Permitted Acts and Exceptions
Whenever monopoly rights are granted, there must also be a related set of consumer rights granted (either to individuals or through state regulatory authority) to protect the balance of power in the marketplace. As copyright is the granting of a monopoly right to the intellectual property owner, balance demands that compensatory rights be granted to users. Traditionally, these balancing rights have occurred in two ways: by making the monopoly rights transitory, and by the permitted of exceptions to the monopoly rights. The lengthening of copyright terms has already significantly shifted the balance of rights in the first case. The limiting of exceptions will shift it even further. In fact, the limiting of exceptions that have been commonly perceived by the public as their inherent rights to certain uses has the potential to not only shift the balance further, but to trigger a social revolution against the notion of those monopoly rights. On the other hand, new digital media and technology may create new uses, and problems, calling for a reexamination of permitted acts and exceptions, including both the possibility of new exceptions as well as the revocation of older exceptions which may no longer serve their balancing purpose.
Thus, it is critical that copyright policy carefully consider permitted acts and exceptions, protect those that are widely considered essential and important, and even consider the creation of new classes of permitted acts and exceptions where socially beneficial, or to redress other shifts in the balance of owner and user rights.
Fair Dealing
Fair dealing encompasses a set of exceptions and permitted uses that have long been associated with the use of copyrighted material. Conceptually, these have tended to include a set of uses that are of arguable or potential social value, while having negligible negative impact on the commercial value of the copyrighted material. There has been some tendency to seek to restate the "Fair Dealing"/"Fair Use" exceptions as a specific, narrowly defined, set of exceptions, with the effect (if not intent) of restricting the exception. The Copyright Act 1994 seems to follow this modern tendency, by enumerating exceptions rather than identifying a general conception of fair dealing or a broad class of acts.
Section 41 of the Act deals with incidental copying (which has been addressed previously). Section 42 addresses news reporting, criticism or review. Section 43 addresses research and private study. These last two are addresses as uses, and thus are likely to be technology-neutral. The position paper argues, however, that it may be worthwhile to explicitly extend the language to deal with issues arising from digital media. There seems to be some concern that the perceptions of news reporting, criticism, and review may not extend to their Internet forms, and thus language should explicitly include them. I would suggest that it may be inappropriate to explicitly include one or more forms of media, for then it could be argued that the lack of explicit inclusion means that other media are not so privileged; that fair dealing rights should not be allowed for those media. Rather, I would suggest that if there is a concern about the extension to new media, that rather than explicitly enumerating media, that the language include a reference that embraces all forms of media; a statement that what is at issue is the purpose of use, not the medium.
The position paper notes that the research exception allows for only a single copy to be made, and notes that questions may arise about transient or incidental copying. While this may be covered by new language covering transient or incidental copying, that the Ministry should consider whether a specific reference to transient copying, or any specific number or timing of copying should be included in any new policy.
I would argue that the language of exceptions should focus on the purpose of the act, rather than any specific statement of limitations (of either numbers or timing of copies). If it is perceived to be necessary to put in place an explicit limit, I would suggest that rather than including an exception for transient or incidental, that language place a limit on the number of permanent and/or archival copies.
As someone who has researched Internet sites, I would also urge the Ministry to not place a limit on the amount of content to be covered by the exception. Such a limitation may be appropriate for the use of the copyrighted content in a report, (i.e. a review or news report should only include portions of the material, to not have a material impact on commercial value), but should not be extended to the collection of the raw material/content for research or review purposes.
Educational Institutions, Libraries and Archives
Some of the traditional "fair dealing" uses cover educational uses, including libraries and archives. Here there are strong arguments for the social value gained by excepted and permitted uses, although there are also arguments that can be made that those uses can have a negative impact on commercial value. I would argue that many, if not most, of these traditional uses need to be protected, and extended to digital media and technologies. As such, I concur with the Ministry's basic proposition that permitted acts and exceptions be extended to the digital environment (par. 165).
Archiving
As I argued earlier, it is important to have the ability within the digital environment to make archival copies of the Internet in whole or part. It is also important, as very few forms of media are truly permanent, that it be possible to make archival copies of intellectual content in multiple forms. It is also arguable that with the rise and potential predominance of digital media, that older content forms be made available in digital formats. The current law would seem to allow copying of "at risk" works by libraries, at least in those cases where alternative copies are not readily available. I would suggest that the Ministry support language that extends the right of archival copying to all works possessed by libraries or individuals, with the limitation that the individual, institution, or library not sell their originals, or make additional copies available to, third parties.
Digitisation and Making Available
The ability to digitize content and shift forms is, I believe, inherent in any archival right. It does, however, touch on two related rights/exceptions: format-shifting and making available. While format shifting will be discussed more thoroughly later, I would argue that format shifting for an individual's private use of authorized content is a permitted use. "Making available" is the more problematic issue.
As digital forms are easily copied, and can be made available to multiple users, it can easily be argued that too open an exception can have a significant negative impact on the ability of the copyright owner extract commercial value from the work. In other words, if a library makes a digital version of a book freely available to any user, that is likely to impact on subsequent sales for the book. There are, I believe, four alternative approaches to solving this problem. One is to allow archiving, but prohibit the use of the archive except to replace damaged or lost content. I believe that such an approach violates both the spirit and the letter of current exceptions, and should not be supported.
A second approach is to place a limit on "making available" that is tied to the original material. For example, if the library has a single volume of a book, then it can only make a single digital copy available at a time; but if the library has a collection of thirty copies, then up to thirty digital copies can be made available. Alternatively, a library may acquire a license that allows ten simultaneous uses of a database, and it would have to enforce that limit. Such an approach would, in effect, carry through into the digital environment the limitations of the analog/physical world.
A third approach would seek to address the primary concern of the copyright owner rather than once again placing an emphasis on copies. In this approach, the concern would be whether or not the "making available" of works impacts on their commercial viability. In such a consideration, it would be necessary to reject the presumption that any use is automatically harmful (as it usurps a commercial sale). Instead, I would argue the consideration of an approach that allows libraries to offer access to the degree that they can demonstrate they can limit subsequent copying or use. For example, to make materials available in forms or formats that are transient, or use TPM to restrict the ability to copy, regardless of the location. In essence, if the use is similar to using the material in a traditional way (in the library, or on loan from it), then it would fall under the exception.
The fourth approach is based on the argument that libraries serve a valuable social purpose in permitting and encouraging use of information and content, particularly for those whose access to such materials are limited (by resources or geography). This approach would argue that "making available" should be maximized. This approach, however, would likely have significant impacts on copyright owners and their ability to extract commercial value. The Ministry notes that it is not their purpose to promote general social welfare concerns, but policy should also not prohibit those concerns from being addressed elsewhere.
The stated preferred policy (par 175) is to permit only on-site access to only those materials made available in digital format by the copyright owner. This would seem to fall more in the first alternative outlined above. I would argue that this is too narrow an exception, and would in fact discourage copyright owners from making materials available in digital form. Rather, I would urge that the Ministry should support allowing libraries to digitize all content, at least for archival purposes, and to consider using one of the other approaches outlined above, one that will encourage and promote library use and libraries' use of digital media.
I would also like to add a brief discussion of the separate educational "making use exception." This exception does not seem to be directly addressed in the position paper. However, I find that the language in the Copyright Act 1994 that sets enumerates specific conditions and sets strict limits on the proportion of material that can be copied (Section 44 in particular) to be detrimental to education, and harsh enough to render the exception invalid except for the most minor examples. Particularly since the wording does not provide any allowance for use of works that while still under copyright might not be readily available for purchase at a reasonable cost. I feel that such narrow construction violates the spirit of fair dealing, and reduces the ability of students and teachers to utilize a range of materials for educational purposes. I would urge the Ministry to reconsider the language used in that exception.
The Ministry also raises the question of whether or not museums should be allowed to archive their collections digitally as well. I would urge the Ministry to extend the archive exception to museums, and to other institutions and individuals. If you own copies of content, particularly content copied on perishable materials, you should be able to protect that investment by making archival copies. However, I do understand that opening the right to archive entire collections to individuals could be misused. Thus it may be appropriate to limit the group that can obtain the exception. I did take a brief look at the language of 50(1)(b), but that seems to apply only to "public archives" as defined, and not to broader collections. I would argue for a broader definition of collection, to include the widest possible set of intellectual and creative works.
Interloan
Libraries are increasingly using digital technologies for the purpose of interlibrary loans. It reduces shipping costs, and mitigates against potential damage to the work in question. I would argue for the treatment of interlibrary loans primarily under a general "fair dealing", technologically neutral approach. That is, if the use would be permitted in terms of a traditional interloan (say the photocopying and mailing of a journal article for research purposes), then the use would be permitted using digital technologies (for instance, by faxing). Or, just a consideration that the use in question would have negligible commercial impact. I would argue against any separate treatment of interlibrary loans, or specific technologies or media.
Caching
Increasingly, educational materials are made available on the Internet. Under normal uses, those materials are open for access by users throughout the world. However, there may be cases where high-volume content is available overseas, or content may be posted only for limited materials. If large amounts of content are not available locally, local caching may serve to reduce access costs and facilitate use. This may be particularly true for New Zealand. (I could relate my experience in trying to get access to a video archived in the U.S. for a class in NZ - just let me summarize that is was both problematic and expensive to get multiple access in a timely fashion). Being able to cache the material locally would be a significant benefit.
As most educational material is open-use, the best approach would be to seek permission of the copyright owner to repost locally. Finding and contacting content owners may be problematic, however, so I can see the value of an explicit exception. However, I would argue that instead of an explicit exception, that it would be better to have this kind of use covered under a broader definition of permitted use or exception (say as transient copying or "common carrier" copying, or as a valid educational exception).
Distant Learning
The key issue with distance learning is that there are a variety of "fair dealing" exceptions that have evolved that apply to the use of materials within classrooms, under the presumption that this helps to restrict access and use to legitimate faculty and students, the use is transient, and the location restriction makes it unlikely that the copying/use will be more widely available. For distance learning, however, that classroom may involve more public forums and media.
I would urge the Ministry to consider the inclusion of distance learning exceptions, but under a technology-neutral "classroom" exception. That is, to allow uses that are permitted in classrooms to also be extended via appropriate media to registered distance education students. For example, at the University of Tennessee, we have educational support software that allows us to offer access to materials to registered students, but to prohibit general access. Such uses should be considered an extension of the classroom, and permitted.
Time-Shifting
I would make an argument that the Time Shifting exception be extended in a technology and content neutral way, rather than existing specifically for broadcast or cable programming. Referring to my earlier discussion of a right to communicate, I would argue that a fair dealing exception for time shifting be granted for any content made available in a broadcast form/use (that is, made widely available for general use, and not merely through broadcast media). The point is that the choice to make content/works available through a "broadcast" use is based on the content owners choice that value comes from widespread access and use, and time-shifting actually encourages rather than harms such value. Thus, the use of time shifting for "broadcast" content enhances rather than harms value.
Format Shifting
There would seem to be two conceptual conflicts at the roots of the debate over the validity of format shifting. The first is the fundamental issue of whether, when an information good is being purchased, the good being purchased is a particular formatted copy, or the content in that form. If you accept the argument that the transfer of a copy only gives you use of that specific physical copy and format, then it follows that format shifting, as it transfers the content to another form or even another manifestation of the same format, is illegitimate. On the other hand, if what is being exchanged is the content (with or without a specific physical form), then the purchaser then should be able to utilize the content in whatever form or format they desire. In this case, format shifting for private use would be appropriate. The second fundamental issue is whether copyright controls the right to commercial benefit from copying, or extends to the ability to control use and copying beyond the "first sale." Under the "first sale doctrine," copyright owner rights are limited after that first sale of a copy, which gives a stronger argument in support of format shifting.
There is likely to be continuing strong debate (and litigation) over the degree to which copyright owner rights extend beyond the first sale. I would urge the Ministry to consider including a consideration and elaboration of the first sale doctrine, as well as addressing a somewhat more limited format shifting exception for private use. Explicit language setting out rights and limits might preclude future litigation, and by clarifying the rules, foster innovation.
I would also urge the Ministry to format any language on format shifting to also be technologically and content neutral. While the debate today is predominantly in terms of music, it is likely to expand to new forms and media rapidly (already there is a rise in electronic books - does purchase of an electronic version let you make a print copy at home?), and might be subsumed in other rights (time-shifting often subsumes a format shifting as well; there are also a variety of other devices (print readers for the blind, digital video recorders) that shift format or process content in a way that could be considered a format shift). The language of a format shifting exception should not be restricted to type of content (music), nor to a particular technology or medium. Thus, I would propose using language reflecting the following:
The owner of copyrighted content may make copies of that content in other forms and formats, for personal noncommercial uses only, and only while still maintaining ownership of the original.
I am also not convinced that the right should be limited to a single copy, as that may be confounded with issues of transient and incidental copying, and may be problematic with backing up digital storage media, or when there are multiple devices at work. I do support the "use" argument, that this exception should be restricted to the personal use of the copy owner. (The use of domestic might also be problematic in terms of, say, including use in cars, in portable devices, or in players at a private office). I would suggest using noncommercial rather than domestic-it gets at the main issue of not permitting copies for sale, and personal would arguably preclude giving away copies. If language is to limit the number of copies, I would suggest again using the phrase "permanent copies" instead of copies, to avoid transient copying issues, and problems associated with temporary storage on replay media.
Levy Schemes
Copyright holders often argue that allowing format shifting, and the making of private copies, causes economic harm in terms of lost sales. They also often suggest that that harm should be compensated through the use of levies on the materials that might be used to make such copies. The argument might be somewhat more compelling if they spoke in terms of a compulsory licensing, funded through a levy, and based on more reasonable estimates of actual harm, but they seem to want the levy while maintaining that the act itself is illegal. What that amounts to is an attempt to shift the costs of enforcement from the copyright owners to the state and to the consumers of the levied media or technology. While shifting the balance, there is an additional unfairness built in, in that the levy must also be paid by those who do not engage in the illicit activity. It also could tend to increase the problematic activity, as consumers figure since they're already paying for copying, they may as well engage in the activity. Thus, I concur with the Ministry that a levy scheme does not seem appropriate at this time.
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