Digital copyright protection could lead to ‘culture editing’

Old work could become inaccessible to the audience if the emphasis is put on newer work, warns lecturer

Excessive digital copyright protection will let producers and mediators of digital content edit our culture, warns Stephen Marshall, senior lecturer at Victoria University.

Marshall warns such excessive protection is the threat posed if the Copyright (New Technologies and Performers’ Rights) Amendment Bill goes through Parliament in its current form.

“I start with a basic presumption; everything of significance to our culture in the next few decades will be digital,” Marshall said at an InternetNZ workshop in Wellington last week. “Digital storage is no longer a strange new form of information, it’s mainstream.”

The Bill as it stands restricts the “permitted uses” of copyright material — for example, for review or private study — and allows access only through approved channels such as educational establishments and libraries authorised to possess equipment that gets around technological protection measures (TPMs) that are increasingly being built into digital works.

A tendency among some artists and their managers to emphasise newer work could mean the old becomes inaccessible to the audience, Marshall suggests. For instance, if those in control decide to remove the cannon-accompanied finale to Tchaikovsky’s 1812 Overture from history, they could do that.

“You’d be told ‘no, the 1812 was always this quiet piece of choral music; there were never any cannons’.”

Even libraries and other authorised custodians of history will struggle to keep up to date with the varieties of TPMs and find a legal way round all of them, he says.

More realistically, the capability of Tivo and similar personal video recorders to allow someone to build a library of episodes of their favourite TV shows could be stymied in the cause of making money by selling boxed DVD sets.

“As a lecturer, I’d like to make copies of web pages for students, but I can’t do that without permission,” Marshall says. “The university will let me give them the URL, but they may not have a computer to access the site.”

The intent of copyright legislation should be to prevent copying, says associate professor Suzy Frankel, also speaking at the workshop, but the effect of many TPMs will be to prevent access to the material. This inverts the original purpose of copyright, which was supposedly to assist education and creativity.

Frankel, too, objects to the wording of the Bill that requires someone wanting to circumvent a TPM to go to an authorised intermediary. The pertinent clause in the Bill [226D] “needs to authorise for circumvention anyone who wants to do a permitted act,” she says.

InternetNZ used the workshop to present its variant of the “notice and take-down” regime, whereby copyright owners can request ISPs to remove infringing content. Often the notice is unsuccessful because the person who posted the content cannot be found.

InternetNZ calls its proposed scheme “notice and notice”. When an owner notifies the ISP, the ISP passes the notice on to the alleged offender, if they can be found. If that person has not replied justifying their action within 30 days, the material is taken down. If they do reply refusing to take down the material, the ISP steps out of the picture, leaving further discussion to the two main parties.

A similar regime is already used in Canada.

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