Of Social Contracts and Government Sell-outs - Free Trade Area of the Americas Treaty (updated)
Today's Digital Environment
Today, we have digital reproduction means on most computers that rival the abilities of facilities costing millions of dollars in decades past. This has the publishers up in arms over the potential (and in some cases real) loss of the need for their business.
Today we also have the means for a Copyright holder (or publisher) to prohibit fair dealing (abstraction of a portion of a work in order to critique it or comment on it or even aid yourself or others in deciding to purchase a copy) view the work (read a book or article) after a particular period, or even re-sell the legally purchased copy of the work.
In my mind, putting a work out in such a fashion is not "publishing" in the sense that the Copyright Act of Canada defines it or the Parliament of Canada intended it. It is more akin to disseminating a trade secret.
| 2.2 (1) For the purposes of this Act, "publication" means (a) in relation to works, (i) making copies of a work available to the public, (ii) the construction of an architectural work, and (iii) the incorporation of an artistic work into an architectural work, and (b) in relation to sound recordings, making copies of a sound recording available to the public, but does not include (c) the performance in public, or the communication to the public by telecommunication, of a literary, dramatic, musical or artistic work or a sound recording, or (d) the exhibition in public of an artistic work. |
Hmmm... seems to me that a work with digital rights management attached to it is not "made available to the public" - it is made available to those who accede to the management infrastructure and any other agreements the artist or their agents (in this case you can't call them publishers) have tied to the work.
During my (ongoing) participation in the Blank Media Levy, I asked if there was any license attached to the sale of a music CD; whether there were any restrictions placed (other than in the Copyright law) on what could be done with that CD once it had been purchased. The answer was no, there was no other license. This means to me that the work had been published since the rights were solely those granted by the Copyright Act with no changes.
If "publishing" (in the context of when the copyright act takes effect for a work) were taken (by the courts for instance) to be defined only as that done without any rights management or extra contractual ties (End User License such as found in software purchases), then all works not so published would then become trade secrets (or something to that effect) and would lose (or never gain) the protection of the government via the copyright act; meaning the owners/publishers would have to go after civil damages for individual transgressors.
The consequences to the "rights holders" might be interesting. One consequence would be that they'd have to do their own enforcing instead of getting the government to help them.
This in fact might be the exact balancing necessary for the public's acceptance of DRM. "Restrict the public's rights to your work and you lose the public's protection."
I'm interested in your thoughts as this is an ongoing debate in many circles. You can of course contact me at richard@pacdat.net
References:
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Free Trade Area of the Americas (FTAA) Treaty |
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http://bill.verity-networks.com/timeline/t_frame.html A graphical representation with links of the evolution of copyright law - must read! |
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http://www.opendemocracy.net/debates/debate.jsp?debateId=40&id=8 A discussion of copyright in light of the changes proposed and being put into effect today - us vs. them - excellent reading |
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http://www.copyrighthistory.com/ - site devoted to the history of copyright - a copy of the Statute of Anne may be seen there. |
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More on Digital Rights Management issues at Richard's site |
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The Blank Media Levy |
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