The Reproduction Right
The core metaphor and manifestation of current copyright policy is the grant of an exclusive right to copy a work. This metaphor emerged at a time when the creation of physical copies was the primary means by which creative works could be commercially exploited. This mechanism allowed the creator to thus benefit from such exploitation, and arguably provided greater incentive for the creation and dissemination of such work. Over time, first with the rise of broadcast technology and now with digital technologies, the emphasis on control of physical copying has become more problematic. Policy has adapted to changing technology and emerging media largely through attempting to redefine or extend notions of "copying", rather than a return to what is the underlying rationale of the right to benefit from commercial exploitation.
This emphasis on copying has resulting in a number of problematic issues, two of which are addressed by the position paper. The first issue is whether the existing definition of copying is sufficient to protect copyright owner rights as new technologies and media emerge. A second issue raised directly by digital media such as the Internet and World Wide Web (WWW) is whether transient and/or incidental copies made as part of a dissemination process should be covered by such an exclusive right.
There are other issues as well that may need to be addressed in this or future considerations of copyright policy. One is the ability of copyright owners to exert rights over subsequent uses of copies, once they are made and sold. Another set of issues is covered under the umbrella of "Fair dealing" or "Fair use" - principally, does or should the exclusive right to copy extend to some or all situations where there is no commercial exploitation? To an extent, this is addressed in a later section on permitted acts and exceptions (part 8).
An emerging issue that is only addressed peripherally in the position paper is digital (electronic) rights management (DRM). While still under development, there are already discussions that DRM could be used to transcend the tradition notion of copies exchanging hands and ownership (with the attendant transfer of rights), transforming a right to copy to a right to control all aspects of access and use of content while maintaining full legal ownership, in effect abrogating all user rights. The Ministry should begin considering the implications of this emerging technology and address the issue of what digital rights should be protected, and to what degree.
Storage and Digitization
The current copyright language seems to cover digital copying under the terminology of "any material form", or for specific creative works "storing the work in any medium by any means." I see two issues that may call for clarifications in the future. The first is whether or not some transient or digital works may or not be of a "material form". A point is made by a number of scholars that digital content can be considered immaterial. As the position paper suggests (par. 39), this could be covered by an explicit statement that "material form" includes current and future digital formats. This would be a simpler, and more technologically neutral approach than trying to enumerate specific forms.
The second issue relates to the specific and differential treatment of a series of what could be called creative work ("literary, dramatic, musical, or artistic work"). This could raise questions regarding how such work is defined, particularly if there is considered to be any differentiation in what might be considered copying in the two statements. I would thus urge the Ministry to formulate and utilize a single, consistent definition that is applied to all copyrighted works. The position paper suggests that this could be achieved by including the creative works statement as a subset of a more general definition (par. 42), "making it clear that "material form" may include storage, but does not necessarily have to." I find that there is still a degree of uncertainty in that approach, which could create problems in application. Is it storage of certain types of content that is covered but not others? Is it that arguments can be made that certain applications are covered but not others - and if so, under what conditions? A content and technology neutral approach would seem to favor a clear and consistent definition.
The premise of the position paper is that the definition, whatever it is, should be as inclusive as possible, certainly incorporating digital or other emerging media. While arguably technology neutral, a very broad-based definition of copying may well shift the balance of rights (expanding copyright owner rights), and tends to create other problems, such as the question over transient and incidental copying. The Ministry may thus want to consider a narrowed definition of copying, creation of explicit exceptions, or a limiting of exclusive rights.
Transient Copying
The reasons for a more restrictive set of reproduction rights is evident in the consideration of how to deal with transient and incidental copying, particularly in digital media. The current definition of copying can certainly be extended to a variety of transient and incidental copies, and the WIPO Internet treaties seek to make that extension explicit. In addition, it is clear that any definition of copying that extends to nonphysical copies, or is broad enough to include future digital formats and media, will also have to cover the kinds of transient and incidental copying involved in the operations of the Internet and any other form of IP/packet-switched telecommunications system, digital display/replay systems and any analog systems using signal processing, and in the kinds of time-shifting activities traditionally covered by Fair Deal/Fair Use exceptions. Strict application and enforcement of such a broad definition would essentially criminalize most modern media use. As noted in the position paper (par.45), courts have tended to embrace rather than limit broad definitions and applications. Thus it is critical for policymakers to address the issue clearly, and in a way that will not hinder development and use of digital media.
The position paper, I believe, makes the proper judgment that too broad an assertion of reproduction rights is likely to be socially harmful, making an argument that "it is the purpose of the copying that should be considered" (par 46). Later, the paper proposes an exception only apply where "there is no independent economic significance" (par 49). This might seem to harken back to my previous argument that policy should shift from an emphasis on control of copying to an emphasis on controlling the right to extract commercial benefit. However, while perhaps embracing that concept, the Ministry seems intent on maintaining the copy metaphor, instead framing the basic question not in terms of copying vs. other rights, but in terms of whether one should deal with the issue by trying to define certain transient and incidental copies as not being "copies" in law, or by granting an exception to certain transient and incidental copies. In light of the current international intellectual property rights environment, it may be too early to focus on a paradigm or metaphor switch, but a reliance on an outdated metaphor is likely to continue to face problems as technology and media evolve.
Still, what the position paper discusses may be reasonable short-term solutions to the problem of transient and incidental copying. I do agree that, given the limited options, it would probably be better to address the issue through the granting of an explicit exemption rather than attempting to derive a definition that will cover some nonphysical digital copies while permitting the necessary range of transient and incidental physical and nonphysical copying involved in a wide range of communication and display technologies. The position paper reported what seemed to be a consensus position that transient and incidental copying inherent in the process of making an authorized use of the work should not create liability for copyright infringement.
The problem will arise with how to properly define the exception in a way that will capture the intent of encouraging creation, distribution and (authorized) use of content and new media, while restricting inappropriate uses. It is unlikely that any specification of a specific technology or approach will be viable in the long term, as technologies evolve, and infringers seek to use the explicit exception as a loophole to evade liability. Similarly, seeking an exception for specific uses is likely to result in similar problems. Even language limiting liability for copying for "authorized uses" may be problematic in terms of whether or not that includes exceptions, and what uses are considered appropriate under "Fair Dealing/Fair Use."
In the absence of radical reconceptualization, I would encourage the Ministry to focus on the exception approach, perhaps in connection with a limited set of compulsory licenses. Compulsory licenses (with or without compensation) can be used in those cases where there is clear public and social benefits to be gained from making content available via a specific medium or means. However, compulsory licenses may not be easily adapted to new media or technologies, and do pose a cost to copyright owners. Thus, it is also important to draft a class of exceptions that follows the intent of early intellectual property policy (protect commercial value while encouraging use), and uses language that is technologically neutral and broad enough to be extended to new technologies and media.
Language for an exception approach may be difficult to develop, but I would urge the Ministry to avoid citing specific technologies, processes, or uses, but rather identify one or more classes (types) of uses that would be exempt from liability. I would also urge the Ministry to err on the side of more exceptions rather than less. The broader social and economic impact of possibly criminalizing media or technologies, or of what are widely perceived as acceptable and appropriate uses, are likely to far outweigh any fringe economic losses (from some uses that might slip through) to copyright owners.
One class that I would urge protecting falls under the concept of "common carrier." In the U.S. common carriers refer to transit or transmission systems that carry all comers, where the carrier has no control over the good. Traditionally, as they have no control, they are exempted from liability (the liability remains with the shipper/owner of the good). This notion of common carrier could certainly be applied to all forms of display or replay devices and technologies, and to certain aspects of the media (such as certain aspects of ISP activities), along the lines of defining a "common carrier use" as any technology, medium, or process which transmits, stores, or displays/replays intellectual content in a content neutral fashion. Then, any transient or incidental copying made in "common carrier use" of authorized content, or of content/use protected by exceptions, would be excluded from liability. While I think the language might need to be carefully worked out and drafted, I feel that such an approach would be technologically neutral, protect authorized uses and appropriate exceptions, yet still permit actions against illicit copying. This also helps restore some of the enforcement imbalance, as returning focus to the illicit act, rather than criminalizing all copying. It could also cover part of the Internet Service Provider concerns, address more fully later.
Another class of exceptions could be the traditional fair dealing/fair use exceptions. Personally, I would argue to exempt all copying/use that had little or no negative impact on the commercial value of intellectual property, but I recognize that that is likely to be controversial, and raises questions of how to discern or measure such negative value. However, it would probably be useful to specify, either in this aspect or in a separate exceptions section, whatever specific exceptions uses the state might find beneficial to authorize (such as the making of authorized archival copies, media- or time-shifting for personal use, educational or governmental uses, etc.). One of the international trends in copyright policy and litigation seems to be aimed at reducing or restricting the traditional exceptions, and it is thus important to provide explicit exceptions where warranted (this will also be treated in more detail later).
In particular, it might be particularly useful to either specifically identify some technologies and/or media as either fitting the "common carrier use" definition, granting an explicit exemption, or a compulsory license. For example, one of my greatest concerns the potential, under a strict inclusion of transient and incidental copying, that the Internet could be shut down completely, as it is based on the notion of communication through the making of multiple copies. It could clarify and facilitate development to grant a compulsory license to copy any content placed legally on the Internet and made publicly available for unrestricted use. This could be done for important or significant cases, but would be cumbersome to try to specifically identify all desired applications.
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