[d at DCC] Happy New Year, State of our Rights.

Russell McOrmond russell at c11.ca
Tue Dec 31 11:22:36 EST 2013

  I was going to blog something, but never managed to find the time to
write something formal.  I always feel like I need to add the proper
references, etc to a blog, but can just write informally in mailing lists
-- so here is what I was thinking.

  First, the right I worry most about is Technology Property Rights (TPR).
While there are many threats, the largest remains misguided changed to
authors rights (Copyright) legislation.

  It is important for us to remember that not only do authors rights not
conflict with technology property rights, but that in a digital copyright
sense they are interdependent.  Control over ones property for lawful
purposes is a primary aspect of property rights, and authors are dependant
on control over the technology they use to create and communicate their
works to audiences.   When a third party is in control of that technology,
that third party is in control of their creativity -- a threat that is many
orders of magnitude worse than any alleged threat from copyright

  Given we don't live in the fictional world of Harry Potter, and content
cannot make decisions, we need to always remind people that copy control
doesn't exist : in the real world what we have is computer control.  It is
always a question of who controls the computer as to what that computer can
do with data it can access.   It remains frustrating that the majority of
the population is not computer literate enough to recognize this
instinctively, and it remains an ongoing educational roll for the technical
community to deal with this literacy problem.

   Anyone who thinks that technological measures/DRM/etc are about reducing
copyright infringement is lacking computer literacy or has some hidden
agenda.  There is no credible evidence that these technological measurs
reduce copyright infringement, but considerable anecdotal evidence that
they increase copyright infringement.  This is in addition to the fact that
they are nearly always direct or contributory TPR infringements.

  For better or worse, software has been considered a literary work under
copyright law and thus those who author the software which controls our
computers are regulated under copyright.  Controlling our technology
property is primarily about software choice, both in the owners right to
choose what software runs on their computers as well as the rights of
software authors to be unencumbered by third party influences/corruption.
Free speech, as well as accountability and transparency concepts are even
more critical for software authors given the software we write effectively
regulates the lives of all the users who choose our software.

  When authoring the copyright policy summary for CLUE many years ago I
highlighted three threats to and within copyright law.
  - imposition of specific business models, with compulsory/extended
licensing (exceptions to copyright) being the more prevalent.
  - ties between the ability to access other creative works and specific
brands of hardware/software .  In my http://c11.ca/brief I identified
specific forms of this as a contributory TPR infringement.
  - non-owner locks applied to hardware/software, which I identified in
http://c11.ca/brief as a direct TPR infringement.

  While the last two are threats to TPR, all three are threats to authors
rights.  It has been sad to continue to watch groups and individuals who
allege to represent authors to promote these three threats.

  While there is no copyright bill currently in front of parliament, these
threats are current.   While the two 1996 WIPO treaties did not require the
legalization or legal protection of direct or contributory TPR
infringements, C-11 did legalize and legally protect some.   The government
could fix this mistake in the future, except that various treaties and
trade agreements seek to make that harder.   Leaked Trans-Pacific
Partnership "intellectual property" chapters push "access control"
technological measures, which are nearly always used as a form of
contributory infringement.   Tools required to remove non-owner locks are
being invalidly considered "circumvention devices" and prohibited rather
than understood as critically important TPR protection tools and
promoted/legally protected.   While the government promotes this as "no
change" to Canadian law, it is still harm as it creates a barrier to the
government providing property rights protection.

  The politics around these harmful policies hasn't changed much.   Various
intermediaries benefit from the policies, but it is groups and individuals
claiming to represent the very authors who are threatened by these policies
which are often the primary promoters.   As before we need to work with
other authors to try to fix the failures within their associations that
continue to promote policies against the interests of their own members.

  The two intermediary groups are:

  * Collective societies: these provide a specific financial service to
authors, which are sometimes necessary.  They do not, however, represent
authors any more than Scotiabank can claim to represent all their customers
in policy discussions.  The worst of the Canadian collectives at the moment
remains Access Copyright who continue to seek to impose themselves on all
authors.  Educational institutions are fighting back, rejecting alleged
(but fortunately not lawfully imposed) compulsory licensing and moving to
more direct licensing models with authors/publishers that bypass
collectives.  At the same time that AC is refusing to offer transactional
licenses, they are falsely claiming it is the educational institutions who
threaten creators economic interests when the threat is AC itself.

  * Technology companies: It is nearly always the manufacturer of the
device that retains the keys when non-owner locks are applied to devices.
These companies then have the ability to not only lock owners out of
choosing their own software but also making independent choices of any type
of content.  Authors (of software and non-software works) are then in a
situation where they have to negotiate with these technology companies for
"permission"  create content on non-owner controlled devices as well as to
reach audiences, which wipes out the negotiation power of authors.  Given
the relative size even the largest content companies have little leverage
in negotiations with larger technology companies.

Towards the future:

  As a community our work remains the same as it has been for decades.

* increase technology literacy : there remains people who believe the false
claims that "copy control" is a real technology, and are unaware of the
computer control implications.  It is hard for us to protect technology
property rights when policy makers aren't adequately technology literate.
When we are only given the time for a sound-bite, we can't still require
hours of literacy training before that sound-bite is understood.

* greater interactions with other rights groups : Many groups that allege
to represent authors remain promoters of policies which harm authors.  Some
of this is technology and business literacy issues, but some of it is a
problem of blind trust of people who speak the right language.  Collectives
have done a good job in convincing authors that they are comparable to
unions in collective bargaining to get better working conditions, when they
are in fact acting more like private banks seeking to irradiate competition
and increase bank fees.   As a community we need to recognize fellow
authors and technology owners as potential allies, rather than assuming
that because they are members of associations promoting harmful policies
that they understood and agree with these policies.

  * (Re-) Create our own rights groups. Independent technology owners
haven't successfully created our own association.  At one point I thought
CLUE would be that association, but it didn't grow.  We have allies in
CIPPIC and in US-based associations (EFF, FSF, etc), but we need Canadians
who can represent Canadians when they speak directly to Canadian policy
makers.    We also need to help members of existing author associations who
want to break away and create associations that won't be promoting policies
which harm their interests.   There are various writers groups which are in
critical need of reform or replacement.

  As technology intermediates (and thus regulates) more and more of our
lives in coming years, the question of who owns and controls this
technology becomes more critical.   This isn't something we can just ignore
and hope will turn out OK, or falsely believe that that is an inherently
open/positive nature of the technology.  Technology is policy neutral, and
is is up to us to ensure that these technologies have a net positive
influence on society rather than only having negative impacts.

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