Copyfight: it’s about use

December 25th, 2007 Posted in Communications, Information Technology, Intellectual Property

Why does the history matter?

From Stationers to Sony, it’s about use.

In this discussion about the Canadian Copyright Reform Bill, we are really discussing several legal ideas, which though often conflated are subtly different. History demonstrates this conflation through the development of regulations, labels, et cetera, for these concepts.

We have the right to disseminate, as curtailed by the Stationers’ Charter. We have the moral rights, as awarded in the Statute of Anne. We have the right of exclusivity, created by the propertization of the intangible in the U.S. Constitution. We have future rights in as-yet non-existent copies of an expression, as defined by copyright. We combine these rights to derive a general regime of control over the dissemination of information, and we are but one should-have-been-large step away from a total system of informational control.

That step is the right to control the use of legally obtained informational goods.

Here they come, those three letters you’ve grown to love or hate, depending on whether you’re a producer or a consumer: DRM.

Digital Rights Management.

But we already have a system of rights encoded in copyright and other IP legislation everywhere in the informationally-developed world! What is the purpose of another?

Digital Rights Management refers to embedded systems of usage control that extend the statutory rights of intellectual property holders into the realm of post-transactional usage, well beyond the property rights developed into the legislative regime. Professor Margaret Jane Radin had a great deal to say about this in her paper, “Regulation by Contract, Regulation by Machine”.

DRM in and of itself is a manageable pain in the butt. The problem is that the DMCA (Digital Millennium Copyright Act) grants protection to DRMs, undercutting the legislative authority of the very body enacting the law! In fact, it goes as far as to render DRM circumvention a prima facie offense, reversing the onus and placing the burden of establishing fair use on the user rather than placing the burden of establishing the offense of infringement on the copyright holder.

IP regulation has always been, to some extent, about usage control; but we are now looking at the abuse of the publication rights above to create hegemony of corporate IP holders governing what is emerging to be the dominant socio-economic protocol of our age: information.

We are no longer a society based on manual labour or natural resources. Our products, currency, and interactions are informational, and allowing unfettered corporate regulation of the use of information through the blanket protection of their ace, the DRM, gives them the power to restrict our most basic freedoms. In the past, intellectual property and proto-IP legislative regimes governed, for better or for worse, limited components of society. Today, the ambit of such a regime is, for all intents and purposes, unlimited; the reigns of it must not be handed to corporations who drool at the prospect of DRM, and the reverse onus afforded by its blanket protection.

I’ll return to Copyfight soon, with a post on Canada’s unique opportunities as a global leader in technology innovation. Unless something radical happens in the Minister of Information’s office, I’m going to post some non-law stuff for a week or so.