Should There Be A Right To Copyright Exceptions?

from the something-in-the-air dept

Last month I wrote about how the Netherlands is looking to introduce new flexibilities into its copyright laws, based on some interesting research on copyright exceptions. There must be something in the air, because a wide range of other groups are contemplating exactly the same approach.

For example, the main document of the UK government's consultation on copyright (pdf) devotes no less than 65 pages to the area, proposing exceptions for private copying, preservation by libraries and archives, research and private study, text and data mining, parody, news reporting, and use by the disabled, among others.

On the other side of the globe, during the Melbourne round of the secret TPP negotiations, a group of high-powered tech companies have been urging the inclusion of copyright exceptions as part of that treaty. As Sean Flynn explains:

the Computers and Communications Industry Association (CCIA) -- representing tech companies like Google, Facebook, E-Bay and Yahoo -- has been circulating a new proposal for adding copyright limitations and exceptions to "permit the smooth functioning of the Internet." It is incredibly well researched and supported and includes some good ideas. My favorite among them is a proposal for mandatory flexible limitations and exceptions to copyright in every system:

"Such exceptions and limitations shall permit the utilization of works and other subject-matter to the extent justified by the purpose of free expression (including commentary, criticism, and news reporting), participation in the cultural life of the community, transformative use, teaching, research, scholarship, personal use, and the functioning of, and innovation in, the digital environment, provided that such utilization is consistent with fair practice."
Finally, and perhaps most surprisingly, the French copyright enforcement body, HADOPI, has released a detailed questionnaire on copyright exceptions (pdf in French) as part of its research into the subject. Here's the introduction explaining the thinking behind the move:
Exceptions to copyright and neighboring rights represent the search for a balance between the need to respect copyright and neighboring rights and that of allowing the use of works with areas of freedom for the benefit of users.

This balance seems challenged today. Indeed, the development of new technologies, leading to new uses of works, (internet, social networks, streaming, cloud, scanning ...) and blurring the line between private and public, calls into question a law developed in part for a completely different context, and insufficiently adapted to these new uses.

This challenge is twofold. First, from a legal viewpoint, the current texts on exceptions do not take into account these technical developments and current uses of works in a fully satisfactory manner. This results in an increasing reliance on rights other than intellectual property, in particular Community law, in order to circumvent imperfections (competition law, human rights ...). Secondly, in terms of use, the ease with which a work may be appropriated and transmitted seems to render meaningless the concept of exceptions and raises the question of their suitability for the current context.

It therefore seemed useful to Hadopi to undertake this project to take stock of the issues and, where appropriate, make recommendations to address shortcomings of the present system and attempt to define a more satisfactory balance representing a new consensus. This new balance would not be limited to amending and supplementing the exceptions to copyright and neighboring rights, it could aim to establish a "right to exception" or a "right of exception", including the development of an independent legal doctrine, enforceable before judges and on a par with intellectual property law.
That's pretty bold, and extremely welcome coming from this particular organization, which hitherto has seemed to be more aligned with the maximalist view of copyright. If even HADOPI can see the need for not just copyright exceptions, but a generalized right to exceptions, maybe there is hope after all.

Follow me @glynmoody on Twitter or identi.ca, and on Google+



Reader Comments (rss)

(Flattened / Threaded)

  1.  
    identicon
    John Doe, Mar 23rd, 2012 @ 6:25am

    This is odd

    With governments around the world negotiating and passing copyright maximizing laws in secret, it seems odd that parts of those same governments are considering carving out exceptions? Could it be that the IP maximalists have finally gone too far? That the public has finally awakened to what is going on? That governments are finally realizing criminalizing much of the population isn't going to work?

    Nah, couldn't be.

     

    reply to this | link to this | view in thread ]

  2.  
    identicon
    Anonymous Coward, Mar 23rd, 2012 @ 6:27am

    Re: This is odd

    Seems more likely that while some in gov'ts are in the pockets of big corporations, there are some here and there who actually are sane and not in someone's pocket, and are trying to do good.

    But, obviously, if a change like this is proposed, the masses who are in favor of copyright will rise up and have worldwide (and internet-wide) protests to stop this, right? Right? *crickets*

     

    reply to this | link to this | view in thread ]

  3.  
    identicon
    Michael, Mar 23rd, 2012 @ 6:36am

    Re: Re: This is odd

    You can bet that the copyright maximalists will be out in full force spewing their venom at this proposal. After all, such a measure would promote the innovative, forward-thinking change beneficial to all but the bank accounts of the old guard.

     

    reply to this | link to this | view in thread ]

  4.  
    identicon
    Anonymous Coward, Mar 23rd, 2012 @ 6:44am

    Can someone please explain all the possibilities presented by the following sentence fragment:

    "..participation in the cultural life of the community, transformative use, teaching, research, scholarship, personal use, and the functioning of, and innovation in, the digital environment.."

    To me it sounds like ANY and ALL copying would be permitted. That is EXACTLY what the [strikethrough]tech[/striketrough]PIRATE industry has been doing all along and wants legalized.

     

    reply to this | link to this | view in thread ]

  5.  
    icon
    Josef Anvil (profile), Mar 23rd, 2012 @ 6:46am

    But..but..but... what about the children?

    The starving artists and corporations need to be paid for every eye and ear on their content. NOOOOOOOOOOO!!!!

    This can't be happening. How will Chris Dodd support his lifestyle? Cary Sherman will have to fire some of his servants, millions of jobs will be lost.

     

    reply to this | link to this | view in thread ]

  6.  
    identicon
    Anonymous Coward, Mar 23rd, 2012 @ 6:47am

    Re: This is odd

    you need to come to your senses and damn quick, too!

     

    reply to this | link to this | view in thread ]

  7.  
    identicon
    Anonymous Coward, Mar 23rd, 2012 @ 6:48am

    Re: This is odd

    you need to come to your senses and damn quick, too!

     

    reply to this | link to this | view in thread ]

  8.  
    icon
    Josef Anvil (profile), Mar 23rd, 2012 @ 6:54am

    Re: But..but..but... what about the children?

    The terrorists are winning

     

    reply to this | link to this | view in thread ]

  9.  
    identicon
    Anonymous Coward, Mar 23rd, 2012 @ 7:05am

    Must resist urge to wake up

     

    reply to this | link to this | view in thread ]

  10.  
    identicon
    John Doe, Mar 23rd, 2012 @ 7:06am

    Re:

    To play devil's advocate here, but if everyone has been doing this all along, shouldn't it be legal? If we are governed by consent and it is the people's consent that these activities should be legal, then I would say yes. /Devil's Advocate

    ANY and ALL copying is not being proposed as legal, just reasonable exceptions as to promote the progress of the useful arts rather than criminalizing a large portion of the world's population.

     

    reply to this | link to this | view in thread ]

  11.  
    icon
    Richard (profile), Mar 23rd, 2012 @ 7:08am

    Re:

    If the only impact of trying to stop it is to drive it underground and re-distribute the benefits from doing it to those who are prepared to break the law then trying to stop it is obviously a bad idea.

     

    reply to this | link to this | view in thread ]

  12.  
    identicon
    Anonymous Coward, Mar 23rd, 2012 @ 7:23am

    I think those people making such proposals wake up to the fact that strong IP laws also generate a lot of anger which translates to a wind change from acceptance to non-acceptance, which means in a few decades those industries could be facing massive public outcry to end those laws, specially when people can see alternatives that let you freely copy, distribute, modify and sell being successful.

     

    reply to this | link to this | view in thread ]

  13.  
    icon
    jupiterkansas (profile), Mar 23rd, 2012 @ 7:25am

    Re:

    Sounds like a list of all the things we're already supposed to have under fair use in the United States, but isn't specifically codified into law and something the content industries avoid taking to court at all costs.

    It's also something most people are going to do whether it's legal or not, so why needlessly criminalize everyone? None of these things are going to destroy the industry.

     

    reply to this | link to this | view in thread ]

  14.  
    identicon
    Anonymous Coward, Mar 23rd, 2012 @ 7:30am

    Re: This is odd

    Or in light of the growing public outrage over the draconian laws, negotiated in secret and illegally bought by the special interest groups, the governments may be providing lip service to the idea of balance in order to quell this outrage. Afterall, these are POLITICIANS and their constituents are pissed. Look carefully at the language put forth in these announcements...

    "First, from a legal viewpoint, the current texts on exceptions do not take into account these technical developments and current uses of works in a fully satisfactory manner. This results in an increasing reliance on rights other than intellectual property, in particular Community law, in order to circumvent imperfections (competition law, human rights ...)."

    They could easily be justifying the need for MORE draconian laws so it doesn't rely on other rights.

    "Secondly, in terms of use, the ease with which a work may be appropriated and transmitted seems to render meaningless the concept of exceptions and raises the question of their suitability for the current context."

    They could also secretly mean that if they are meaningless, then we don't really need them anymore do we?

    "It therefore seemed useful to Hadopi to undertake this project to take stock of the issues..."

    READ: Yeah we realize you are pissed and we'll agree to LOOK at it to pacify you until you go back to sleep.

    "...and, where appropriate, make recommendations to address shortcomings of the present system and attempt to define a more satisfactory balance representing a new consensus."

    READ: We'll decide what's appropriate and we'll make recommendations but not actually do anything unless it supports our agenda so that you calm down and go back to sleep.

    "This new balance would not be limited to amending and supplementing the exceptions to copyright and neighboring rights, it could aim to establish a "right to exception" or a "right of exception", including the development of an independent legal doctrine, enforceable before judges and on a par with intellectual property law."

    We COULD create a balance by adding a "right to exception" but we aren't going to say that we INTEND to do this since we are just saying this so that you will calm down and go back to sleep. Instead this is just a sweet dream for you to have when you do in fact go back to sleep.

    Words are cheap. Actions speak volumes. And given their previous actions, I think this sort of interpretation is more realistic. I hope they prove me wrong. Show me don't tell me.

     

    reply to this | link to this | view in thread ]

  15.  
    identicon
    DogBreath, Mar 23rd, 2012 @ 7:34am

    Sounds like HADOPI is playing the old bait and switch, or how to rope-a-dope

    Once HADOPI gets the "right to exception" / "right of exception" questionnaire answered, it will then set about in controlling that right by writing the very law that makes it as draconian and outlandish as HADOPI is itself. This line is very telling: "including the development of an independent legal doctrine, enforceable before judges and on a par with intellectual property law." Welcome to the "HADOPI Copyright Corps", where we control the horizontal and the vertical...

     

    reply to this | link to this | view in thread ]

  16.  
    identicon
    Anonymous Coward, Mar 23rd, 2012 @ 7:58am

    Rights for copyright exceptions?
    Now this is getting silly already, we don't need extra rights, we just need to get rid of copyrights entirely.

     

    reply to this | link to this | view in thread ]

  17.  
    icon
    Beta (profile), Mar 23rd, 2012 @ 8:33am

    We feel it necessary and beneficial to huff, and furthermore to puff.

    Countermeasures to lupine demolition rights represent the search for a balance between the need to respect the rights of wolves to free access and that of allowing the existence of little pigs within a defined lifespan for, uh, liberty and justice.

    This balance seems challenged today. Indeed, the development of new technologies, leading to new architectural modes, (bricks, mortar, steel deadlock bolts...) and blurring the line between sty and butcher block, calls into question a law developed in part for a completely different context, and insufficiently adapted to these new measures.

    This challenge is twofold. First, from a legal viewpoint, the current building codes do not take into account these new fortifications in a fully satisfactory manner. This results in an increasing reliance on methods other than blowing houses down, in particular impersonation of elderly relatives, in order to circumvent imperfections (would you like to come out and try these tasty slops?). Secondly, in terms of construction, the ease with which a brick wall may be erected seems to render meaningless the concept of masonry and raises the question of its suitability for the current context.

    It therefore seemed useful to BBW L.L.C to undertake this project to take stock of the issues and, where appropriate, make recommendations to address shortcomings of the present system and attempt to define a more satisfactory balance representing a new consensus. This new balance would not be limited to amending and supplementing permission to build with bricks, it could aim to establish a "right to another day" or a "right to get a little fatter", including the development of an independent legal doctrine, enforceable before judges and on a par with slaughterhouse tradition.

     

    reply to this | link to this | view in thread ]

  18.  
    icon
    Suja (profile), Mar 23rd, 2012 @ 8:51am

    a balance between the need to respect copyright

    Stopped reading there, as a rule of thumb, never respect something that doesn't respect you.

    It's like trying to create this "balance" between freedom and tyranny, as if tyranny is something we NEED and cannot live without.

    I seriously don't trust them. I have learned the moment they mention "balance" to expect the worst, they say this and that but the moment balance comes into play it's obvious they've got other ulterior motives they aren't discussing. And none of them are good.

     

    reply to this | link to this | view in thread ]

  19.  
    identicon
    DogBreath, Mar 23rd, 2012 @ 8:53am

    Re: We feel it necessary and beneficial to huff, and furthermore to puff.

    In short, HADOPI - W.O.L.F. Division (We Own Laws in France) will get a law passed to make any possession, manufacturing or teaching others how to construct individual bricks or brick houses illegal (no matter that said houses have completely law abiding uses), and any pig (i.e. "tasty" citizen) who uses bricks in any form is an automatic infringer on the rights of the Wolf to feed itself on said mentioned "tasty" pig,... err... citizen.

    It will be know as the "Mmmm BACON" law.

     

    reply to this | link to this | view in thread ]

  20.  
    icon
    Suja (profile), Mar 23rd, 2012 @ 8:54am

    Re: Sounds like HADOPI is playing the old bait and switch, or how to rope-a-dope

    Bingo.

    They might give us some kind of token prize whatever-or-other to make us happy, but they'll take with the other hand another right, another freedom. Like they always do.

    When people figure it out it'll be all "...But... But.. Look what we gave you!" and "...But....But... Balance!!!".

     

    reply to this | link to this | view in thread ]

  21.  
    icon
    TtfnJohn (profile), Mar 23rd, 2012 @ 11:10am

    Re:

    There's nothing here that isn't covered by fair use in the United States or fair dealing in Canada or the UK and similar concepts elsewhere.

    Bear in mind that we do most of what's on that list already both on and off line and, until now, there's not been a wolf pack of lawyers circling us every time we're in a coffee shop, bar or in church discussing or talking about (and transforming) a work covered by copyright.

    Not all copying is allowed or permitted under these proposals most notable "for profit" isn't covered. Also, remember that in few, if any, of these cases are there "true" (as in unchanged) verbatim copies made of an entire work only excerpts. Nor to all proposed uses affect only the "content" industry alone. Some apply to the software and IT business who in one form or another from open to closed source do this already.

    Nor will any of this result, in my opinion in lost sales, but open paths to greater sales.

    Then again, I know you're not going to buy that but I thought I'd waste my time anyway. ;-)

     

    reply to this | link to this | view in thread ]

  22.  
    icon
    Grant (profile), Mar 23rd, 2012 @ 11:13am

    Re: This is odd

    your problem is that you view governments as a single entity with one goal or focus. governments are big things that often have parts of it working against other parts of it. One agency might recognize the importance of restricting copyright while another agency only listens to copyright holders. You could even have different parts of the same agency working against each other.

     

    reply to this | link to this | view in thread ]

  23.  
    identicon
    Andrei Mincov, Mar 23rd, 2012 @ 2:09pm

    Destruction of capitalism always entails destruction of intellectual property

    This is how it always starts.
    First the statists, collectivists and utilitarians destroy copyright and intellectual property; then they destroy property rights altogether; then they start shooting those who happen to not benefit the collective.
    Every socialist country has gone through that.

    Using something that someone else had created against the creator's wish is NOT a right. The scope of such exceptions must be extremely limited. The only instance when it should extend to situations when the copyright owner expressly disagrees with the use is limited quotations from the work for the purpose of critiquing that same work.

    I have written about it in my old article at http://mincov.com/articles/index.php/fullarticle/copyright_and_the_great_socialist_degradation/

     

    reply to this | link to this | view in thread ]

  24.  
    identicon
    Anonymous Coward, Mar 23rd, 2012 @ 10:41pm

    Re: Destruction of capitalism always entails destruction of intellectual property

    I believe you are confused mate.

    Socialism is based on centralized control, the end of copyrights is the end of government control to tell others what to do, there is nothing more capitalistic than that.

     

    reply to this | link to this | view in thread ]

  25.  
    icon
    Mike Masnick (profile), Mar 23rd, 2012 @ 10:45pm

    Re: Destruction of capitalism always entails destruction of intellectual property

    First the statists, collectivists and utilitarians destroy copyright and intellectual property; then they destroy property rights altogether; then they start shooting those who happen to not benefit the collective.
    Every socialist country has gone through that.


    I am an exceptionally strong believer in property rights, capitalism and the free market, but it's delusional to think that copyright is "property." The purpose of property was to create a system that allowed for the most efficient allocation of *scarce* resources. Content is not a scarce resource.

    In fact, if you're going argue that copyright exceptions are somehow socialist, let's dig in and show you how copyright and patents are much more socialist than not having them at all. They're both *gov't granted* monopolies supervised by a central gov't board. They both deny people the ability to do what they want with their own property. They're both designed to appeal to the "collective" good will of the people.

    Using something that someone else had created against the creator's wish is NOT a right. The scope of such exceptions must be extremely limited. The only instance when it should extend to situations when the copyright owner expressly disagrees with the use is limited quotations from the work for the purpose of critiquing that same work.

    You clearly know nothing of the history of fair use and how valuable it has been.

     

    reply to this | link to this | view in thread ]

  26.  
    identicon
    Anonymous Coward, Mar 25th, 2012 @ 6:46am

    Bend over and I'll give you an extension you'll NEVER forget!

     

    reply to this | link to this | view in thread ]


Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here
Get Techdirt’s Daily Email
Save me a cookie
  • Note: A CRLF will be replaced by a break tag (<br>), all other allowable HTML will remain intact
  • Allowed HTML Tags: <b> <i> <a> <em> <br> <strong> <blockquote> <hr> <tt>
Follow Techdirt
A word from our sponsors...
Essential Reading
Techdirt Reading List
Techdirt Insider Chat
A word from our sponsors...
Recent Stories
A word from our sponsors...

Close

Email This