what is not authorized by the copyright holder is
prohibited, and the only way to authorize something is by a complex
legalistic copyright license agreement which few other than lawyers
understand. They see trying to clarify the royalty-free usage of Internet
materials as an exception to the copyright act.
As a non-lawyer who has been publishing materials on the public Internet
for more than a decade, mostly without any copyright license at all, I see
the issue very differently. When a copyright holder publishes on the
public Internet, whether they use a license agreement or not, they
understand that they are authorizing royalty-free verbatim distribution.
Much of the Internet functions by making copies from one node on the
Internet to another, and in many cases such as the public World Wide Web
there are very high-profile sites like Google and the WayBack Machine that
republish these works verbatim. If a copyright holder did not want to
authorize royalty-free verbatim distribution of their works, then they
must put their works on the private part of the Internet.5
In further discussions with a lawyer involved in this area of policy, I
came to realize that the problem was not entirely a matter of there being
a disagreement on the default license for Internet publishing when no
explicit license was used. I was told that there were royalty-based works
being published on what we had agreed to call the "public Internet"6, and
he gave me an example of a specific license agreement used by Spartacus
Educational in the UK.
The narrative text on this website is copyright. This means that any
school which copies the site for local use onto a school cache is in
breach of copyright. If your school wishes to copy the site in this way,
there is a tariff of charges. Please contact Spartacus Educational
spartacus at pavilion.co.uk for details.7
While I suspect such a notice would have no meaning in Canada given the
Supreme Court decision that a cache is not a copy for the purpose of the
Copyright Act8, it does raise an important question: can something be
published on the "public Internet" by a copyright holder, and still
require a royalty payment to access? While I believe the answer is no, it
appeared in my conversation with the lawyer that I needed to explain this
position better as he was not in agreement.
One of the most powerful tools I have found recently for explaining the
larger legal, political and social implications of computer software is
Lawrence Lessig's suggestion that "code is law"9. In this case I want to
reverse this and suggest that law can also be understood in terms of code.
For the purpose of this analogy, lets understand a license agreement as a
form of "code", an application program, that is executed within an
environment that includes hardware and the operating system. An operating
system provides various features that an application can use. Most
computer users know that different applications are compiled for different
operating systems: that an application written for Microsoft Windows will
not run on MacOS-X or Linux10.
It is my position that the same is true of license agreements and the
operating environments that these agreements are intended to be executed
When you are publishing a physical paper book, there are certain limits of
the environment. As one example, we have codified something generally
called the "first sale doctrine" which says that once a book has been
sold, that the new owner may treat this book as property and re-sell it to
someone else. A license agreement that disallowed the new owner from
reselling the book would not be considered valid. A book can also be lent
to friends, and cannot limit the number of times it is read: a license
agreement that said only one person was allowed to read the book a
specific number of times would be considered incompatible with that
In the case of the Internet and other digital communications media they
work by making copies in various places. When you look at a web-page a
copy was downloaded to your local computer's hard disk, and as you are
viewing it which also involved copies being made in the RAM of the
computer. In order for the Internet to function and be considered public
in any reasonably meaningful way, there is a necessity to assume that
certain activities, as a minimum, be authorized and royalty-free. To
require a royalty for certain activities is as incompatible with the
public Internet as the Linux version of OpenOffice.org11 is on Microsoft
What we have now is what looks like an impasse that has a few possible
One path is to recognize that different operating environments exist, and
to explicitly clarify the reasonable limits on license agreements that a
copyright holder must agree with in order to publish using a specific
medium. In the case of the Internet a copyright holder has the choice of
the "private Internet" where she can negotiate whatever terms she wants as
part of the subscription service protected by password or other TPM. If,
however, she wishes to publish materials on the public Internet then there
must be limits to the type of agreements that can be used, and that such
publishing itself constitutes authorization of specific royalty-free uses
required for the basic operations of the public Internet.
An alternate path is to operate as if the public Internet did not exist,
and that a copyright holder will receive legal support for an expectation
of royalty payments from people who accidentally visit their websites.
This type of policy would induce massive amounts of unintended copyright
infringement by people who had no reason to believe they could be expected
to pay a royalty or negotiate a license.
In order to protect the innovation that the Internet represents, we must
clarify policy to facilitate many different communications platforms to
exist. In the context of copyright reform this means clarifying limits on
what certain copyright holders can expect from these different platforms.
This will in the long term allow more freedom for copyright holders to
have a wider variety of platforms to communicate their works, some
royalty-baring and some royalty-free to match the wide variety of ways
creators wish to express their moral and material rights in copyright.
1Full contact details are at http://www.flora.ca/#contact (Accessed
September 3, 2004)
2Standing Committee on Canadian Heritage, "Interim Report on Copyright
(Accessed September 3, 2004)
3One part of the WIPO treaties is Legal protection for Digital Rights
Management (DRM) which I believe will be abused and cause more harm to
creators rights than good.
http://www.flora.ca/russell/drafts/drm-abuse.html (Accessed September 3,
4Russell McOrmond, "CIPPIC replies: Russell McOrmond (Webmaster for
(Accessed September 3, 2004)
6We were using the suggestion from the Heritage report where the public
Internet were "sites that do not require subscriptions or passwords and
for which there is no associated fee or technological protection measures
which restrict access or use".
7This "license" notice appears near the bottom of the page
http://www.spartacus.schoolnet.co.uk/SPmera.htm (Accessed September 3,
8Society of Composers, Authors and Music Publishers of Canada v. Canadian
Association of Internet Providers. Neutral citation: 2004 SCC 45. Judgment
referenced at http://www.digital-copyright.ca/node/view/427 (Accessed
September 3, 2004)
9This concept was first introduced in "Code and other laws of Cyberspace",
but has been used many times since by Lawrence Lessig
http://www.lessig.org/ (Accessed September 3, 2004)
10Some applications are ported and available for many operating systems,
and some operating systems have emulators for other operating systems, but
lets take the general case where you can't just install a program for one
operating system onto another.
11OpenOffice.org is a royalty-free near-equivalent of Microsoft Office
http://www.openoffice.org (Accessed September 3, 2004). Any policy makers
in Ottawa reading this may request a copy of a CD for Microsoft Windows
that includes this program along with many other FLOSS programs as part of
a CD we create for GOSLING Ottawa. http://www.goslingcommunity.org/
(Accessed September 3, 2004)
Russell McOrmond, Internet Consultant: <http://www.flora.ca/>
Get Creative: iCommons Canada Launch Party : September 30, 2004
http://digital-copyright.ca/node/view/461 Creative Commons, Open Access,
Free/Libre and Open Source Software : In Canada, Eh!
For (un)subscription information and posting guidelines please see
More information about the Discuss