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30 Days of DRM – Day 20: Public Domain (Circumvention Rights)

Concerns about the impact of anti-circumvention legislation on public access and use of public domain materials is frequently addressed by arguing that the legislation only protects works that are subject to copyright.  Since public domain materials fall outside that definition, works such as old public domain films that are enclosed with DRM could be lawfully circumvented.  Those assurances notwithstanding, without the inclusion of a public domain circumvention right, circumventing DRM on works that combine public domain content with materials still subject to copyright could give rise to liability.  In other words, pure public domain may be circumvented (provided you have the tools to circumvent), but once someone builds on a public domain work, they will benefit from the anti-circumvention provisions.

This is a particularly pronounced concern for historians, archivists, and film scholars since their ability to use public domain film or video may be limited by anti-circumvention legislation.  For example, the distributor of a DRM'd DVD containing public domain films along with an additional commentary track would likely argue that there is sufficient originality such that the DVD is subject to copyright and that anti-circumvention provisions apply. While even supporters of the DMCA acknowledge that anti-circumvention legislation should not be used to privatize the public domain, they are loath to establish a full exception or circumvention right for public domain materials, arguing that all works contain some elements of the public domain and that a blanket exception could be used to cover virtually any circumvention. 

A middle ground on this issue would include at least two provisions.

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September 7, 2006 2 comments News

The Globe on Droit de Suite

The Globe and Mail's Val Ross has an interesting piece on a brewing Canadian copyright battle in the art world.

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September 7, 2006 4 comments News

Net Neutrality and the CBC

The CBC recently released its submission to the CRTC as part of the examination of the future of broadcast in Canada.  The submission interestingly raises network neutrality concerns, though it does not use that specific term.  Rather, as part of a discussion on Internet video at page 19, the CBC says:

The business case analysis for Internet video is complicated by the fact that suppliers of broadband connections may also have incentives to control the bandwidth available for Internet video.  Canadian cable companies engage in "bandwidth shaping" which allocates different levels of transmission capacity to different services according to the operational preferences of the cable company.  This type of bandwidth shaping can ensure efficient use of transmission capacity.  It can also ensure that Internet video by third parties does not become a threat to the business of the cable company, whether it be the delivery of traditional television programming to cable  subscribers, VOD or the distribution of cable company-owned Internet video services.   In light of this complex mix of issues, it remains unclear whether Internet video will become a primary means of distributing video content on a commercial basis. 

This is network neutrality in action.

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September 6, 2006 5 comments News

30 Days of DRM – Day 19: Backup Copies of Digital Consumer Products (Circumvention Rights)

Copyright reform is frequently characterized as "modernizing outdated copyright laws" (e.g. see yesterday's excellent Ottawa Citizen's masthead editorial).  Leaving aside the fact that Canadian copyright law has undergone two major revisions in less than 20 years (along with several smaller changes), the reality is that the modernization is almost entirely focused on the interests' of a select few industries.  Consider the issue of backup copies.  Yesterday's post addressed a right of circumvention for backup copies of software, reflecting the need to preserve provisions in the Copyright Act that are nearly 20 years old.  Those provisions rightly recognize that software programs are an intangible product that is susceptible to loss.  Creating a backup copy right is a simple way to allow consumers to protect their investment.

If the government is serious about modernizing the Copyright Act, it could do worse than to start by modernizing the backup copy provision.

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September 5, 2006 1 comment News

The Ottawa Citizen on Copyright Reform

The Citizen's lead editorial today concludes with the following: Canada's copyright regime is likely to be reviewed this fall with a view to dragging it into the 21st century. Making sure we maximize the usefulness of new technologies like Google Books should be the Harper government's highest priority; promoting the […]

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September 5, 2006 1 comment News