[A2k] L&E and DRM/ TPMs

[Eddan Katz]

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I have tried to read through the multiple threads of this important
discussion and apologize for any repetition or for overlooking
relevant messages.

The campaign for a legal instrument to create minimum standards for
exceptions & limitations to copyright at WIPO is one of the most
promising international developments in the advancement of digital
rights and access to knowledge and it would be a shame for it to be
derailed due to misunderstanding and factionalizing. We at EFF have
been deeply engaged in this effort from its inception and are strong
supporters of the WBU and KEI effort for the visually impaired.

As has been previously explained, this effort is a part of the broader
WIPO campaign for exceptions & limitations stemming from the Chilean
proposal (http://www.wipo.int/meetings/en/doc_details.jsp?
doc_id=53350) that outlines the intertwined aspirations for exceptions
and limitations also on behalf of libraries and archives, for
educational purposes, and to promote flexibility for innovative
technology. This universal campaign is in turn a part of the broader
effort to integrate the development dimension of the norm-setting
activities at WIPO at its most fundamental level of institutional
mandate. I'm writing from Geneva during the 3rd session of the
Development Agenda meetings, at which there is a packed house of
delegates from the WIPO member countries. Dr. Francis Gurry, the new
Director General at WIPO, opened up the session yesterday by
describing the Development Agenda as the most important discussions
now taking place at WIPO. There are of course many reasons to remain
skeptical about the capacity to institute such fundamental change at
WIPO, but it would be an historic missed opportunity not to leverage
this momentum for real progress in WIPO's Copyright Committee to focus
on a positive agenda.

 From my understanding of the debate so far, it seems like the
significance of this shift in theoretical framework for justifying
copyright exceptions has not been fully appreciated. Rather than
relying solely on a market failure justification for implementing
exceptions and limitations, the development dimension articulates a
foundation of social justice and human rights. In fact, the counter-
proposals by rightsholders to reduce the WBU effort to a platform only
for licensing negotiations reveals how the overall campaign for
exceptions & limitations will try to be undermined. In addition to the
pragmatic consideration of the visually impaired community's state of
preparedness, it is our view that the priority of addressing the needs
of the visually impaired also makes sense in advancing the public
interest justification for greater balance in the global copyright
regime. The concerns of libraries and archives, the protection of
educational purposes, and the promotion of innovative services
represent a progressive broadening of the application of the
development dimension that is the bedrock of the WBU campaign.

Within this context, the insistence on a universalist articulation of
rights in the public interest from the outset is susceptible to being
undermined by collapsing all justifications for exceptions and
limitations to the adjustment of markets. While it is true that the
right to read is shared by the visually impaired and everyone else,
the social need for copyright exceptions for the blind is
uncontroverted. In regards to the discussion of the number of people
affected, it is precisely the fact that the visually impaired are a
minority historically so neglected by publishers that makes the social
justice and human rights justifications for copyright exceptions on
their behalf so palpable. Demanding that the delimitation of
exceptions for the visually impaired be universally enjoyed invites
the dominant market-oriented framework for justifications to swallow
up the development dimension that has been fought for so hard and
which has made such remarkable advances. Just as developing countries
have particular needs for copyright flexibility due to their stage of
economic development and cultural context, so particular
constituencies of the population such as the visually impaired have
more specific social and human needs. As the campaign for exceptions
and limitations more broadly moves forward, we will have to continue
to articulate the particular circumstances of the constituencies being
discussed.

In regards to TPMs, it is of course a core and consistent mission of
the EFF to defeat DRM as defective technology and to repeal or
alternatively significantly reform the DMCA. As has been rightly
pointed out, DRM has not been shown to effectively reduce piracy as an
empirical matter. The various industries which have implemented DRM in
their products more often seem to use DRM for anti-competitive
purposes and for enshrining business models anachronistic to the
digital environment. As we have been learning recently in conversation
with our colleagues from the reading disabled community, the
initiatives undertaken to promote greater accessibility of digital
works have implemented some forms of technological protection as an
apparently pragmatic necessity in order to facilitate more access to
works. The ghettoization of assistive technologies and of digital
works available exclusively for the visually impaired is an
unfortunate vestige of the legal and market realities that have been
placed as conditions for facilitating accessibility. It seems to be
recognized as counter to the ultimate goals of the community to
mainstream accessibility and to take advantage of the profound freedom
enabled by digital technologies for equitable access. We hope to
engage the community and policymakers in real and substantive dialogue
about long-term alternatives to DRM, even in their current speed-bump
iterations.

One of the more constructive issues that have been raised in this
recent discussion is in regards to the DMCA exemption. As Stallman I
think correctly pointed out, even the current exemption being
considered for renewal under the Copyright Office rulemaking is
insufficient to enable meaningful access to locked up works. This is
not because of a lack on the part of the exemption itself, but rather
a structural problem with the DMCA in regards to the asymmetry of the
exemption's applicability only to the act-of-circumvention in 1201(a)
(1), but not to the circumvention device bans of 1201(a)(2) for access
control and 1201(b) for copy control. In other words, the exemption
that allows a reading disabled individual to circumvent TPM does not
extend to the distribution of a circumvention device that would allow
them to do so. We believe that a meaningful exemption for
accessibility that actually enables individuals to engage in self-help
would extend to circumvention devices as well, rather than only those
with the technical expertise to hack the DRM or have to ask for the
help of an "authorized entity." It may be worth discussing further
whether Article 6 of the proposed WBU Treaty facilitates the more
realistic self-help scenario of enabling the distribution of
circumvention devices or if it may be interpreted to perpetuate the
asymmetry evident the DMCA. All that having been said, we support the
National Federation for the Blind proposed exemption and engagement
with the Copyright Office Rulemaking as opposed to a boycott of the
process for example because of the incremental gain that the renewal
of the exemption affords.

Returning to the factionalizing of advocacy for the exceptions and
limitations campaign more broadly, I think a great deal can be learned
from the organization, the evidence-gathering, and the persistence of
the WBU-KEI effort for the visually impaired. At EFF, we have been
working most especially on the exceptions for educational purposes,
which is in an earlier stage of organization as has been pointed out.
The lessons coming out of this impressive campaign are definitely
instructive, but they are even more so inspiring. We are proud to be
working together.


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Eddan Katz
Electronic Frontier Foundation
International Affairs Director