If a draft copyright law presently before Parliament is passed it will mean that anyone wanting to bypass a technological protection mechanism (TPM) to copy a digital work will either have to go to the copyright owner direct or through a library, college or university.
Copying portions of others’ work for, for example, review or private study would be a “permitted act” under the proposed new law, but the draft legislation also exposes the limits of technology.
Over the centuries, a network of both prohibitions and permissions has developed with the aim of both protecting the rights of authors — for a finite period — while also allowing their works to be discussed, used and adapted by others in the interests of progress.
Now, we are sticking a most unsubtle technology into the middle of this delicate human structure — one that embodies a black and white view of the ethics of copying and communication. Technological protection mechanisms have no way of divining the intent behind any act of copying, and so will, inevitably, make the actions the proposed law allows almost impossible.
Given human nature, similar blunt weapons will be devised that will allow users to either evade or — as the draft law curiously puts it — “spoil” the protection mechanisms.
After a few decades of such an arms race between TPMs and TPM-spoilers, many digital works will find themselves encased in a mouldy crust of redundant protection mechanisms which have long ago been circumvented, and with new, temporarily effective mechanisms built on top of this structure.
The problem with arms races is that weapons tend to pass into the hands of those with dubious motives. The police will not view the uncontrolled spread of sophisticated cryptography as a positive development. At the same time, privacy champions will fear an escalation in cracking tools.
Our legislators’ answer to this problem is to put the “human” back in the process — to let a “qualified person” judge whether a particular act of copying is permissible (see page 10).
Librarians and archivists are assumed to be reasonably up-to-date regarding copyright law; teachers and lecturers perhaps less so. But, it’s a fair bet that most of them are little more competent when it comes to technology than any other member of the public. But they will, effectively, be expected to keep up with technology’s most opaque developments: digital security and cryptography. In addition, they will be charged with a complex set of responsibilities and checks associated with allowing access to works they keep in an unprotected format.
The attitude behind the proposed law is almost one of “guilty until proved innocent” — until a qualified person checks your proposed act (of copying) it is assumed you may have nefarious intent.
This is not normal. The burden of proof should be on the copyright owner to demonstrate that a TPM-evading act is not permitted, otherwise such an act should be assumed to be legitimate.
Judge David Harvey suggested last year that protection could eventually be imposed independently of the law, via a private contract drafted by the copyright owner, detailing conditions of access. As there are always dangers with contracts, a set of minimum standards should also be established, similar to those embodied in the Consumer Guarantees Act.
However, if the Amendment Bill is passed in its current form, users, faced with having to jump many hurdles to perform a “permitted act” of TPM evasion, may decide “it’s just not worth the bother”. We would be better served by a law that puts that phrase into the mouth of a copyright owner contemplating legal action.