RE: A thought about H.R. 2281 - Anti circumvention

[Ann Okerson <aokerson@pantheon.yale.edu>]

From: Ewan.J.Kirk@solent.ac.uk
Date: Mon, 8 Jun 1998 14:01:08 +0100
Subject: RE: A thought about H.R. 2281 - Anti circumvention


>On Thu, 4 Jun 1998, Rick Anderson wrote:
>>   Doesn't current copyright law exist to protect all information
>> (digital or otherwise) both before and after it's been distributed?
>
>Yes it does but the copyright owner has a limited bundle of rights. A
>legal right to control who can access a work once the work has been
>distributed is not one of them.  As you described, 2281 creates a new
>right to control post-sale access.

[snip]

>Imagine if all information were "rented" in this way and never purchased
>outright. The first-sale doctrine which enables the used book market,
>sharing of books between friends and family, and donations of books to
>libraries would be moot.  Uee of resources in libraries would be tracked
>in detail by the publishers enabling a per-use fee structure. Or the
>library patron number 3 would be out of luck because the library only paid
>for "two reads" of the book she wanted to look at.  Archiving would be
>impossible (or extremely expensive).
>
>Is that the sort of world that the technical protection systems are
>leading us to?  I think yes and I think that the "access control right" in
>2281 would bring us there faster and with no leeway for "fair use"
>principles.
>
>Laurel

I joined this discussion half way through, so excuse me if I repeat
anything already said.

With regard to Laurel's comments concerning right to control access, I
agree that it is highly likely that this will tip the balance unfairly
towards the copyright owners and away from the users. In framing this law,
sight appears to have been lost of the objective surrounding the percieved
need for such technical protection systems - to protect the restricted
rights of copyright effectively in the digital age. 

Surely then a way to get around this problem is to ensure that fair use is
accounted for, and subject the provision in H.R.2281 to an exception for
the purposes of fair use? An exception for fair use would be allowed under
Article 11 of the WIPO Copyright Treaty, which H.R.2281 is seeking to give
effect to - the phrase " ...that restrict acts...which are not authorized
by the authors concerned or permitted by law." in relation to technical
protection implies that there is room to allow for fair use under the
phrase 'permitted by law'. 

Ewan Kirk