Should There Be A Right To Copyright Exceptions?
from the something-in-the-air dept
Last month I wrote about how the Netherlands is looking to introduce new flexibilities into its copyright laws, based on some interesting research on copyright exceptions. There must be something in the air, because a wide range of other groups are contemplating exactly the same approach.
For example, the main document of the UK government's consultation on copyright (pdf) devotes no less than 65 pages to the area, proposing exceptions for private copying, preservation by libraries and archives, research and private study, text and data mining, parody, news reporting, and use by the disabled, among others.
On the other side of the globe, during the Melbourne round of the secret TPP negotiations, a group of high-powered tech companies have been urging the inclusion of copyright exceptions as part of that treaty. As Sean Flynn explains:
the Computers and Communications Industry Association (CCIA) -- representing tech companies like Google, Facebook, E-Bay and Yahoo -- has been circulating a new proposal for adding copyright limitations and exceptions to "permit the smooth functioning of the Internet." It is incredibly well researched and supported and includes some good ideas. My favorite among them is a proposal for mandatory flexible limitations and exceptions to copyright in every system:
Finally, and perhaps most surprisingly, the French copyright enforcement body, HADOPI, has released a detailed questionnaire on copyright exceptions (pdf in French) as part of its research into the subject. Here's the introduction explaining the thinking behind the move:
"Such exceptions and limitations shall permit the utilization of works and other subject-matter to the extent justified by the purpose of free expression (including commentary, criticism, and news reporting), participation in the cultural life of the community, transformative use, teaching, research, scholarship, personal use, and the functioning of, and innovation in, the digital environment, provided that such utilization is consistent with fair practice."Exceptions to copyright and neighboring rights represent the search for a balance between the need to respect copyright and neighboring rights and that of allowing the use of works with areas of freedom for the benefit of users.
That's pretty bold, and extremely welcome coming from this particular organization, which hitherto has seemed to be more aligned with the maximalist view of copyright. If even HADOPI can see the need for not just copyright exceptions, but a generalized right to exceptions, maybe there is hope after all.
This balance seems challenged today. Indeed, the development of new technologies, leading to new uses of works, (internet, social networks, streaming, cloud, scanning ...) and blurring the line between private and public, calls into question a law developed in part for a completely different context, and insufficiently adapted to these new uses.
This challenge is twofold. First, from a legal viewpoint, the current texts on exceptions do not take into account these technical developments and current uses of works in a fully satisfactory manner. This results in an increasing reliance on rights other than intellectual property, in particular Community law, in order to circumvent imperfections (competition law, human rights ...). Secondly, in terms of use, the ease with which a work may be appropriated and transmitted seems to render meaningless the concept of exceptions and raises the question of their suitability for the current context.
It therefore seemed useful to Hadopi to undertake this project to take stock of the issues and, where appropriate, make recommendations to address shortcomings of the present system and attempt to define a more satisfactory balance representing a new consensus. This new balance would not be limited to amending and supplementing the exceptions to copyright and neighboring rights, it could aim to establish a "right to exception" or a "right of exception", including the development of an independent legal doctrine, enforceable before judges and on a par with intellectual property law.
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Filed Under: copyright, exceptions, fair use
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This is odd
Nah, couldn't be.
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Re: This is odd
But, obviously, if a change like this is proposed, the masses who are in favor of copyright will rise up and have worldwide (and internet-wide) protests to stop this, right? Right? *crickets*
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Re: This is odd
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Re: This is odd
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Re: This is odd
"First, from a legal viewpoint, the current texts on exceptions do not take into account these technical developments and current uses of works in a fully satisfactory manner. This results in an increasing reliance on rights other than intellectual property, in particular Community law, in order to circumvent imperfections (competition law, human rights ...)."
They could easily be justifying the need for MORE draconian laws so it doesn't rely on other rights.
"Secondly, in terms of use, the ease with which a work may be appropriated and transmitted seems to render meaningless the concept of exceptions and raises the question of their suitability for the current context."
They could also secretly mean that if they are meaningless, then we don't really need them anymore do we?
"It therefore seemed useful to Hadopi to undertake this project to take stock of the issues..."
READ: Yeah we realize you are pissed and we'll agree to LOOK at it to pacify you until you go back to sleep.
"...and, where appropriate, make recommendations to address shortcomings of the present system and attempt to define a more satisfactory balance representing a new consensus."
READ: We'll decide what's appropriate and we'll make recommendations but not actually do anything unless it supports our agenda so that you calm down and go back to sleep.
"This new balance would not be limited to amending and supplementing the exceptions to copyright and neighboring rights, it could aim to establish a "right to exception" or a "right of exception", including the development of an independent legal doctrine, enforceable before judges and on a par with intellectual property law."
We COULD create a balance by adding a "right to exception" but we aren't going to say that we INTEND to do this since we are just saying this so that you will calm down and go back to sleep. Instead this is just a sweet dream for you to have when you do in fact go back to sleep.
Words are cheap. Actions speak volumes. And given their previous actions, I think this sort of interpretation is more realistic. I hope they prove me wrong. Show me don't tell me.
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Re: This is odd
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"..participation in the cultural life of the community, transformative use, teaching, research, scholarship, personal use, and the functioning of, and innovation in, the digital environment.."
To me it sounds like ANY and ALL copying would be permitted. That is EXACTLY what the [strikethrough]tech[/striketrough]PIRATE industry has been doing all along and wants legalized.
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ANY and ALL copying is not being proposed as legal, just reasonable exceptions as to promote the progress of the useful arts rather than criminalizing a large portion of the world's population.
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It's also something most people are going to do whether it's legal or not, so why needlessly criminalize everyone? None of these things are going to destroy the industry.
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Bear in mind that we do most of what's on that list already both on and off line and, until now, there's not been a wolf pack of lawyers circling us every time we're in a coffee shop, bar or in church discussing or talking about (and transforming) a work covered by copyright.
Not all copying is allowed or permitted under these proposals most notable "for profit" isn't covered. Also, remember that in few, if any, of these cases are there "true" (as in unchanged) verbatim copies made of an entire work only excerpts. Nor to all proposed uses affect only the "content" industry alone. Some apply to the software and IT business who in one form or another from open to closed source do this already.
Nor will any of this result, in my opinion in lost sales, but open paths to greater sales.
Then again, I know you're not going to buy that but I thought I'd waste my time anyway. ;-)
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But..but..but... what about the children?
This can't be happening. How will Chris Dodd support his lifestyle? Cary Sherman will have to fire some of his servants, millions of jobs will be lost.
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Re: But..but..but... what about the children?
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Sounds like HADOPI is playing the old bait and switch, or how to rope-a-dope
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Re: Sounds like HADOPI is playing the old bait and switch, or how to rope-a-dope
They might give us some kind of token prize whatever-or-other to make us happy, but they'll take with the other hand another right, another freedom. Like they always do.
When people figure it out it'll be all "...But... But.. Look what we gave you!" and "...But....But... Balance!!!".
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Now this is getting silly already, we don't need extra rights, we just need to get rid of copyrights entirely.
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We feel it necessary and beneficial to huff, and furthermore to puff.
This balance seems challenged today. Indeed, the development of new technologies, leading to new architectural modes, (bricks, mortar, steel deadlock bolts...) and blurring the line between sty and butcher block, calls into question a law developed in part for a completely different context, and insufficiently adapted to these new measures.
This challenge is twofold. First, from a legal viewpoint, the current building codes do not take into account these new fortifications in a fully satisfactory manner. This results in an increasing reliance on methods other than blowing houses down, in particular impersonation of elderly relatives, in order to circumvent imperfections (would you like to come out and try these tasty slops?). Secondly, in terms of construction, the ease with which a brick wall may be erected seems to render meaningless the concept of masonry and raises the question of its suitability for the current context.
It therefore seemed useful to BBW L.L.C to undertake this project to take stock of the issues and, where appropriate, make recommendations to address shortcomings of the present system and attempt to define a more satisfactory balance representing a new consensus. This new balance would not be limited to amending and supplementing permission to build with bricks, it could aim to establish a "right to another day" or a "right to get a little fatter", including the development of an independent legal doctrine, enforceable before judges and on a par with slaughterhouse tradition.
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Re: We feel it necessary and beneficial to huff, and furthermore to puff.
It will be know as the "Mmmm BACON" law.
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Stopped reading there, as a rule of thumb, never respect something that doesn't respect you.
It's like trying to create this "balance" between freedom and tyranny, as if tyranny is something we NEED and cannot live without.
I seriously don't trust them. I have learned the moment they mention "balance" to expect the worst, they say this and that but the moment balance comes into play it's obvious they've got other ulterior motives they aren't discussing. And none of them are good.
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Destruction of capitalism always entails destruction of intellectual property
First the statists, collectivists and utilitarians destroy copyright and intellectual property; then they destroy property rights altogether; then they start shooting those who happen to not benefit the collective.
Every socialist country has gone through that.
Using something that someone else had created against the creator's wish is NOT a right. The scope of such exceptions must be extremely limited. The only instance when it should extend to situations when the copyright owner expressly disagrees with the use is limited quotations from the work for the purpose of critiquing that same work.
I have written about it in my old article at http://mincov.com/articles/index.php/fullarticle/copyright_and_the_great_socialist_degradation/
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Re: Destruction of capitalism always entails destruction of intellectual property
Socialism is based on centralized control, the end of copyrights is the end of government control to tell others what to do, there is nothing more capitalistic than that.
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Re: Destruction of capitalism always entails destruction of intellectual property
Every socialist country has gone through that.
I am an exceptionally strong believer in property rights, capitalism and the free market, but it's delusional to think that copyright is "property." The purpose of property was to create a system that allowed for the most efficient allocation of *scarce* resources. Content is not a scarce resource.
In fact, if you're going argue that copyright exceptions are somehow socialist, let's dig in and show you how copyright and patents are much more socialist than not having them at all. They're both *gov't granted* monopolies supervised by a central gov't board. They both deny people the ability to do what they want with their own property. They're both designed to appeal to the "collective" good will of the people.
Using something that someone else had created against the creator's wish is NOT a right. The scope of such exceptions must be extremely limited. The only instance when it should extend to situations when the copyright owner expressly disagrees with the use is limited quotations from the work for the purpose of critiquing that same work.
You clearly know nothing of the history of fair use and how valuable it has been.
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