[d@DCC] The battle of the anti-copyright exceptions

[Russell McOrmond]

On Wed, 29 Sep 2004, Sydney Weidman wrote:

> If internet content is zero-rated, in what sense would Access Copyright
> be over-collecting for their incumbent membership?

  To understand recommendations 4+5 I believe we need to split
recommendation 5 up into its two components and build a table.

               |  royalty based license | royalty free license |
---------------+------------------------+----------------------+
password site  |          A             |  B
public site    |          C             |  D


First part of recommendation 5 is the row:
    "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)"

Second part of recommendation is the column:
    "is accompanied by notice from the copyright owner explicitly 
    consenting that the material can be used without prior payment or 
    permission."



  Recommendation 4, keeping their 'AND' in between the parts of
recommendation 5, says that only section D is royalty-free and should not
be included in the setting of the levy that will be extracted from
educational institutions.


  I see the controversy as being about two things:

   i) Royalty based licenses in the password-free part of the Internet.  
Most of us who have been on the net for a long time believe this is an
invalid request.  By authorizing a work to be on the password-free part of
the Internet you are authorizing royalty-free verbatim distribution
(caches, mirrors, printouts) for any reader, just as by mechanically
creating a book you are understood as authorizing it to be read an
unlimited number of times by an unlimited number of readers.

  ii) Works with no license are being assumed to be royalty based.  This
is something I can not believe is being suggested, but is what I
understand from the letter of the current recommendations. If you don't
put a license on your work (which is most of my non-software works over
the years) then it is presumed that you are asking for a royalty and would
have to "lobby" a copyright collective (or the copyright board) to ensure
your works were not counted.

> Do you mean they would use "zero rated" status as a way of making the
> required changes palatable, and then raise the rate later?

  There is a claim that there are legitimate royalty-based works on the
password-free Internet that were authorized to be there by the copyright
holder.  This in my mind is false: works are either royalty-free
(authorized) or infringing (not authorized by copyright holder, and should
be removed -- not levied).  If a copyright holder put a work on the
password-free Internet and was expecting a royalty because of its
distribution, then these copyright holders need to be educated that this
is not how the password-free Internet works and that they should remove
their royalty-based works.

> I'm opposed even to zero rating, but an argument that someone is
> over-collecting doesn't make sense when you're saying that it's zero
> rated. Overstepping the limits of their power, perhaps.

  Any collection of royalties on the password-free Internet (first part of
the recommendation) is an over-collection, regardless of what license is
on the work.  They want to create a bureaucracy that would have to be
fought against to minimize the over-collection, and thus hide the fact
that there is no legitimate royalty collection in this category at all.

> Defining "derivative works" is like walking a tight-rope. On the one
> hand, derivatives represent the kind of follow-on creativity that the
> idea/expression dichotomy was intended to encourage. The transformative
> use is a use that needs to be as free from restriction as possible. On
> the other hand, the control of derivative works allows for licenses like
> the GPL and CC ShareAlike licenses. Like you, part of my interest in
> this is derived from my support for Free Software, and thus my
> sympathies are divided.

  I think this is introducing a different issue.  While the whole question 
of what constitutes a "substantial part" is an interesting one, I think we 
should resolve one issue in our mind at a time ;-)

  In my case my sympathies are not divided as I believe the idea of a 
derivative work is more clear than you have suggested.

> I think, however, that verbatim copying would seem more insidious to
> copyright reactionaries than derivative works, and so the contrast you
> present might puzzle rather than enlighten them.


  It might puzzle the reactionaries for the same way that the page at
http://www.google.ca/search?q=cache:www.parl.gc.ca/InfocomDoc/Documents/37/3/parlbus/commbus/house/reports/herirp01/herirp01-e.pdf
would freak them out.

  Here is the PDF version of the Heritage report, mirrored and translated
to HTML, for all view.  Did the government specifically authorize this
redistribution?  My answer to the question is: who cares.

  The copyright holder should not have the right to claim that they didn't
authorize that specific use.  By the Government of Canada authorizing that
PDF document to be put on the public (password free) Internet they need to
be understood to have authorized Google (and anyone else!) to not only
create a mirror (they call it a cache -- mirrors and caches will hopefully
be understood as the same thing in this context by the Supreme Court), and
also to have translated the document format from one form to another
without changing the content.

Note: There is a notice in the document that would suggest under a literal
interpretation of it and the copyright act that what Google is doing was
not explicitly authorized.  I would love to see the government sue Google
over it, and have the Supreme Court clarify the entirely inappropriate
nature of recommendations 4+5.


  I'm not talking about making new works from old works, but the much more
narrow idea of recognizing the way in which existing works are distributed
on the currently constituted public Internet.  We don't want to add too
many issues and try to discuss them all at once or we end up never
clarifying any of the issues.

  The problem that created recommendations 4+5 is that legacy copyright
holders think of the password-free Internet as having 'many copies' of
their works on it.  I believe this is an entirely wrong way to think of
it: this should be seen as "one copy" that just happens to physically
exist on more than one hard disk/computer at the same time.  Either a work
was authorized to be on the public Internet (IE: every "copy" on hard disk
is royalty-free and understood as authorized, regardless of what a license
agreement says), or it was not authorized in which case it should be
removed (not levied!).

  In order to understand the public Internet they must think of it is "one
huge book with many readers", some of which use corrective eye glasses
(IE: format conversion, like PDF to HTML), rather than the way they want
to think of it which is as many books and many readers, each of which they
(illegitimately) claim a right to receive a royalty from.

  It needs to be understood that treating each cache/mirror/etc as being
"a separate thing" on the public (password free, whatever you want to call
it) Internet is a radical rewriting of its constitution.  This Committee
seemed to either want to brush this radical change under the rug, or is
genuinely unaware of the fact that what they are proposing is a radical
constitutional change.

-- 
 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!
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