Ecuador Likely To Legalize DRM Circumvention In The Exercise Of Fair Use Rights — Something TPP Will Block
from the that's-what-I-call-Good-Living dept
Eighteen months ago, Mike wrote about the DMCA being abused to censor stories in an Ecuadorian newspaper that someone in the government there apparently didn’t want out in the open. But Boing Boing points us to a post by Andrés Delgado from a few weeks back which offers hope that some good things could be happening in Ecuador in the field of copyright. It concerns the country’s New Intellectual Property Legislative Proposal, which was drawn up using public input on the open WikiCOESC+i:
the virtual tool that’s been designed for the collective, transparent and democratic construction of the Organic Code for the Social Knowledge and Innovation Economy — COESC+i.
The tool has been specifically designed to facilitate popular participation into the workings of the COESC+i, with visitors able to directly contribute their comments, criticism and encouragement regarding the project. The seeks to put into law the established directives in the Constitution of the Republic and the National Plan for Good Living, both of which aim to guide Ecuador’s transition away from a productive matrix based on monopolistic exclusion through the extraction of finite resources toward a more social, supportive and democratic economic system based on the intensive use of our collective and infinite resources: knowledge, creativity and innovation.
The “Good Living” project referred to there was discussed by Techdirt back in 2014. In total, there were over 2 million visits to WikiCOESC+i, and over 38,000 edits to the text. As Delgado explains:
The result was a Legislative Proposal that rightfully balanced the rights of the general public with those of the creators and holders. Maximizing the use of limitations and exceptions allowed by International Treaties and recommended by the United Nations Special Rapporteur in the field of cultural rights.
The Law Proposal was submitted to Ecuador’s National Assembly in June of this year, and more public consultations were conducted. As the result of those, and taking note of input from Creative Commons:
Article 121 of the Updated Law Proposal now allows the circumvention of DRM-protected works to exercise any fair use legally defined.
Delgado explains why that’s such a big deal:
in countries like USA and Canada? — and now in all those enforcing the mandates of TPP? — the software used to protect works in the digital realm creates a paralegal system that gives firms the power to control access to digital content even when that goes against the uses permitted by law. Sometimes this can be really serious, 40% of the source code of insulin pumps has never been inspected by independent security researchers and nearly 1.4 million cars were recalled by Chrysler due to the discovery of a vulnerability that allowed to access remotely the steering and brakes.
These are issues that Techdirt has discussed before, and it’s really extraordinary that the copyright industry managed to convince so many countries to bring in laws actively preventing this kind of scrutiny that could well save lives at some point. It remains to be seen whether Ecuador’s reasonable approach is challenged during its passage through the legislative system, or whether the country’s commitment to “Good Living” is strong enough to allow the circumvention of DRM in the exercise of fair use rights.
Even if it does, what’s particularly frustrating here is that no country that ratifies TPP can ever follow suit, as Delgado mentions. That’s just one aspect of TPP’s ratchet effect, which is likely to ensure that copyright can never be changed to benefit the public if it also adversely affects publishers in any way. In such cases, TPP’s corporate sovereignty provisions would allow a foreign publisher to sue the government involved for what would be claimed was an “indirect expropriation” of the investor’s future profits. Combined with the usual unthinking resistance from copyright maximalists, that additional risk would make such action politically infeasible.