inamerrata

I’m going to have a go at blogging some of the various issues the review team raise.

Issue 17

Having regard to the decisions in Warner and Sony (at first instance and on appeal), does the exemption for temporary copying in the course of a communication provide sufficient certainty?

One of the changes to the copyright act by the Digital Agenda amendments involved allowing people to make temporary copies of works as a part of the technical process of making or receiving a communication — so when you copy a webpage into memory, and then again onto your screen in order to view it, you’re not committing a copyright violation.

This is a just and necessary measure — digital content cannot be viewed without making copies pretty much by definition, and there are some instances of this being investigated in court included in the issues paper.

The principle here, I think, is the desire to separate the traditional ideas of copyright from the technical process of copying; in particular, we want to maintain a market for authors to sell works to people and companies, but not limit the means consumers then use to access those works for their own private pleasure. Some of the questions this raises are issues like time shifting broadcast television programmes by recording them to videotape then watching them later, archiving broadcast programmes and watching them again and again (by using a PVR like Tivo, or by keeping an ever growing video tape library), maintaining web proxies that make accessing popular websites more efficient for a group of users, and maintaining web archives (such as web.archive.org or the google cache) to allow users to access copyrighted works that the author is not making available (eg, because they’ve updated/removed it, or because their website isn’t working).

I believe the principle at work here is that if a work can legitimately be viewed or heard or otherwise used or enjoyed by someone, then any number of copies made in order to expedite or enhance that use should be permitted. For example, if someone is permitted to watch a programme once at 8pm, then they should be allowed to choose to watch it instead at 10pm. Similarly, if someone is allowed to use a programme on one computer, they should be able to use it on a different computer instead.

The blowback here comes in two ways. One is clearly expressing this principle, without including any loopholes that permit widespread copying and distribution and destroy the market for the work. The other is whether it might be appropriate to extend the author’s exclusive rights to include making enhanced forms of the work.

Consider talking books, eg, which are widely available, although aren’t a huge market. At present, if you want to listen to a favourite book on a long car journey you buy a second copy, this time on tape or CD. The author gets a little more money, you get the added convenience of not having to bring someone along to read the book to you. But computers can do passable renditions of language these days, and they’re only going to get better. If you have a laptop with the appropriate software and an ebook, should you be able to have your ebook read to you, or should you have to buy a separate copy of the book in order the hear it? Other examples include whether you should be able to make a copy of a song you have on CD in mp3 (or ogg) format and listen to that on the computer.

One of the difficulties I’m having in responding to the issues in the review is working up the appropriate sense of moral indignation required to present my views (or work out exactly what they are, for that matter). It’s much easier to say “No, this is wrong, this is why, and this is a better direction”, than to say “Yes, you’re on the right track, here are the next few steps and this is the destination.” But the review does seem to be on the right track, and what I’ve said above is pretty much the heart of their next issue.

Issue 18

18.1: The Review seeks your views […] about whether any proposal to allow the copying or storing of works or audio-visual files at a point closer to the point of access is or is likely to:

• create greater efficiencies or a more efficient allocation of available resources;
• significantly adversely impact on owners’ legitimate interests or markets;
• significantly reduce or remove the inventive to create works or other subject matter that is protected;
• lead to creating or reducing opportunities for rent seeking or otherwise create or offset additional social costs;
• promote widespread use of the material and increase markets.

18.2: If in your view such a proposal should be implemented, what controls on the activity might be necessary or appropriate to ensure that the appropriate balance of interests and rights is maintained, and that any copying is not open to abuse?

Creating false markets — like a market for books on CD that would not exist if existing ebooks were allowed to simply be plugged into existing laptops and existing text to speech programmes — is rent seeking. And it’s probably bad in this case, since it doesn’t provide any social benefits since the author needed to be rewarded for the initial purchase of the ebook in the first place. This is similar to the way we don’t encourage authors and publishers to limit people rereading books they’ve bought, or to limit borrowing of books or sale of books second-hand: encouraging creativity by giving authors control over the distribution of their works is good, and seems to be necessary, but we don’t want to give away more control than we have to.

That’s not to say that the market for books on tape is false at present. It certainly isn’t: the quality of text-to-speech programmes is not particularly high, and isn’t something you’d want to listen to for eight hours in a car. Similarly, while you can print out an ebook, its nowhere near as pleasant to handle — or often read — as a properly bound paperback or hardcover. The question is not whether these markets should exist, but whether the control authors have over them should be maintained or increased.

Another example of this that bears thought is the question of web proxies. When a user browses an author’s website, the user’s ISP will often cache the viewed pages in order to keep the amount of traffic over expensive links (like the undersea cables between Australia and the United States) to a minimum — the theory being that if the user requests the same page again, or another user at the same ISP requests the same page, the ISP will save money, and additional access to the website will be faster. The ISP and user benefit from this — by saving money, time and bandwidth — should the author have any say? Should the author be able to demand a small fee from the ISP? Should the author be able to demand that users access the site directly so they can, eg, track the number of people who access their site.

At present this is solved by technical standards and courtesy: authors who don’t want their pages to be cached by proxies can indicate that with an HTTP header, that ISPs will generally accept; and most authors don’t make use of that feature. (Actually, one reason for them not to make use of it is that caching of their pages will reduce access to their site, leading to a reduction in their monthly bandwidth bills — so in a majority of cases, everyone’s interest converge here, at present)

Note that this is presumptively a copyright violation — copies are certainly made, in general without any explicit permission from the author, and none of the exceptions appear to apply. Proxies work on the assumption that they can keep a copy of anything they can get from the web, and make more copies and distribute them to others however they see fit, unless explicitly told otherwise, which is quite contrary to the ordinary expectations of copyright law, at a technical level anyway.

I believe the correct solution here is to ignore the author’s interests in controlling the means by which their work is accessed, in all cases; and for the law to operate at the effective level, rather than the technical one.

A more interesting question is that of archiving broadcast content — recording songs off the radio and adding them to your CD collection, or shows off TV and watching them again and again instead of buying them on DVD. Whether there is a line between this and time-shifting, and if so where it is, is a hard choice, since making broadcast media less ephemeral is likely to have a much greater effect on the market than letting people convert their CDs to mp3s. It’s not a question I’m going to try talking about now.

UPDATE 2003/09/09:

I suppose I should note that I didn’t actually cover Issue 17; I just used it as a jumping off point. Getting back to it: the question at the heart of Issue 17 is whether the act provides sufficient protection — in strength and clarity — to enable particular technical measures. I think that question is tightly wrapped up in the answer above: while it certainly appears to be quite effective, it’s liable to cause problems of interpretation since it focusses on the technical means to achieve desirable ends rather than the ends themselves (and I think the decisions we’re meant to be regarding have some indications of this failing, although I don’t really know what I’m talking about here), and more importantly, that it’s not quite strong enough to cover the entire class of desirable ends that it should be addressing.