Alternatives to C-61, part II

August 28th, 2008 Posted in Information Technology, Intellectual Property

Here’s the rest of that post:

GOALS

The goal of any legislation is to balance concerns of interested but competing parties, and to approach this balance, as much as possible, with a public interest bias.

The concerns were these:

• Assimilation of works into the public domain
• Growth and evolution of the cultural denominator
• Non-pecuniary recognition for and attribution to the artist
• Promulgation of the ideas expressed by works
• Pecuniary consideration for the investors (artists & promoters), i.e.profit
• Preservation and protection of works
• Integrity of attribution, especially in terms of its effects on a career or reputation
• Availability in convenient, usable forms
• Affordability and accessibility of those available forms
• Transformability into new works through public domain assimilation (The “trust” theory could see this as, in fact, reversion from limited monopoly to its proper beneficial place in the public domain, entering the public denominator/lexicon.)

How do we balance thse often contrary goals?  We create a paradigm that incorporates a dynamic of shifting interests over time.  Remember that we are trying to rebuild the public road, so we are not creating occasional opt-out models like GPL and CC.

MODELS

I’m going to suggest 4 theories that could be combined:

1.  U.S. Constitution

Intellectual property is a statutorily-created limited monopoly created as an incentive to the further creation of creative works.

2.  Trust

Consumers and the public denominator/lexicon have beneficial interests in all creative works, which may be held in trust by creators and promoters for a trusteeship fee.  Think of it as stewardship over new works until they have assimilated themselves, at which point, there is no longer a need for trusteeship or right to stewardship.  I’m not going to get into this too much at the moment as Dr. Ken Cavalier has a great piece on the way about it.

3.  Profit-right

Profit-right would avoid the path of criminalizing unauthorized copying or distribution, which is the path we are heading toward currently.  It is not possible to prevent unauthorized copying or distribution of electronically fixed intellectual property without draconian digital locks.  These locks, since they are devised by the Facilitator/Agent parties, have only one goal:  the protection of property.  Since they do not, generally, encompass any means of returning property to the commons, or allowing for the exceptions we currently have such as fair dealing (Canada), fair use (United States), and efficient breach (the ability to breach and then argue later).  Efficient breach is an interesting one – since intellectual property is generally considered a civil matter, its violations usually can be remedied fully after the fact.  Contrast this to criminal matters (violent ones especially), where the consequences of the crime can not actually be undone through the remedies of the court.

Anyhow, back to profit-right.  The agents currently employing these draconian technological protection measures, which should be illegal considering that from one perspective they are theft from the public domain, are seeking two things:  control and money.  They have no right to the levels of control they seek, as there is a countervailing public right to that control; they do have a right to the economic potential however, and perhaps a system can be drawn up based on the right to exploit that pecuniary potential.  We do have something bordering on it now in Canada, with the s.80 exception for personal copying due to the levies paid on blank media; the validity of this scheme and the exception for personal copying was upheld in BMG Canada v. John Doe ([2005] F.C.J. No. 858; 2005 FCA 193).

I’m going to give you one more example to contrast:  Compare the Microsoft approach to the RIAA approach, and see which organization is more successful.  Microsoft tends to go after those who make illegal copies of its software and distribute them for profit.  Even when it finds them, MS is more interested in an injunction to prevent further counterfeit distribution than in huge damages.  It is true that the Genuine Advantage program is now stepping pretty far into the technological protection measure arena, and not with great success.  But it terms of how MS uses the courts as a weapon, it does so only in terms of for-profit counterfeit production and distribution.  I mentioned this in an earlier post:  Microsoft’s Ironic Poker Game.  In that post, I also mention a case law example.

Contrast that to the RIAA’s “sue-our-customers” model.  They are after money from music fans who distribute and promote their artists, claiming that it is theft.  It is unlawful distribution, but it is not theft.  And as is widely perceived, they are using the court system to sustain an outdated business model rather than organically improving their sales by appealing to their customer base.

Also bear in mind that the limited monopoly suggested by the U.S. Constitution is created only in order to provide a pecuniary incentive, not to establish increasing control and property over intangible ideas and should-be public artistic works.  Profit-right is a return to that idea.  Making money is protected.  But ideas, as Jefferson said, are to be shared.

4.  Moral rights

Moral Rights are the artist’s non-pecuniary or non-economic rights.  They are rights pertaining to attribution, reputation, integrity, etc.  These are the rights often most valued by the artist, and also by the academy.  They are protected currently by the Berne Convention, Article 6bis.  Here it is:

(1) Independently of the author’s economic rights, and even after the transfer of the said rights, the author
shall have the right to claim authorship of the work and to object to any distortion, mutilation or other
modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his
honor or reputation.

This important set of rights should be recognized outside of defamation (the model used instead of moral rights in the United Stated, hence the TRIPS Article 9 exception), and made explicit in any new public legislation for the protection of public works.

CONCLUSION

The challenge now is to consider these various models, some new and some very old, and try to apply them to the concerns of the interested parties in a balanced fashion that holds a public interest bias.  After all, isn’t that why we elect our Members of Parliament?

I welcome your suggestions!