Copyright is an important part of my work: every time I sign a work-related contract, I have to make sure that I don’t sign away the rights of previous works to which I retain the rights, nor the rights to work that I do outside the scope of the contract I am signing at that point. I spend a significant amount of time and energy creating copyrighted material and some of that material has to remain mine. Like any copyright bill would, bill C-32 provides a framework to fall back on when cases aren’t covered by contract and now, it looks like it’s on its way to be passed.

If the question is whether, if you buy a CD, you buy the right to do what you want with both the plastic disc and the data (music, for example) contained on it, I would say the answer is probably “no”. For example: the music I use in my podcast is in the public domain. The reason why I use public domain music is because I can use that music for my podcast without paying for it, whereas I would have to get a licence to do the same with copyrighted material. The plastic disc, on the other hand, is yours. If you want to use it as a frisbee you’re free to do so. The reason for that is because there are rights attached to the work contained on the disc, that have not been given over to you when you bought the disc. Those rights include moral rights - which cannot be signed over to you - and copyright.

People who want to be able to use the work contained on the disc as they please - as sound tracks for their own movies, ads or other works, don’t want copyright reform - they just don’t want copyright at all.

As argues by James Gannon in the Toronto Star: “TPMs were developed as a response to this. As more technologies were developed that allowed people to copy works on a massive scale, publishers, large and small, started coming out with TPMs to protect their artists’ works and prevent unauthorized uses of their art.” Of course, most of those measures have since been broken and legal measures have become necessary to protect the measures that had become necessary to protect the works when the legal measures to protect the works no longer worked.

The Canadian Copyright Act that is currently in force, defines copyright as:

the sole right to produce or reproduce the work or any substantial part thereof in any material form whatever, to perform the work or any substantial part thereof in public or, if the work is unpublished, to publish the work or any substantial part thereof, and includes the sole right
(a) to produce, reproduce, perform or publish any translation of the work,
(b) in the case of a dramatic work, to convert it into a novel or other non-dramatic work,
(c) in the case of a novel or other non-dramatic work, or of an artistic work, to convert it into a dramatic work, by way of performance in public or otherwise,
(d) in the case of a literary, dramatic or musical work, to make any sound recording, cinematograph film or other contrivance by means of which the work may be mechanically reproduced or performed,
(e) in the case of any literary, dramatic, musical or artistic work, to reproduce, adapt and publicly present the work as a cinematographic work,
(f) in the case of any literary, dramatic, musical or artistic work, to communicate the work to the public by telecommunication,
(g) to present at a public exhibition, for a purpose other than sale or hire, an artistic work created after June 7, 1988, other than a map, chart or plan,
(h) in the case of a computer program that can be reproduced in the ordinary course of its use, other than by a reproduction during its execution in conjunction with a machine, device or computer, to rent out the computer program, and
(i) in the case of a musical work, to rent out a sound recording in which the work is embodied,
and to authorize any such acts.

but that doesn’t tell us what copyright is for. The Supreme Court of Canada has done that, however, as noted by Daniel J Gervais in the University of Ottawa Law & Technology Journal:

In three recent cases, the Supreme Court of Canada provided several pieces of the Canadian copyright policy puzzle. We now know that the economic purpose of copyright law is instrumentalist in nature, namely, **to ensure the orderly production and distribution of, and access to, works of art and intellect**. The Court added that copyright can not enter carelessly into the private sphere of individual users. By targeting end-users in recent lawsuits, copyright holders have also found out that it is difficult to enforce a right that has not been properly internalized. After reviewing the Supreme Court trilogy of cases, the paper explores the importance of the moral imperative and the almost nonexistent role of Parliament in setting policy at the macro level. In Part 3, the paper proposes two concrete ways to align copyright law with its underlying purpose, especially on the internet. The first is to make existing rights easier to manage by facilitating collective management using the Extended Repertoire (or extended collective licensing system). A compatibility analysis with applicable international norms is provided. The second is a recasting of the copyright rights based on the effect of the use made of the work, not its technical nature.

"The Purpose of Copyright Law in Canada"

If the purpose of copyright is economical, that means that copyrighted material must necessarily be scarce in order for copyright to be efficacious. I.e. having exclusive right on something of which many versions exist freely doesn’t benefit the rights-holder much. This is how copyright law can stimulate creativity: in order for the copyright to be efficacious, you have to hold the right to something that is relatively scarce and that others might want. Copyright allows the owner of the right to prevent others from appropriating whatever benefits are created from the distribution of the copyrighted work.

There are limits to those rights, however, which are due to the economic nature of the rights and the balance that must be made with the interests of the public:

Excessive control by holders of copyrights and other forms of intellectual property may unduly limit the ability of the public domain to incorporate and embellish creative innovation in the long-term interests of society as a whole, or create practical obstacles to proper utilization. This is reflected in the exceptions to copyright infringement enumerated in ss. 29 to 32.2, which seek to protect the public domain in traditional ways such as fair dealing for the purpose of criticism or review and to add new protections to reflect new technology, such as limited computer program reproduction and “ephemeral recordings” in connection with live performances.

Théberge v. Galerie d’Art du Petit Champlain inc., 2002 SCC 34, as cited in "The Purpose of Copyright Law in Canada", D.J. Gervais; UOLTJ Vol 2 issue 2, 2005; pp. 315-56

As Gervais notes, “[the] Court tells us that users, who are also very often “owners of a copy” of a protected work, have “rights.” Some of those rights follow from their ownership of that copy. Other rights stem from exceptions that limit the reach of the author’s exclusive rights. It is the combination of both sets of rights that creates the appropriate “balance” in copyright law”.

Where the balance lies relies on the nature of the work as well:

“This exercise of skill and judgment will necessarily involve intellectual effort. The exercise of skill and judgment required to produce the work must not be so trivial that it could be characterized as a purely mechanical exercise.”

CCH Canadian Ltd. v. Law Society of Upper Canada, 2004 SCC 13, as cited in "The Purpose of Copyright Law in Canada", D.J. Gervais; UOLTJ Vol 2 issue 2, 2005; pp. 315-56

What many opponents of copyright reform - or copyright in general - seem to forget as they cite Free/Libre Open Source Software (FLOSS) as reasons for their opposition to C32 is that FLOSS only works because copyright works: the “liberation” that software undergoes when it hooks onto GPLed code is only possible because the copyright license that applies to GPL software dictates that it can only be used with software that is equally free.

Personally, much of the software I write is free software but some of that software is used in non-free software under a commercial license. Contrary to what Richard Stallman might believe, I don’t think non-free software is inherently unethical and I don’t see it as a “social problem” - I see it as a business model - and I see TPM the same way.

Ethics and TPM

Technological Protection Measures (TPMs) are based on the idea that the creator of a work owns the work and should retain at least some control over the work. When a copy of a work is sold, the right to sell that copy is not necessarily sold with it, nor is the right to make other copies or to create derivative works of that copy. TPMs prevent copyright infringements by making them much harder to do.

TPM makes it possible for publishers and creators to create more convenient ways of obtaining legal copies of a digital work: you can now download movies legally from different locations, if you buy a license. That license will allow you to decrypt the movie and watch it on your computer or portable device. If TPM had not been a possibility, we’d likely still have to buy a physical carrier. Similarly, TPM also makes it possible to rent movies on-line - so now you don’t even have to get out of bed to go to the local video rental!

That doesn’t necessarily make TPM a Good Thing: there is wide debate on the ethics of TPMs and, perhaps unsurprisingly, the divide seems to split producers from consumers.

TPM imposes restrictions on what users can do with content they’ve paid for. Those restrictions are intentional and they aren’t new: those same restrictions, in fact, would apply without the TPMs if those users abide by the contracts they’ve signed. More often than not, a producer would be more than willing to grant more rights than those in the copyright license - if the price is right.

If that is unethical, the way business works is unethical: corporations have as their sole purpose to make money for their shareholders. In the case of the music industry, they do that by obtaining the rights on artwork and selling parts of those rights. The value they (supposedly) add to the product is the carrier (CD, DVD, etc.), marketing and distribution, which would usually be too much for an individual artist to take care of. Arguably, this is about to change: more and more artists are taking their affairs into their own hands, sometimes with success. The pressure of this democratization of the industry - made possible mostly through the new communications media such as the Internet - will eventually (hopefully) lead to more equitable contracts between labels and artists.

Of course, even if we do deem that the purpose of corporations is ethical (which is up for debate), that doesn’t mean that every way of doing business to obtain that goal is also ethical. In my opinion, fair use provisions should be part of any copyright license such that the public domain has some benefit, even from TPM-protected content. Libraries should be able to catalog TPM-protected content without infringing on copyright. C-32 contains provisions to allow that. Similarly, research into cryptography can be hampered by TPMs. The ethics of hampering any kind of legitimate research for the benefit of the public domain is also debatable, but C-32 also addresses that issue. What other legitimate uses can be hampered by TPMs that are not protected by the bill can be dealt with by appeals to the government, or to the judge - or by dealing directly with the copyright holder. After all, the copyright holder, who is presumably in good faith, has the power to give you a copy that is not protected by TPM if you ask for it - and come up with the right arguments to get one. Those arguments do not necessarily consist of loonies.

Basically, TPMs keep honest people honest as it makes it (much) harder to break the license agreement. Whether the license agreement itself is ethical depends on whether the business model is ethical.

TPMs and Privacy

It is possible for a TPM implementation to know which copy of a copyrighted work is used by whom, where and when. As it is possible to know that, it is also possible to keep that data around and to derive knowledge from that data - knowledge that the user doesn’t necessarily want the copyright holder to have. Usually, when such technologies are used, the user signs on to a privacy policy that aims to explain how private data is used. Those policies usually consist of anonymizing the data before it can be mined, not storing the relations between different datasets and promising not to be evil. It has arguably become impossible to forgo signing up for such policies and still use the Internet in any meaningful way and accidental disclosure of private data is a real risk once TPMs have access to such data - even with the best of privacy policies in place.

It all comes down to a matter of trust between the content provider and the content consumer.

This leads me to two topics I will have to reflect on a bit: ethics in software engineering and trust. I’ll post on those subjects later.