So, I have been mostly following Michael Geist’s blog on the proposed Bill C-32. I find it quite edifying. But I had not found someone who seems to be arguing as authoritatively on the other side of the issue. I found such a blog this morning. Yay!
Geist’s views on digital locks (or TPMs) are the key topic on the blog. Specifically that the locks prohibit the other exceptions in the bill on fair dealing. That the lock trumps fair dealing. He argues, quite well, that the bill should be amended to allow circumvention of the lock for the purposes of fair dealing.
So this other fellow – Barry Sookman – argues that the current language in the bill is exactly what is required by the WIPO treaty (here). He argues that comments made by Geist on his blog (here and here and here) are not in keeping with the language of the treaty nor the intentions of the countries being signing it. And he does so in depth – with reference to the actual treaty and the discussions before and proposed amendments to it. In detail. I’m not a lawyer, but he seems to crush Geist’s argument.
I’m pretty excited. Now I can see a real debate on the various sides of the issue. I think both sides have made good points and I am concerned about the digital locks. But it doesn’t seem as clear cut to me anymore.
The following argument is one of the places Sookman uses metaphor instead of legalese in his analysis. I thought it was excellent:
Since the very birth of copyright, there have always been legally controlled forms of getting access to protected works and objects of related rights, such as buying copies of works and records, lending books from libraries, buying entrance fees for cinemas, theaters, concert halls and exhibition halls; paying newspaper, radio and television subscription fees, etc.
Even in the case of exceptions, there have been controlled forms of access also in the “traditional”, analogue environment. For example, nobody was allowed to walk into a book shop, take a book from the shelves and walk out with it without payment just because he wanted to benefit from the exception to the right of reproduction for the purposes of quotations or making a parody, or nobody was able to simply enter a theatre without an entrance ticket referring to his need to see a presentation of ‘Hamlet’ for the purpose of preparing his homework on Shakespeare’s dramas. There were and are other – adequate – ways to benefit from these and other exceptions.
If it were allowed to eliminate these control mechanisms, the copyright system would collapse. This would be the case, since, if there were free access to copies in book shops, record shops, rental shops, etc., free ntrance to cinemas, theaters and concert halls, etc., there would be no income of creators, publishers and producers to recoup their investments and even their operational costs, since no licensees would be able to pay remuneration to them. Such unauthorized acts of access would not qualify as copyright infringements proper, but if there were no legal protection against them, they would undermine the practical applicability of copyright and related right.
In the digital, networked environment the traditional chain of events is transformed: what used to be entering a book shop, buying a copy, bringing it home and reading it – or going to cinema, buying a ticket, entering the movie theater and watch the film – may be concentrated into simple clicks on the keyboard. In the case of these complex condensed acts, control by TPMs has the same role as property protection for copies of books and records in shops or by trespass laws against someone who tries to enter a theatre, cinema or concert hall without buying a ticket, etc.
This means that, there is nothing alien to the copyright paradigm in the application and protection of access controls. In the online environment, such measures may guarantee the kind of control of access to works and objects of related rights that have always existed as an indispensable corollary of copyright protection proper. It is another matter that appropriate balance should be established between the protection of such and other TPMs and the applicability of certain exceptions and limitations important from the viewpoint of public interests.
So is circumventing a TPM (even for legal purposes) like going into a theatre without paying or taking a book from a bookstore without paying? Or is it like being able to photocopy the relevant sections of a book in a library? To me it seems more like the former than the later. So Sookman’s argument seems to have the greater weight. But a TPM would also prevent the later.
I am now deeply divided. Pretty exciting!