RE: DMCA alternatives

["Chris Zielinski" <informania@supanet.com>]

Friends,

This note is in regard to "a right of access".

Technically, fair use/dealing is not considered a right, but an exception
to copyright - this might be splitting hairs, since most discussions of
copyright treaties - notably the European Copyright Directive (ECD) and
the WIPO Copyright Treaty (WCT) - group "rights and exceptions" as a
single category.

It should be noted that the ECD requires rightsholders to provide
mechanisms for circumvention for fair use exemptions, while the WCT allows
for existing exemptions, and the circumvention clause is written in such a
way as to allow for fair use.

On another list, my friend Mark Perkins noted that "in the USA, things are
slightly different due to the Constitutional restriction on copyright
legislation." Although in the DMCA there is a provision for review of
exceptions by the US Librarian of Congress, "the first review came out
against expanding exemptions, and the cases so far seem to point in that
direction too. This may go all the way to the Supreme Court, perhaps on
the basis of whether DMCA 1201 is an end-run around the Copyright Clause
in the US Constitution, and is thus pre-empted."

More broadly, there are very few examples of a right of access to
information of any kind, anywhere - exceptions include Freedom of
Information provisions granted under some national jurisdictions.

The main international instruments relating to human rights are largely
silent on the matter or contain, as is typical with such documents,
nothing but mealy-mouthed generalisations about "the right to education"
or "the right to knowledge". These are very rarely translated into
anything tangible (but see the very rarely applied 1971 Paris revisions to
Berne, which allow developing countries the right to translate and
re-publish, by statutory licence if necessary, "educational materials").

For some years now, I have been campaigning for the recognition of a
category of "essential information" - in the sense of "information
essential for human development" to which an access right should be
granted. This proposed expansion of the public domain is much broader than
an exception for fair use. I have been pleased to see this beginning to
appear in such works in progress as Unesco's draft recommendation on
Multilingualism and Universal Access in Cyberspace (which can be found and
commented on through http://www.unesco.org/webworld/).

That recommendation, by the way, includes the following recently added
amendment:

"M29 - Member States should work to ensure that the principle of fair use
is not weakened through inappropriate use of technical means to restrict
access or ensure security. In particular, Member States are encouraged in
their national and international deliberations on intellectual property
laws to ensure free access to public domain information (such as
statistical, regulatory, environmental and safety-related information)
which is essential for citizens in a modern democratic society."

Chris Zielinski
Principal Consultant, Informania Ltd
and Director, Information Waystations and Staging Posts Network
Tel: Home: 0044-1730-301297 Office: 0044-1730-710324
Mobile: 0797-10-45354 Fax: 0044-1730-265398
e-mail: informania@supanet.com  web site: www.iwsp.org