As I've noted previously, in 2009 the Canadian government set about "modernizing" the Copyright Act. Canada was in an enviable position as copyright law had not been touched since 1997. The twelve years of waiting allowed for a more nuanced understanding of the challenges and opportunities wrought through digital technology and world-wide networks. Yet the amendments proposed in June 2010 showed a striking resemblance to the DMCA of 1998. Complete obedience to technological protection measures was the order of the day.

An aspect of change that looked promising was expansion to the permissible categories of fair dealing. Parody, satire, and education were added. The last item unleashed a storm of protest by writers' groups and copyright collectives; they insisted that this would lead to wholesale appropriation of works used in educational institutions. Even though within a month of the proposed amendments, the Federal Court of Appeal issued a decision affirming that the existing practices of payment for works used in K-12 education would continue. The FCA decision should have reminded everyone that the category of use is not enough for the use to be deemed fair. (A framework of questions, similar to the implementation of fair use in American law, was instituted by the Canadian Supreme Court in 2004.)

Nevertheless, the campaign of misinformation continued; the year closed out with a full-page advertisement in a national newspaper. Readers were left with the impression that the inclusion of "education" as a potential exception to copyright was a never-before-tried proposal and that such an action places Canada's creative potential in jeopardy, with consequences for the digital economy and the entire country.

In any event, the furor will make little difference one way or the other. If the bill passes as proposed, TPMs rule supreme. Even if the use of a work would have been deemed non-infringing.

Next step: the Special Legislative Committee is once again seeking seeking input on Bill C-32.

The Director of Harvard's University Library, Pforzheimer University Professor Robert Darnton, is pushing it link here. In a meeting of 42 representatives from research libraries and other institutions from from around the country, the idea was strongly backed.

"[T]he library would be "the digital equivalent of the Library of Congress…bringing millions of books and digitized material in other media within clicking distance of public libraries, high schools, colleges, universities, retirement communities, and any individual with access to the Internet."

The project would "digitize all books in the public domain (no longer in copyright) as well as so-called orphan books (those published between 1923 and 1964 for which no copyright owner can be found)."

"Darnton hopes that bipartisan support in Congress may eventually lead to some sort of accommodation or change to copyright laws that would allow more books still in copyright to become part of the digital library. Innovative technological solutions that enable limiting the number of loaned copies of books in digital form may also play a role in facilitating a digital public lending library."

Other countries are ahead on this. The Dutch, for example, are on course to digitize every Dutch book, newspaper, and pamphlet from 1470 to the present.

This activity will put new pressure on copyright, particularly of books, given that ebooks may replace hard copies for most readers. They are much cheaper but can still be profitable for authors when the publishers cut is eliminated.

A very nice presentation by Nicholas Gruen about the Web 2.0 - including the rather important issue of copyright.

BoingBoing.net's Cory Doctorow pens a smartly constructed essay exploring the question of what we should really want and expect from a copyright legal regime.

I am in complete agreement with the broad goal he advocates:

In my world, copyright's purpose is to encourage the widest participation in culture that we can manage - that is, it should be a system that encourages the most diverse set of creators, creating the most diverse set of works, to reach the most diverse audiences as is practical.

It is well worth reading his thoughts on how he would start to get us there.

Check out the full column here:

http://www.guardian.co.uk/technology/2010/nov/23/copyright-digital-rights-cory-doctorow

Copyright provides a (somewhat temporary) monopoly that allows the holder to extract rents by limiting access to the copyrighted work. This paper by Giovanni Ramello writes about some literature that has been interesting in how some industries have been trying to expand their market shares by exploiting these monopolies to the point of excluding new entrants. He documents this with the example of the publishing industry whether the major players keep increasing the stranglehold on the industry.

We have certainly seen this happening in the scientific publishing industry, where the number of players keeps decreasing through mergers and acquisitions. But this is a good opportunity to remind ourselves that there is a movement trying to counter this: Open Access. And it so happens that this week is Open Access Week. So spread the good word about the free dissemination of research!

Hat tip: Economic Logic

John Bennett post links to an interesting article on copyright as a way of infringing upon free speech. While I agree on the substantive conclusion (the power attributed to copyright holders does infringe on free speech nowadays) I am not sure that the issue can be addressed in a satisfactory way by simply advocating a Common Law (CL) approach instead of a Statutory one (SL). At the end, this seems the eternal debate between CL and SL and both evidence and logic leave the issue quite open. Until a judge does not exceed the established boundaries the CL approach tends to leave more to to fair use and less to its opposite. But once a judge rules otherwise ... well, we are up the old creek that John Belushi made so famous (did he have a copyright on the joke?)

The question is: how do you prove that something is not "fair" use? A statute, per-se, does not immediately make this an easier task (i.e. restricts fair use), or vice-versa. A statute establishes some criteria, and those criteria may be restrictive or not in the very same way that, under CL, a judicial interpretation may, or may not, establish new boundaries and new interpretations. The issue, at the end, boils down to: who has got the power to decide and rule?

I am afraid the answer always depends on the balance of the powers on the battlefield, and that balance tilted in the 1980s in a very clear direction. It did not tilt in the bad direction because SL took over CL, but because the political momentum (and the Reagan administration) pushed in that direction. The direction of change, until now at least, has kept steady and we are now in the situation we are. Until technological and economic changes will not tilt the opposite way (the same argument applies to patents) the current trend will persist because it is supported not by the majority of people but by the most organized and powerful lobbies.

That is the political problem. I am well aware I do not have an answer as to HOW we can tilt the political momentum in favor of free speech and against intellectual monopolies, but THAT is the problem we need to face. Free speech is a collateral damage(d) freedom in this battle, which is one of economic and social interests. Hence, it seems to me, the question we should ask is: how do you build and who can build a coalition of social and economic forces that will find intellectual and inventive freedom to be preferable to intellectual monopolies. At that point, either CL or SL may be useful to push back intellectual monopoly. I do not see, a-priori, why one system would yield better results than the other.

Mike Masnick picks up on the conflict between copyright and free speech link here. Many of you have probably read it but if you haven't, you ought to. You will ask yourself what you have been thinking. And to wonder what the courts have been thinking.

I hope this is not a repeat on this blog. Der Spiegel published two months ago a discussion of the work of Historian Eckhard Höffner. He argues that the fragmentation of Germany in the 19th century made it impossible to enforce copyright laws, if there were any. This lead to the massive availability of books, and to the publication of ten times as many titles as in the UK, where copyright was strictly enforced. This transformed Germany into a country of readers.

Michele Boldrin and David Levine have made the same argument in their book when comparing the copyright enforcement in the UK and the lack thereof in the United States, which lead to a boom of readership and then literacy in the US. Höffner makes the same point for Germany. He goes as far as claiming that this boost in readership and thus knowledge is the origin of the great expansion of German industry, much stronger than in the neighboring countries or Britain. Indeed, plenty of manuals and handbooks were published that made knowledge much more widely available, In Britain, this was limited to the elite, and the common people had to learn from hearsay.

BoingBoing.net has all the links and goodness here:

http://www.boingboing.net/2010/09/26/comic-explains-the-f.html

A useful link to all of the SF Chronicle's recent coverage on the topic can also be found here:

http://topics.sfgate.com/topics/Copyright

Brad DeLong reports that Citigroup published an appraisal of the Obama administration's bank reform policy in 2009 link here. It was mild and viewed the changes favorably, so the report conveyed a sense of relief at the bank. Come 2010, the bank has now sent a blog which posted the report, a take-down notice for violating its DCMA link here.

DeLong's verdict; "Whatever you think about the DMCA, it should not be used to prune the historical record of primary sources about how various economic policies were perceived at the time." Brad then reprints the Citigroup report link here. Good for him.