Monday, January 29, 2007

Copyright, copywrong..

February 16th Is the Copyright Comment Deadline

Let's look at how government plans to change our copyright laws, and how those changes might affect us.
New Zealanders have until next Friday to set out your views on the proposals and submit them on-line to the Select Committee. The details of the proposals are here.

has organised public meetings in Auckland on Wednesday 14th, and Wellington Tuesday 13th with an impressive list of speakers.
You can see the programme at I certainly plan to be there.

We need to take a close look at these proposals to see how they will affect us - and to ask how does any of this make life better for New Zealanders, and if it doesn't why are we doing it?

For me some of the main issues are:

1. The attempt to introduce aspects of the US DMCA law to New Zealand, specifically those provisions that make criminal offences out of de-scrambling or undoing any 'technical protection measure' (TPM) that has been included in the product.

This section also criminalises 'conveying information about means to overcome TPMs, which makes it a crime punishable by disproportionately high penalties merely to tell someone how to make a copy. My concern is that this is moving one step back from the unwanted copying, and extends the reach of copyright much further than it should be allowed to go.

I accept that copyright owners have a right to control copying of their material - but not for my private use in my house. Our copyright law is deficient compared to the US law in that it has no 'fair use' provision. We need to argue for such a provision if we are not to see the heavy hand of the content industry dropping on harmless family and hobby activities as it has in the US and Europe.

The TPM clause as it stands is a direct attack on traditional Kiwi ingenuity - the "Number Eight wire" mentality, that believes you can fix anything with a length of the lengendary farm fencing wire. Kiwi icon Burt Munro would not have been allowed to re-manufacture his World's Fastest Indian if that law had been in force back then. Sony would not have been allowed to reverse-engineer Telefunken's patents and create the Trinitron TV picture tube. It's an attack on after-markets - it encourages manufacturers to include some non-essential trivial aspect in the product specifically to prevent it being reverse-engineered.

It's telling parents to say to their kids that ask 'How does that work':
"I don't know and I can go to jail even for talking to you about it".

2. The grudging grant of the right to shift formats - which everybody's been doing since the first cassette tape came out - but shackled with the pathetic and ludicrous 'sunset clause' that gives people the right to format shift, but only for two years unless the Governor General signs an extension for another two years, ad infinitum. This needless time limit is clearly there to please RIANZ and APRA, and just as clearly needs to be taken out whether it displeases them or not. It will do them no good, and it needn't be there.

It's against public policy to pass laws that are unenforceable, and try to micromanage peoples' lives as this draft does. There should be quite simply a permanent right to format shift material you already own. Not sell it, not trade it, not even give it away, but to copy it from a format that plays on one machine to a format that plays on a different machine, for your own purpose.

A related issue, not addressed in the draft, is archive material recorded in formats that aren't any longer supported - like 78 rpm and 45 rpm disks and 8" and 5.25" computer floppies. I suggest there should be an automatic right to transfer any and all recordings in these and any other disused and obsolete formats to more durable current formats. Transferring the content should confer no additional inherent right of ownership or trading, just the right to continue to be able to enjoy content already paid for.

There should also be a blanket exemption for copying material whose copyright ownership is unknown and cannot be established after reasonable inquiry - so-called 'orphan works'.

3. There should be no protection for TPMs applied to material that is already in the public domain or has been issued under a permissive licence such as Creative Commons or the GPL. There have been several cases of public domain and other freely available material being infected with DRM by MS Zune players.

Similarly there should be no protection for TPMs that have become public knowledge, such as the CSS code used on DVDs.There has never been a successful prosecution for its use anywhere in the world, and it is now used by the DVD Alliance merely to restrict and restrain trade, and particularly to try to limit functionality of the Linux operating system as compared with Microsoft and Apple products.

4. New Zealand has accepted the value of parallel importing, and has already rejected the imposition of 'region codes' on DVDs. I propose a new clause stating simply that no offence is committed by anyone that bypasses, unscrambles or decodes any TPM, part or all of whose purpose is to restrict functionality of a product according to geographical location, to the extent needed to bypass tbe region code restriction.

This is proposed in light of a recent Philips patent for a system of encrypting region codes along with the program material, so that the mere act of descrambling and reading them would be unlawful under the DMCA, and the NZ Draft. Having refused region codes at the front door, we do not need to let them in at the back.

Our lawmakers are generally responsive, and it is not too late to press for changes. What changes we can get will depend how forcefully we can press - and how vigorous is the opposition lined up against us.

Opinions and suggestions welcomed.