Sunday, November 19, 2006

fair use under threat

There are 3 positions on copyright:
  1. Copyright as the natural, inalienable right of the owner
  2. Copyright as a balance between the rights of the owner and the rights of society
  3. Copyleft, expand the commons
I support (3), then (2) if (3) is not immediately possible and am opposed to (1) in all circumstances. Some people believe that copyright law is mainly about the first position. But Lessig has pointed out that historically the second position has been the dominant tradition and that only recently, with the new ease of copying digital works over the internet, has the first position become strengthened through law.

The music industry and the movie industry support the first position. In today's world this means that they will have to control our machines and invade our privacy. Because the first position means that these industries will have to have control over our CD and MP3 players, our VCR and DVD players. As well as being an invasion of the natural rights of the consumer to control their property (do you own the machine you buy?) it also kills innovation. Rip, mix and burn is creative work. See the Linux Australia submission by Rusty Russell to the Australian Copyright Act 2006.

The second position is legally more complicated because it involves balance and consideration of both the rights of both the owner and the rights of society.

In this context the issue of "fair use" is being debated in the Australian Senate. I've read some of the submissions and the one from google was very helpful in understanding this.

The common, although vague understanding of fair use is that it's alright to duplicate a part of a book, CD or video for educational or research purposes because that serves a useful social purpose.

Apparently there is some danger that the whole notion of a generalised fair use clause will be thrown out and replaced by a series of specific "exceptions". For instance, the Australian Copyright Councial is lobbying for this. Note the use of the word "exceptions" which implies that copyright is by default "owners exclusive rights" and not a social balance between owners rights and society's rights.

For example there are fair dealing provisions for research and study in relation to the reproduction of literary, dramatic and musical works. But the general concept of "fairness" has now been replaced "with strict rules that limit copying of most hardcopy and electronic documents only to specific amounts. One page more than this amount, no matter how obscure or difficult the book is to obtain, and you risk liability." (see copyright jails by Brian Fitzgerald)

Google presents a very strong and convincing case for maintaining fair use ("safety valve") provisions as well as exceptions.
... it is difficult to identify all current problems ... and impossible to prophesy future problems . An exclusive list of specific exemptions will inevitably run afoul of technology's rapidly changing reality ... such boundaries are inherently artificial and are not in accord with the nature of creativity ... Creativity is sui generis (of its own kind, unique in its characteristics, cannot be included in a wider concept) and contextual. An arbitrary limit on the number of words that can be copied ... runs roughshod over the way innovation arises ..."
It's disturbing that fair use is under threat.


Daniel Livingstone said...

Hi Bill,

Agree with most of that - I'm very strongly in favour of fair use, and not happy that to exercise fair use for some media I would have to break laws on circumvention of copyright protection.

I subscribe to emusic - so I can both honestly know that I'm paying the creators of the music I download, while also getting DRM free versions of the music. I also try not to buy CD's that have copy protection on them, but that can be tricky!

Bill Kerr said...

hi daniel,

Thanks for the comment. The more I look at DRM and so called trusted (treacherous) computing concepts, the worse it seems. This FAQ by Ross Anderson scares me seriously. I'm horrified at the possibility that the information architecture that supports innovation is in the process of being covertly destroyed as we speak.